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HomeMy WebLinkAbout95-541 VollbrechtSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 24, 1995 Dr. Edward A. Vollbrecht, Superintendent Daniel W. Koontz, Assistant Superintendent Everett Area School District 15 South Street Extension Everett, PA 15537 -1295 95 -541 Re: Conflict, Public Official /Employee, Private Employment or Business, Assistant to Superintendent, School District, Member, Board of Directors, Rural Electric Cooperative. Dear Dr. Vollbrecht and Mr. Koontz: This responds to your letters of March 1, and March 6, 1995, in which you requested advice from the State Ethics Commission. Issue: Whether an assistant to superintendent of a school district is prohibited or restricted by the Public Official and Employee Ethics Law from working with, being employed by or associated with a business /person in a private capacity in addition to public service. Facts: Mr. Koontz, Assistant to Superintendent of the Everett Area School District, accepted a position on the Board of the Directors of the Bedford Rural Electric Cooperative with the full knowledge of Superintendent Vollbrecht. Mr. Koontz is a resident of the service area of the Bedford Rural Electric Cooperative and is compensated for performing his duties as a Member of the Board of Directors. The Cooperative services one of the five school buildings in the Everett Area School District; two School Board Members are employed by the Cooperative as General Manager and Director of Customer Service. Discussion: As an Assistant to Superintendent for the Everett Area School District, Mr. Koontz is a public employee as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. Vollbrecht, Edward A., 95 -541 March 24, 1995 Page 2 (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. "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 been or will be any transgression thereof but merely to provide a complete response to the question presented. Vollbrecht, Edward A., 95 -541 March 24, 1995 Page 3 In applying the above provisions of the Ethics Law to the instant matter, it is noted 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 prohibit the use of confidential information received by holding public office / employment for such a prohibited private pecuniary benefit. 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 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 Vollbrecht, Edward A., 95 -541 March 24, 1995 Page 4 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. In light of the above, the Ethics Law would not prohibit Mr. Koontz from outside employment or business activity. However, Mr. Koontz as Assistant Superintendent of the Everett Area School District would have a conflict as to matters involving the Bedford Rural Electric Cooperative in that such is a business with which he is associated; Mr. Koontz must abstain in such matters and observe the disclosure requirements of Section 3(j) of the Ethics law noted above. 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 an Assistant to Superintendent for the Everett Area School District, Mr. Koontz is a public employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude Mr. Koontz from outside employment /business activity subject to the restrictions and qualifications as noted above. 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. Vollbrecht, Edward A., 95 -541 March 24, 1995 Page 5 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 Coma ssion within fifteen (15) days of the date of this Advice pursuant to 51 Pa .Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAS 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 W . Do •ko Chief Counsel