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HomeMy WebLinkAbout94-611 TichySTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 27, 1994 Christy Tichy 217 Kelly Blvd. Slippery Rock, PA 16057 94 -611 Re: Conflict, Public Official /Employee, School Director, Manager of Family Planning Clinic, Proposal to Prohibit Sexual Instruction in Schools by Employees of Organizations Offering Birth Control Products or Services. Dear Ms. Tichy: This responds to your letters of September 1, 1994 and September 11, 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 member and vice president of a school board who is the manager of a family planning clinic with regard to a proposal to prohibit sexual instruction in the schools by employees of organizations offering birth control products or services. Facts: For more than twelve years, you have served as a Member of the Slippery Rock Area School Board and you are presently its Vice President. An issue has been introduced to the Board and your Solicitor has suggested that you seek a ruling from this Commission. The issue before the Board involves proposed policy changes, a copy of which has been submitted and is incorporated herein by reference. The portion which is pertinent to your request (hereinafter the "proposal") provides as follows: No one employed by an organization that sells or provides birth control pills and /or devices, abortions, or abortion referrals may teach or address children in our schools about sexual practices or techniques. You are a salaried employee of Family Planning Services of Tichy, Christy, 94 -611 September 27, 1994 Page 2 Mercer County, which operates four non- profit family planning clinics. Specifically, you are the Manager (formerly termed Supervisor) of the Slippery Rock Clinic. You have no financial interest in the clinic, other than your salary, and you are not on the Board of Directors. You state that the clinic is a health clinic, and is certainly not out to make money from teenagers, but rather is there to help them. Members of your staff have been invited to speak in the schools on previous occasions. The key question, you feel, is whether you may vote if this proposal is brought to a vote. You state that it is interesting to note that the Slippery Rock Area Schools have one of the best curricula on sexuality /self esteem in the state. You are the one Board Member who worked with teachers and staff to write this curriculum. Your job was never questioned, and your experience in the field was valued. You feel that the proposal in question is "blatant censorship backed by incorrect, one -sided information." You further state that you feel you owe the students, and the entire community, your full support in protecting the curriculum and insuring that the students are provided with factual and complete information without bias. You feel that you must be allowed to vote in this matter. Based upon all of the above, you seek an advisory from the State Ethics Commission. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. §S407(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. §S407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a School Director and Vice President of the Slippery Rock Area 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 Tichy, Christy, 94 -611 September 27, 1994 Page 3 employee shall engage constitutes a conflict of The following terms are defined Section 2. Definitions. in conduct that interest. in the Ethics Law as follows: "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. "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. 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 Tichy, Christy, 94 -611 September 27, 1994 Page 4 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. Having set forth the above provisions of the Ethics Law and various general principles which pertain to them, your specific inquiry will now be addressed. It is noted that this advisory does not express any opinion as to the proposal itself, and further does not address any constitutional or other legal implications which could be involved but which are outside the scope of the Ethics Law. In applying Section 3(a) of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3 (a) of the Ethics Law, a public official /public employee is prohibited Tichy, Christy, 94 -611 September 27, 1994 Page 5 from using the authority of public office /employment or confidential information received by 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. Family Planning Services of Mercer County, as your employer, is by definition a business with which you are associated. It is reasonable to conclude from the facts which you have submitted that speaking engagements in the Slippery Rock Area Schools by employees of Family Planning Services of Mercer County might result in your employer's services being sought by school students. However, the facts which have been submitted do not enable a conclusive determination as to whether your participation as a Board Member with regard to the proposal would result in a private pecuniary benefit to your employer. For example, it is not known whether your employer's products or services are provided to Slippery Rock Area School students free of charge, at cost, above cost, or below cost. In this regard, it is noted that the mere fact that an entity is a "non- profit" organization does not necessarily mean that no pecuniary benefit is derived from a given transaction or transactions. Therefore, this Advice will pose both factual alternatives, so that you may be guided accordingly. If your employer's products and services are sold to Slippery Rock Area School students at a price above actual cost, you would have a conflict of interest in your capacity as a School Director which would preclude your participation as to the proposal. In each instance of a conflict of interest, a public official is required to abstain fully and to announce the abstention and the reasons for same, both orally at the public meeting and in a written memorandum to be filed with the secretary recording the minutes. On the other hand, if your employer's products and services are provided to Slippery Rock Area School students free of charge or at cost or below coat, there would be no resulting private pecuniary benefit from your proposed participation as a Board Member on this proposal. Under this scenario, you would not have a conflict of interest under the Ethics Law and could participate fully. 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 School Code or the Abortion Tichy, Christy, 94 -611 September 27, 1994 Page 6 Control Act, 18 Pa. C.S. §3201 et sag. Conclusion: As a School Director and Vice President of the Slippery Rock Area School Board, you are a public official subject to the provisions of the Ethics Law. Family Planning Services of Mercer County is a business with which you are associated through your employment by that entity. If your employer's products and services are sold to Slippery Rock Area School students at a price which exceeds actual cost, you would have a conflict of interest with regard to a proposal before the School Board which would prohibit employees of an organization that sells or provides birth control pills and /or devices, abortions, or abortion referrals from teaching or addressing children in the Slippery Rock Area Schools about sexual practices or techniques. In each instance of a conflict of interest you would be required to abstain from any participation 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. If your employer's products and services are provided to Slippery Rock Area School students free of charge, at cost, or below cost, you would not have a conflict of interest as to the aforesaid proposal. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. This Advice specifically does not express any opinion as to the proposal itself, and further does not address constitutional or legal implications which may be involved but which are outside the scope of 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 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 Tichy, Christy, 94 -611 September 27, 1994 Page 7 (25) days may result in the dismissal of the appeal. cerely, Vincent 7 Dop o Chief Counsel