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Home My WebLink About94-597 BusatoJohn Busato School Director 1003 Thompson Street Jeannette, PA 15644 Re: Dear Mr. Busato: 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 -597 Conflict, Public Official /Employee, Private Employment or Business, School Director, Part -Time Bus Driver, Bus Company which Contracts with School District. This responds to your advisory request letter received by the State Ethics Commission July 26, 1994. Issue: Whether the Public Official and Employee Ethics Law prohibits or restricts a school director from being employed as a part -time school bus driver by the bus company which contracts with the school district. Facts: As a School Director for the Jeannette School Board, you request an advisory from the State Ethics Commission. You would like to apply for a part -time job as a bus driver transporting children for Laidlaw Transit, Inc., a bus company which contracts with the School District. You ask whether this would be considered a conflict of interest if you would not participate in transportation matters and would abstain from voting on such matters. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. 96407(10), 411), 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. §5407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Buaato, John, 94 -597 August 22, 1994 Page 2 As a School Director for the Jeannette School Board, 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: 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 or position of public employment. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 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 Husato, John, 94 -597 August 22, 1994 Page 3 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 or will be any transgression thereof but merely to provide a complete response to the question presented. In applying the above provisions of the Ethics Law to the instant matter, we note that Section 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities or employment; however, the public official /employee may not use the authority of office for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. A public official /employee must exercise caution so that his private business activities do not conflict with his public duties. Crisci, Opinion 89 -013. Section 3(a) of the Ethics Law would not restrict you from working as a part -time bus driver for Laidlaw Transit, Inc. However, Laidlaw Transit, Inc., as your employer, would by definition be a business with which you would be associated. This bus company does contract with the School District which you serve, and therefore as a School Director, you would have a conflict of interest as to transportation matters generally, transportation contracts specifically, and matters relating to Laidlaw Transit, Inc. in particular. This conflict of interest would not preclude you from accepting such private employment. However, in your capacity as a public official, in each instance of a conflict of interest you would be required to abstain from any participation of any nature and to disclose your abstention and the reasons for same both orally at the public meeting and in a written memorandum filed with the Secretary recording the minutes. These conclusions are consistent with the decision of the full State Ethics Commission in Fletcher, Opinion 89 -018. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, 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 Public School Code. Conclusion: As a School Director for the Jeannette School Board, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude you from accepting outside employment as a part -time bus driver for Laidlaw Transit, Inc., a bus company which contracts with the School District, subject to the restrictions, conditions and Busato, John, 94 -597 August 22, 1994 Page 4 qualifications noted above. In your capacity as a public official, you would have a conflict of interest as to transportation. matters generally, transportation contracts specifically, and matters pertaining to Laidlaw Transit, Inc. in particular. In each instance of a conflict of interest, you would be required to abstain from any participation and to comply with the disclosure requirements of Section 3(j) of the Ethics Law as outlined above. 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. such. This letter is a public record and will be made available as Finally, if you disagree wits this Advice or if you haws 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 CoIDmi saioa. 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 113.2(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. incerely, Vincent . Dcpko Chief Counsel