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HomeMy WebLinkAbout95-570 WeldonDonna S. Weldon, Esquire Keefer, Wood, Allen & Rahal 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108 -1963 Dear Ms. Weldon: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 22, 1995 95 -570 Re: Conflict, Public Official /Employee, Member, School Board, Area Vocational Technical School, Joint Operating Committee. This responds to your letter of April 28, 1995, 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 members_ of an Area Vocational Technical School (AVTS) Joint Operating Committee when one of them is an applicant for a teaching position in the same AVTS. Facts: Ms. Sandra Hockensmith is a member of the Big Springs School District School Board and the Cumberland -Perry AVTS Joint Operating Committee. Her term as an elected school board member runs from December 1994 to December 1997, and her term as an appointed Joint Operating Committee member runs from December 1994 to December 1997. The Big Springs School District is a participating district in the Cumberland -Perry AVTS. Ms. Hockensmith applied for a position as health assistant teacher for the Perry - Cumberland AVTS, a vacant position that was posted and advertised beginning March 25, 1995, and is to be filled for the 1995 -96 school year. On behalf of Ms. Hockensmith and the AVTS Joint Operating Committee you seek advice from the Commission under the Ethics Law and ask four questions. First, you ask whether the employment of Ms. Hockensmith as a health assistant teacher in the AVTS would violate the Ethics Law. Second, you ask, if there is no absolute prohibition to her employment, whether the Ethics Law places any restrictions on the AVTS Joint Operating Committee employment process. Third, you ask whether the Ethics Law requires any public disclosures. Fourth, you ask at what point in the Weldon, Donna S., Esquire, 95 -5'70 May 22, 1995 Page 2 employment process must Ms. Hockensmith resign her a the AVTS Joint Operating Committee. With ppoo ad v to Your re vi you included a copy quest for adce, py of a letter in which you interpreted relevant provisions of the Public School Code that you wrote to the administrative director of the AVTS. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § 5407(10), are issued to the requestor based upon the facts which advisories 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. advisory only affords a defense to the extent Othe0 =e (11) . as truthfully disclosed all of the material facts. requestor has As members of the Cumberland -Perry AVTS Joint Operating Committee, Ms. Hockensmith and the other members are public officials as that term is defined under the Ethics Law, and hence they 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 Weldon, Donna S., Esquire, 95 -570 May 22, 1995 Page 3 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. "Immediate family." A parent, spouse, child, brother or sister. 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(f) of the Ethics Law provides as follows: Section 3. Restricted activities (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction Weldon, Donna S., Esquire, 95 -570 May 22, 1995 Page 4 if the suit is commenced within 90 days of the making of the contract or subcontract. Parenthetically, where contracting is otherwise allowed or where there appears to be no expressed contracting, the above particular Pr °vision of the to o u l d reqir that an open and e law would e public u where a process must be used in all public official /employee is otherwise appropriately contracting with his own governmental subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more. is en and public process would require that the following be observed as to the contract with the governmental body: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and applica or be able to prepare prudent t present toann proposal; (3) public disclosure of all applications or proposals considered and; (4) public disclosure of the contract awarded and offered and accepted. Section 3(f) of the Ethics Law also re official /employee may not have any supervisory quires that the overall responsibility as to the implementation or administrat on of the contract with the governmental body. 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 Weldon, Donna S., Esquire, 95 -570 May 22, 1995 Page 5 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. In your request for advice, you ask several questions. You ask whether the Ethics Law places any restrictions or prohibitions on the employment of Ms. Hockensmith as an AVTS teacher or on the AVTS Joint Operating Committee in filling the position when Ms. Hockensmith is an applicant. You also ask whether the Ethics Law requires any disclosures. The Ethics Law restricts Ms. Hockensmith from participation as to the hiring of a teacher in a position for which she is also an applicant. The conflict of Ms. Hockensmith extends not only to her application but all other applicants for that position. The Commission has held that a conflict exists where a public official participates so as to eliminate competitors for a position. Pepper, Opinion 87 -008. Ms. Hockensmith must satisfy the requirements of the Ethics Law as outlined above. However, the other members of the committee would not have a conflict under the Ethics Law when voting to fill a teaching position for which Ms. Hockensmith is one of the applicants provided that they nor an immediate family member would receive a private pecuniary benefit as a result of such action. Weldon, Donna S., Esquire, 95 -570 May 22, 1995 Page 6 You also ask at what point in the employment process must Ms. Hockensmith resign her appointment to the AVTS Joint Operating Committee. Under the Ethics Law, Ms. Hockensmith would have to meet the requirements as outlined above. However, the Ethics Law does not impose any requirements as to her resignation. Although the employment in question would not be prohibited provided the requirements of the Ethics Law were satisfied, a problem may exist, as you are aware, under the Public School Code. Due to the Commission's limited jurisdiction, 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 members of the Cumberland -Perry AVTS Joint Operating Committee, Ms. Hockensmith and the other members of the committee are public officials subject to the provisions of the Ethics Law. Although the Ethics Law would not prohibit Ms. Hockensmith from being employed as a AVTS teacher provided the restrictions above were followed, the Public School Code should also be considered. The Ethics Law would not prohibit the other members of the AVTS Joint Operating Committee from voting on Ms. Hockensmith's teaching appointment subject to the limitation noted 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 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 thirty (30) 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 FAS transmission (717- 787 - 0806). Weldon, Donna S., Esquire, 95 -570 May 22, 1995 Page 7 Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. I c\ ncerely, Vincent Dop Chief Counsel