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HomeMy WebLinkAbout94-605 StavovyDear Mr. Stavovy: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 22, 1994 John B. Stavovy, Jr President Mesa Wood Ltd. R.D. 3 Washington, PA 15301 94 -605 Re: Conflict, Public Official /Employee, Private Employment or Business, School District, School Board Member, Building Home for District Business Manager. This responds to your letter of August 17, 1994, in which you requested advice from the State Ethics Commission. Issue: Whether a school director is prohibited or restricted by the Public Official and Employee Ethics Law from working with, being employed by or associated with a school district business manager in a private capacity in addition to public service. Facts: After referencing a letter from Mr. James Shargots of the Trinity Area School (District) you note that Shargots is the Business Manager of District and you are a School Director. Shargots has approached you regarding building a home for him in a• subdivision wherein he recently purchased a lot. You are one of the three builders who are permitted to build in the plan and the only builder who lives in Washington County. As President of Masa Wood Ltd., a Pennsylvania Corporation, you make one hundred percent of your living building homes in the Washington County Area. After asserting that you have personally reviewed the Ethics Law and do not believe there is a conflict, you seek an official ruling Stavovy, John H., 94 -605 September 22, 1994 Page 2 regarding the possible arrangement between Mr. Shargots and yourself. You have informed the School Board of the possible arrangement and if permitted to work for Shargots, you would refrain from any discussion or vote pertaining to Shargots until all construction is completed and all monies are paid. Discussion: Preliminarily we note that an Advice of Counsel 94 -592 was issued to Shargots on August 22, 1994. As School Director for Trinity Area 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: 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. Stavovy, John B., 94 -605 September 22, 1994 Page 3 "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. "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 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. Section 3(j) of the Ethics Law provides as follows: 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 Stavovy, John H., 94 -605 September 22, 1994 Page 4 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 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. Thus, a public official /employee could not perform private business using governmental facilities or personnel. In particular, the governmental telephones, postage, staff, equipment, research materials, personnel or any other property could not be used as a means, in whole or part, to carry out private business activities. In addition, the public official /employee could not during government working hours, solicit or promote such business activity. Pancoe, supra. Similarly, Section 3(a) would expressly Stavovy, John H., 94 -605 September 22, 1994 Page 5 prohibit the use of confidential information received by holding public office/ employment for such a prohibited private pecuniary benefit. The Ethics Law would not prohibit you from contracting privately with Shargots to build him a home. However, in the event that Shargots or your business has a matter pending before your governmental body, the District, or if you as part of such official duties must participate, review or pass upon such matters, a conflict would exist. Miller, Opinion 89 -024. In those instances, it will be necessary that you be removed from that process and observe the disclosure requirements of Section 3(j) of the Ethics Law. Not only would you have a conflict regarding any matters pertaining to Shargots during the construction of the project, such conflict would continue after construction is completed and monies are paid. This is to prevent the potential for subsequently rewarding the individual through promotions or salary increases for obtaining the building contract. See Gulien, Opinion 90 -011, where the full Commission held that School Director, who as a private insurance agent sold insurance lines to various individuals associated with the School District, had a conflict and could not participate in matters involving District employees who were Gulien's private insurance clients. In such cases as noted above, Section 3(j) of the Ethics Law would require not only that you must abstain from participation but also file a written memorandum to that effect with the person recording the minutes. In summary, the Ethics Law would restrict the following: 1. The use of authority of office to obtain any business in a private capacity; Stavovy, John B., 94 -605 September 22, 1994 Page 6 2. utilization of confidential information gained through public position; 3. participating in discussions, reviews, or recommendations on matters which relate to the business /private employer which may come before the governmental body and in such cases publicly announcing the relationship or advising the supervisor as well as filing a written memorandum as per the requirements of Section 3(j) of the Ethics Law. Brooks, Opinion 89 -023. 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 Public School Code. Conclusion: As School Director for Trinity Area School District, 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 outside employment /business activity subject to the restrictions and qualifications as noted above. In the event that the client or your business has matters pending before your governmental body, then you could not participate in that matter and the disclosure requirements of Section 3(j) of the Ethics Law as outlined above must be satisfied. 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. Stavovy, John 3., 94 -605 September 22, 1994 Page 7 such. 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, Vincent.. Dopko Chief Counsel