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HomeMy WebLinkAbout96-615 HoffmanMatthew M. Hoffman, Esquire Hoffman & McCann 422 Frick Building Pittsburgh, PA 15219 Dear Mr. Hoffman: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 13, 1996 96 -615 Re: Simultaneous Service, Conflict, Public Official /Employee, Vocational - Technical School, School Director, Member, Joint Operating Committee, Employee, Office of Auditor General, Conducting Audits of Member School Districts. This responds to your letter of November 8, 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 an auditor with the Office of the Auditor General from also serving as a school board director and representative on the Joint Operating Committee of the area vocational - technical school, where the individual will conduct audits of some of the other member school districts which comprise the vocational - technical school, but will not conduct audits of his own school district or the vocational - technical school itself. Facts: As Solicitor for an area vocational - technical school (vo -tech) organized under Article XVIII of the Public School Code, you are requesting advice from the State Ethics Commission on behalf of a School Director who serves as a member of the Joint Operating Committee of the Vo -Tech. The Vo -Tech is a joint school organized by nine participating school districts. The board of each participating school district elects one of its members to serve as that school district's representative on the Joint Operating Committee which governs the affairs of the Vo -Tech. The School Director on whose behalf you have inquired serves as his school Hoffman, 96 -615 December 13, 1996 Page 2 district's representative on the Joint Operating Committee of the Vo -Tech and additionally presently serves as President of that Committee. The School Director is employed by the Office of the Auditor General of the Commonwealth of Pennsylvania, and his duties include performing audits of the financial records of the Pennsylvania school districts. In his capacity as a state auditor, this individual does not conduct audits of either his home school district or the Vo -Tech itself. He does, however, conduct audits of some of the other member school districts which comprise the Vo -Tech. You ask whether the School Director's membership on the Joint Operating Committee violates the Ethics Law given that he is an employee of the Auditor General's Office and is required to conduct financial audits of some of the school districts which are members of the Vo -Tech and have representation on the Joint Operating Committee. 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 an Auditor employed by the Office of the Auditor General and as a School Director, the individual on whose behalf you have inquired is a public officiaVpublic employee as 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. (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. Hoffman, 96 -615 December 13, 1996 Page 3 "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. 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. In applying the above provisions of the Ethics Law to the question of simultaneous service, the Commission has determined that if a particular statutory enactment prohibits an official from receiving a particular benefit, then that official's receipt of such a prohibited benefit, through the authority of public office, would also be a use of the authority of office contrary to Section 3(a) of the Ethics Law. In this respect, this Commission has been called upon, on various occasions, to determine whether a specific pecuniary benefit or financial gain is prohibited by law. In this case, the following provision of the School Code must be reviewed: §3 -322. Eligibility; incompatible offices Any citizen of this Commonwealth, having a good moral character, being eighteen (18) years of age or upwards, and having been a resident of the district for at least one (1) year prior to the date of his election or appointment, shall be eligible to the office of school director therein: Hoffman, 96 -615 December 13, 1996 Page 4 Provided, That any person holding any office or position of profit under the government of any city of the first class, or the office of mayor, chief burgess, county commissioner, district attorney, city, borough, or township treasurer, member of council in any municipality, township commissioner, township supervisor, tax collector, assessor, assistant assessor, any comptroller, auditor, constable, executive director or assistant executive director of an intermediate unit, supervisor, principal, teacher, or employe of any school district, shall not be eligible as a school director in this Commonwealth... 24 P.S. §3 -322. The above - quoted statute does not appear to contain any exceptions to the above provision that would be applicable in the instant situation. Therefore, the proffered arrangement as to which of the schools would and would not be audited need not be addressed since the individual on whose behalf you have inquired cannot lawfully hold office as a School Director while simultaneously serving as an auditor employed by the Office of the Auditor General. Although only the Pennsylvania General Assembly has the inherent authority to declare offices incompatible, the State Ethics Commission may review the Ethics Law to determine that a conflict exists based upon the statutory incompatibility. Johnson, Opinion 86 -004. Under the Ethics Law, any salary, benefits, or financial gain which the individual on whose behalf you have inquired would receive as an employed auditor for the Office of the Auditor General while simultaneously serving as a School Director would not be authorized in law in Tight of the foregoing incompatibility provision; consequently, any compensation that he would receive would be a private pecuniary benefit. King, Opinion 85 -025. Lastly, it must be noted that the propriety of the proposed course of conduct has only been addressed under the Ethics Law. Conclusion: As an Auditor for the Office of the Auditor General and as a School Director, the individual on whose behalf you have inquired is a "public official /public employee" pursuant to Section 3(a) of the Ethics Law. That individual may not simultaneously serve as an Auditor employed by the Office of the Auditor General and as a School Director because the positions are statutorily incompatible and the compensation received as an auditor would be a prohibited private pecuniary benefit. Lastly, the propriety of the proposed course of 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 Hoffman, 96 -615 December 13, 1996 Page 5 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 the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Vincent J. Dopko Chief Counsel