HomeMy WebLinkAbout94-593 CoulterJimmy B. Coulter
208 Nantucket Road
R.D. #2
Monongahela, PA 15063
Dear Mr. Coulter:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
August 22, 1994
94 -593
Re: Conflict, Public Official /Employee, School Board Member, Use
of Authority of Office or Confidential Information, Lawsuit
filed against School District and Board Member Individually,
Defense, Settlement, Vote, Executive Session, Lobbying.
This responds to your letter of July 15, 1994 in which you
requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law
presents any prohibition or restrictions upon a school board member
with regard to official action or confidential information related
to a lawsuit brought against the school district and the school
board member individually.
Facts: As a School Board Member for the Ringgold School District,
you seek the advice of the State Ethics Commission with regard to
a civil lawsuit which has been filed by Mr. George Henson — who is
another School Director for the School District — against the
Ringgold School District, a former Board Member, a former Business
Manager, a law firm, and you. The lawsuit arose from a physical
altercation which occurred at a board meeting on August 31, 1993.
The lawsuit was brought in six (6) counts and was based in theories
of slander and assault, seeking compensatory and punitive relief in
excess of $25,000 per count. You note that you have been informed
that the School District has an obligation to defend and indemnify
against such a claim. You seek advice from this Commission as to
restrictions /prohibitions of the Ethics Law applicable to Mr.
Henson and to you with regard to your official involvement with
this litigation. You have specifically posed the following
inquiries:
Coulter, Jimmy H., 94 -593
August 22, 1994
Page 2
1. Whether you or Mr. Henson may participate in any
votes regarding the defense, compromise or
settlement of this action;
2. Whether you or Mr. Henson may participate in
executive session discussions or debates on the
lawsuit; and
3. Whether you or Mr. Henson may lobby, discuss with
or attempt to influence the opinions of other board
members regarding the defense, compromise, or
settlement of the lawsuit.
You presume that since Mr. Henson has chosen to sue both
current and former District officials including yourself, that
involvement in any decisions on behalf of the School District would
be a clear, obvious and patent conflict of interest which would
disqualify you and Mr. Henson from all related votes and other
official activities.
Noting that this litigation has been commenced and requires a
response in the near future, you request an expeditious response.
Discussion: It is initially noted that pursuant to Sections 7(10)
and 7(11) of the Ethics Law, 65 P.S. 55407(10), (11), advisories
are issued to the requestor based upon the facts which the
requestor has submitted. In issuing the advisory based upon the
facts which the requestor has submitted, the Commission does not
engage in an independent investigation of the facts, nor does it
speculate as to facts which have not been submitted. It is the
burden of the requestor to truthfully disclose all of the material
facts relevant to the inquiry. 65 P.S. 55407(10), (11). An
advisory only affords a defense to the extent the requestor has
truthfully disclosed all of the material facts.
It is also initially noted that although your letter of
request sought advice not only as to your own conduct but also as
to the conduct of Mr. Henson, Mr. Henson has not joined in your
request nor is there any indication that he has authorized you to
make this inquiry on his behalf. Therefore,,,this advice shall be
strictly limited to responding to your inquiries- with regard to .
your own conduct. This is because the parameters of the Ethics Law
for issuing advisories do not permit responses to third party
requests.
As a School Director for Ringgold School District, you are a
public official as that term is defined under the Ethics Law, and
hence you are subject to the provisions of that law.
Section 3(a) of the Ethics Law provides:
Coulter, Jimmy H., 94 -593
August 22, 1994
Page 3
Section 3. Restricted Activities.
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest.
The following terms are defined in the Ethics Law as follows:
Section 2. Definitions.
"Conflict or conflict of interest." Use
by a public official or public employee of the
authority of his office or employment or any
confidential information received through his
holding public office or employment for the
private pecuniary benefit of himself, a member
of his immediate family or a business with
which he or a member of his immediate family
is associated. "Conflict" or "conflict of
interest" does not include an action having a
de minimis economic impact or which affects to
the same degree a class consisting of the
general public or a subclass consisting of an
industry, occupation or other group which
includes the public official or public
employee, a member of his immediate family or
a business with which he or a member of his
immediate family is associated.
"Authority of office or employment." The
actual power provided by law, the exercise of
which is necessary to the performance of
duties and responsibilities unique to a
particular public office or position of public
employment.
In addition, Sections 3(b) and 3(c) of the Ethics Law provide
in part that no person shall offer to a public official /employee
anything of monetary value and no public official /employee shall
solicit or accept anything of monetary value based upon the
understanding that the vote, official action, or judgement of the
public official /employee would be influenced thereby. Reference is
made to these provisions of the law not to imply that there has
been or will be any transgression thereof but merely to provide a
complete response to the question presented.
Section 3(j) of the Ethics Law provides as follows:
Coulter, Jimmy B., 94 -593
August 22, 1994
Page 4
Section 3. Restricted activities
(j) Where voting conflicts are not
otherwise addressed by the Constitution of
Pennsylvania or by any law, rule, regulation,
order or ordinance, the following procedure
shall be employed. Any public official or
public employee who in the discharge of his
official duties would be required to vote on a
matter that would result in a conflict of
interest shall abstain from voting and, prior
to the vote being taken, publicly announce and
disclose the nature of his interest, as a
public record in a written memorandum filed
with the person responsible for recording the
minutes of the meeting at which the vote is
taken, provided that whenever a governing body
would be unable to take any action on a matter
before it because the number of members of the
body required to abstain from voting under the
provisions of this section makes the majority
or other legally required vote of approval
unattainable, then such members shall be
permitted to vote if disclosures are made as
otherwise provided herein. In the case of a
three - member governing body of a political
subdivision, where one member has abstained
from voting as a result of a conflict of
interest, and the remaining two members of the
governing body have cast opposing votes, the
member who has abstained shall be permitted to
vote to break the tie vote if disclosure is
made as otherwise provided herein.
If a conflict exists, Section 3(j) requires the public
official /employee to abstain and to publicly disclose the
abstention and reasons for same, both orally and by filing a
written memorandum to that effect with the person recording the
minutes or supervisor.
In the event that the required abstention results in the
inability of the governmental body to take action because a
majority is unattainable due to the abstention(s) from conflict
under the Ethics Law, then in that event participation is
permissible provided the disclosure requirements noted above are
followed. See, Mlakar, Advice 91- 523 -S.
Pursuant to Section 3(a) of the Ethics Law, a public
official /public employee is prohibited from using the authority of
public office /employment or confidential information received by
Coulter, Jimmy B., 94 -593
August 22, 1994
Page 5
holding such a public position for the private pecuniary benefit of
the public official /public employee himself, any member of his
immediate family, or a business with which he or a member of his
immediate family is associated.
In this case, it is clear that as a School Board Member who is
an individual defendant in the lawsuit, you would have a conflict
of interest in any matter before the Board involving the lawsuit,
including but not limited to executive session discussions or
debates on the lawsuit and discussion and votes regarding the
defense, compromise or settlement of the lawsuit. Likewise, you
could not discuss with or attempt to influence the other Board
Members regarding the defense, compromise or settlement of the
lawsuit. Any participation by you could have an impact on the
litigation, including settlement, which derivatively could impact
upon whether you pay damages or attorneys' fees. See Borland,
Order 786 and Sanders, Order 785 wherein the Commission found
violations of the Ethics Law by township supervisors who used the
township solicitor, paid for by township funds, to bring action
against the township auditors. The use of office resulted in a
financial gain. Since they did not have to pay personally, they
were enhanced by the out -of- pocket expenses they would otherwise
have had to pay.
Pursuant to Section 3(a), you would also be prohibited from
accessing confidential information regarding the lawsuit, for
example by being present during executive session discussions
regarding the lawsuit or by accessing confidential documents of the
School District.
In each instance of a conflict of interest, you are required
to abstain from any participation of any nature whatsoever,
including but not limited to taking part in discussions, voting,
lobbying for a particular result, or any other use of the authority
of office. In each instance of a conflict of interest, you are
further required to comply with the disclosure requirements of
Section 3(j) of the Ethics Law set forth above.
The propriety of the proposed conduct has only been addressed
under the Ethics Law; the applicability of any other statute, code,
o *dinance, regulation or other code of conduct other than the
Ethics Law has not been considered in that they do not involve an
interpretation of the Ethics Law. Specifically not addressed
herein is the applicability of the Pennsylvania Public School Code.
Conclusion: As a School Board Member for the Ringgold School
District, you are a public official subject to the provisions of
the Ethics Law. You would have a "conflict of interest" as to any
matter where the use of authority of office or confidential
information received by being a public official would result in the
Coulter, Jimmy B., 94 -593
August 22, 1994
Page 6
such.
receipt of a private pecuniary benefit. Specifically, a conflict
of interest would exist in any matter brought before the School
Board involving the lawsuit in which you are named as a defendant.
You would be prohibited from lobbying the other School Directors
regarding the lawsuit. Additionally, you would be prohibited from
accessing confidential information regarding the lawsuit as set
forth above. In each instance of conflict, you would be required
to abstain from any participation of any nature whatsoever, and the
disclosure requirements of Section 3(j) would have to be observed.
Lastly, the propriety of_ the proposed conduct has only been
addressed under the Ethics Law.
Pursuant to Section 7(11), this Advice is a complete defense
in any enforcement proceeding initiated by the Commission, and
evidence of good faith conduct in any other civil or criminal
proceeding, providing the requestor has disclosed truthfully all
the material facts and committed the acts complained of in reliance
on the Advice given.
This letter is a public record and will be made available as
Finally, if you disagree with this Advice or if you have
any reason to challenge same, you may appeal the Advice to the
full Commission. A personal appearance before the Commission
will be scheduled and a formal Opinion will be issued by the
Commission.
Any such appeal must be in writing and must be actually
received at the Commission within fifteen (15) days of the date
of this Advice pursuant to 51 Pa. Code 513.2(h) . The appeal may
be received at the Commission by hand delivery, United States
mail, delivery service, or by FAX transmission (717 -787 - 0806).
Failure to file such an appeal at the Commission within fifteen
(15) days may result in the dismissal of the appeal.
cerely,
VI cent Dopk
Chief Counsel
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