HomeMy WebLinkAbout20-502 NickelPHONE: 717-783-1610
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STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
February 11, 2020
To the Requester:
Mr. Fredrick D. Nickel
Dear Mr. Nickel. -
FACSIMILE: 717-787-0806
WEBSITE: www.ethics,pa.gov
20-502
This responds to your letter dated December 16, 2019, by which you requested
an advisory from the Pennsylvania State Ethics Commission ("Commission").
Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65
P—a-.C78. § 1101 et seq., would impose prohibitions or restrictions upon a school director
with regard to: (f) working as a substitute teacher for a corporation that has a contract
to provide substitute teaching services to the school district; or (2) voting on a school
district budget that would contain funding for substitute teaching services to be provided
by the corporation.
Facts: You request an advisory from the Commission based upon submitted
a��hat may be fairly summarized as follows.
In November 2019, you were elected as a School Director for the Mifflin County
School District ("School District") for a four-year term of office. Before you were elected
as a School Director, the School District entered into a contract (the "Contract") with a
corporation named "Substitute Teacher Service, Inc." the "Corporation") for the
trovision of substitute teaching services. You are cy employed as a substitute
urrentleacher with the Corporation.
Based upon the above submitted facts, you pose the following questions:
(1) Whether the Ethics Act would impose prohibitions or restrictions upon you
with regard to working as a substitute teacher for the Corporation; and
(2) Whether you would be required to abstain from voting on a School District
budget as a whole if the budget would contain a line item allocating funds
for services to be provided by the Corporation.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
tfieEthics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester
based upon the facts that the requester has submitted. In issuing the advisory based
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1-e rruuary 11, 2020
Page 2
upon the facts that the requester has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that have not
been submitted. It is the burden of the requester to truthfully disclose all of the material
facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a
defense to the extent the requester has truthfully disclosed all of the material facts.
As a School Director for the School District, you are a public official subject to the
provisions of the Ethics Act.
Sections 1103(a) and 11030) of the Ethics Act provide:
§ 1103. Restricted activities
(a) Conflict of interest. --No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
0) Voting conflict. --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
permuted to vote if disclosures are made as otherwise
pprovided 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.
65 Pa.C.S. §§ 1103(a), 0).
The following terms related to Section 1103(a) are defined in the Ethics Act as
follows:
§ 1102. 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. The term does not include
an action having a de minimis economic impact or which
Nickel, 20-502
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Page 3
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." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self-employed individual, holding company,
joint stock company, receivership, trust or any legal entity
organized for profit.
"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.
65 Pa.C.S. § 1102.
Subject to the statutory exclusions to the Ethics Act's definition of the term
"conflict" or "conflict of interest," 65 Pa.C.S. § 1102, 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.
The use of authority of office is not limited merely to voting, but extends to any
use of authority of office including, but not limited to, discussing, conferring with others,
and lobbying for a particular result. Juliante, Order 809.
In each instance of a conflict of interest, a public official/public employee would
be required to abstain from participation, which would include voting unless one of the
statutory exceptions of Section 11030) of the Ethics Act would be applicable.
Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have
to be satisfied in the event of a voting conflict.
Section 1103(f) of the Ethics Act, pertaining to contracting, provides as follows:
§ 1103. Restricted activities
(f) Contract. --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
Nickel, 20-502
Fe u ry 11, 2020
Page 4
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 if the suit is commenced within 90 days of the
making of the contract or subcontract.
65 Pa.C.S. § 1103(f).
The term "contract" is defined in the Ethics Act as follows:
§ 1102. Definitions
"Contract." An agreement or arrangement for the
acquisition, use or disposal by the Commonwealth or a
political subdivision of consulting or other services or of
supplies, materials, equipment, land or other personal or real
property. The term shall not mean an agreement or
arrangement between the State or political subdivision as
one party and a public official or public employee as the
other party, concerning his expense, reimbursement, salary,
wage, retirement or other benefit, tenure or other matters in
consideration of his current public employment with the
Commonwealth or a political subdivision.
65 Pa.C.S. § 1102.
Section 1103(f) does not operate to make contracting with the governmental
body permissible where it is otherwise prohibited. Rather, where a public official/public
employee, his spouse or child, or a business with which he, his spouse or child is
associated, is otherwise appropriately contracting with the governmental body, or
subcontracting with any person who has been awarded a contract with the
governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an
open and public process" be observed as to the contract with the governmental body.
Section 1103(f) of the Ethics Act also provides that the public official/public employee
may not have any supervisory or overall responsibility as to the implementation or
administration of the contract with the governmental body.
It is administratively noted that the Public School Code provides in part:
§ 3-324. Not to be employed by or do business with
district; exceptions
(a) No school director shall, during the term for which he
was elected or appointed, as a private person engaged in
any business transaction with the school district in which he
is elected or appointed, be employed in any capacity by the
school district in which he is elected or appointed, or receive
from such school district any pay for services rendered to the
district except as provided in this act...
(c) It shall not be a violation of this section for a school
district to contract for the purchase of goods or services from
a business with which a school director is associated to the
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i-e�ary 11, 2020
Page 5
extent permitted by and in compliance with 65 Pa.C.S. Ch.
11 (relating to ethics standards and financial disclosure).
24 P.S. § 3-324(a), (c). On its face, Section 3-324(c) of the Public School Code permits
contracting between school districts and businesses with which school directors are
associated as long as the requirements of the Ethics Act are observed.
In ap Iying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
The Corporation is a business with which you are associated in your capacity as
an employee. Subject to the statutory exclusions to the definition of "conflict" or "conflict
of interest" as set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, pursuant to
Section 1103(a) of the Ethics Act, you would have a conflict of interest as a School
Director in matters that would financially impact you or the Corporation.
Section 1103(a) of the Ethics Act would not prohibit you, in your private capacity,
from working as a substitute teacher for the Corporation while you are serving as a
School Director for the School District. Cf., Lind, Advice 16-547. However, in your
public capacity as a School Director, you generally would have a conflict of interest
under Section 1103(a) of the Ethics Act with regard to matter(s) pertaining to the
Corporation or the Contract, including but not limited to overseeing work performed by
the Corporation relative to the Contract or participating in matter(s) involving
extension(s)lrenewal(s) of the Contract or future contract(s) between the School District
and the Corporation. In addition, you generally would have a conflict of interest with
regard to voting to approve payment(s) to the Corporation.
To the extent the School District budget would include funding for services to be
provided by the Corporation as a separate line item, you would have a conflict of
interest under Section 1103(a) of the Ethics Act as to that particular line item. However,
if funding for services to be provided by the Corporation would not be a separate line
item on the School District budget, you would have a conflict of interest as to the School
District budget in its entirety.
In each instance of a conflict of interest, you would be required to abstain from
participation, which would include voting unless one of the statutory exceptions of
Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure
requirements of Section 11030) of the Ethics Act would have to be satisfied in the event
of a voting conflict.
The restrictions and requirements of Section 1103(f) of the Ethics Act would have
to be observed whenever applicable. Section 1103(f) would not be applicable to the
Contract given that the Contract was not entered into at a time when you were serving
as a School Director. Cf., Wiley, Advice 18-501; Lind, Advice 16-547; Shearer, Advice
15-539. However, any extension(s)Irenewal(s) oFt ie Contract or future contract(s)
between the School District and the Corporation valued at $500.00 or more would be
subject to the restrictions and requirements of Section 1103(f) of the Ethics Act to the
extent that: (1) you would be a School District School Director; and (2) the Corporation
would remain a business with which you are associated.
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability of any other statute, code, ordinance, regulation or other code of
conduct other than the Ethics Act has not been considered in that they do not involve an
interpretation of the Ethics Act.
Conclusion: Based upon the submitted facts that: (1) in November 2019, you
were elected as a School Director for the Mifflin County School District ("School
Nickel, 20-502
FeSruary 11, 2020
Page 6
District") for a four-year term of office; (2) before you were elected as a School Director,
the School District entered into a contract (the "Contract") with a corporation named
"Substitute Teacher Service, Inc." (the "Corporation' for the provision of substitute
teaching services; and (3) you are currently employe as a substitute teacher with the
Corporation, you are advised as follows.
As a School Director for the School District, you are a public official subject to the
provisions of the Public Official and Employee Ethics Act ('Ethics Act"), 65 Pa.C.S. §
1101 et seq. The Corporation is a business with which you are associated in your
capacity as an employee. Subject to the statutory exclusions to the definition of
"conflict" or "conflict of interest" as set forth in Section 1102 of the Ethics Act, 65 Pa.C.S.
§ 1102, pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of
interest as a School Director in matters that would financially impact you or the
Corporation.
Section 1103(a) of the Ethics Act would not prohibit you, in your private capacity,
from working as a substitute teacher for the Corporation while you are serving as a
School Director for the School District. However, in your public capacity as a School
Director, you generally would have a conflict of interest under Section 1103(a) of the
Ethics Act with regard to matter(s) pertaining to the Corporation or the Contract,
including but not.limited to overseeing work performed b the Corporation relative to the
Contract or participating in matter(s) involving extension (ys)/renewaI(s) of the Contract or
future contract(s) between the School District and the Corporation. In addition, you
generally would have a conflict of interest with regard to voting to approve payment(sto
the Corporation.
To the extent the School District budget would include funding for services to be
provided by the Corporation as a separate line item, you would have a conflict of
interest under Section 1103(a) of the Ethics Act as to that particular line item. However,
if funding for services to be provided by the Corporation would not be a separate line
item on the School District budget, you would have a conflict of interest as to the School
District budget in its entirety.
In each instance of a conflict of interest, you would be required to abstain from
participation, which would include voting unless one of the statutory exceptions of
Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure
requirements of Section 11030) of the Ethics Act would have to be satisfied in the event
of a voting conflict.
The restrictions and requirements of Section 1103(f) of the Ethics Act would have
to be observed whenever applicable. Section 1103(f) would not be applicable to the
Contract given that the Contract was not entered into at a time when you were serving
as a School Director. However, any extension (s)/ren ewa I (s) of the Contract or future
contract(s) between the School District and the Corporation valued at $500.00 or more
would be subject to the restrictions and requirements of Section 1103(f) of the Ethics
Act to the extent that: (1) you would be a School District School Director; and (2) the
Corporation would remain a business with which you are associated.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Pursuant to Section 1107(11) of the Ethics Act, an 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, provided the requester has disclosed
truthfully all the material facts and committed the acts complained of in reliance on the
Advice given.
Nickel, 20-502
teary 11, 2020
Page 7
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 writingg 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 marl,
delivery service, or by FAX transmission (711 787 0806). Failure to
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
Robin M. Hittie
Chief Counsel