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HomeMy WebLinkAbout96-602 TobinMarlene C. Tobin 127 Alexander Drive McMurray, PA 15317 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 24, 1996 96 -602 Re: Conflict, Public Official /Employee, School Board, Member, Volunteer Video Production Producer; Public Access Station, School Board Meetings. Dear Ms. Tobin: This responds to your letter of September 24, 1996 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 school board member as to her uncompensated and voluntary production of videotaped school board meetings for airing on a public access station. Facts: As a Member of the School Board in Peters Township, Washington County, Pennsylvania, you request an advisory from the State Ethics Commission. You have been a School Board Member since December, 1995. For two years before you were elected, you were the volunteer video production producer of "Gavel to Gavel School Board Meetings," a videotaped show of the School Board Meetings that was and continues to be aired on the local public access station. You state that in the more than three years that you have been producing this show, you have received no compensation for your services. You state that you have always done this as a public service to the community and not as a representative of the School Board or School District, or as an assistant — paid or otherwise — for anyone else. You state that in order to air a production on the Peters Township public access station, one must call the community TV station, ask permission to use the publicly owned equipment and then return the video to the station for airing. You state that the project and the full production of the show, including the video rights, were and still are yours alone. You set up the equipment, videotape the meeting, remove the equipment, add titles to the tape and deliver it to the station. You take full Tobin, 96 -602 October 24, 1996 Page 2 responsibility for the content of the show, the quality of the production and the editing rights. Since your election to the School Board, you have continued performing this service for the community. You set the camera, start it, and then take your place at the Board table. When the meeting is over, you shut off the camera and return the equipment and videotape to the station as you did before you were on the Board. You state that several Board Members and some community members have now implied that this constitutes a conflict of interest and that you must stop producing the School Board meetings for TV. A community group is claiming that you are editing the videotapes, and it is trying to stop you from continuing. You state that although editing is not the issue, you have never edited any meeting. It is your belief that it would not be a conflict under the Ethics Law for you to continue producing the aforesaid show while serving on the School Board, given that no compensation is involved and both jobs are performed as a volunteer community service. You state that the School Board Solicitor agrees with your view but would like a written advisory from this Commission. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(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. §§407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Member of the School Board in Peters Township, 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 Tobin, 96 -602 October 24, 1996 Page 3 "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. 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(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 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 Tobin, 96 -602 October 24, 1996 Page 4 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 applying the above provisions 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 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. A prohibited private pecuniary benefit is an essential element for finding a Section 3(a) violation. Based upon the facts which you have submitted, wherein you have specifically stated that your services as video production producer are strictly voluntary and uncompensated, there would be no private pecuniary benefit involved and consequently, Section 3(a) would not restrict your continuing to provide such services while serving as a School Board Member. 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. Conclusion: As a Member of the School Board in Peters Township, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not restrict you as to your uncompensated and voluntary production of videotaped School Board meetings for airing on a public access station because there would be no private pecuniary benefit involved. 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. This letter is a public record and will be made available as such. 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 §13.2(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 Tobin, 96 -602 October 24, 1996 Page 5 the Commission within thirty (30) days may result in the dismissal of the appeal. ' cerely, Vincent "Dopko Chief Counsel