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HomeMy WebLinkAbout20-503 TiedePHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Ms. Susan Tiede Dear Ms. Tiede: STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL February 13, 2020 20-503 This responds to your letter dated December 20, 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 ITS. § 1101 et se , would impose prohibitions or restrictions upon an individualwho was elected as a 9c iool Director for the TredyffrinlEasttown School District ("School District") in November 2019 with regard to voting to approve the School District check register, where: 1) the individual retired from employment with the School District in or around 2014; (2) as part of her retirement benefits, the Individual receives from the School District an annual allowance in the amount of $5,200.00 to purchase School District -approved medicallhealth-related insurance coverage; and (3) the individual receives the aforesaid annual allowance from the School District in the form of monthly payments that are included in the School District check register. Facts: You request an advisory from the Commission based upon submitted a��hat may be fairly summarized as follows. From 2000 to 2007, you were employed as the Principal of an elementary school in the School District. From 2007 to 2014, you were employed as the Director of Personnel for the School District. You retired from your employment with the School District in or around 2014. At the time that you retired from your employment with the School District, the School District's agreement with its administrators (the "Agreement") provided, in pertinent part, that for ten years from an eligible administrator's date of retirement, the School District would continue to contribute an allowance of $5,200.00 annually (the "Annual Retirement Benefits Allowance") for the purpose of purchasing School District - approved medicallhealth-related insurance coverage. You have been retired from your employment with the School District for less than ten years, and you receive the Annual Retirement Benefits Allowance from the School District in the form of monthly payments. Tiede, 20-503 Fe-Fr13, 2020 Page 2 In November 2019, you were elected as a School Director for the School District. The monthly payments that you receive pursuant to the Annual Retirement Benefits Allowance are included in he School District check register, which is presented periodically to the School District School Board for approval. The School District School Board's approval of the School District check register authorizes the School District Business Office to issue payment(s) to you for the Annual Retirement Benefits Allowance. Based upon the above submitted facts, the question that is presented by your advisory request is whether the Ethics Act would impose prohibitions or restrictions upon you with regard to voting to approve the School District check register, which would include monthly payments to you for the Annual Retirement Benefits Allowance. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of e Ethics 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 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 thaf 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 permitted to vote if disclosures are made as otherwise provided herein. In the case of a three -member governing bod 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. Tiede 20-503 F-eE—ruary 13, 2020 Page 3 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 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. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term 91 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. The Commission has determined that the approval of pre -fixed, routine, uncontested bills/obligations does not in and of itself rise to the level of a violation of Section 1103(a) of the Ethics Act. Yezzi, Order 825 at 58; Krushinski, Order 168; Brooks, Opinion 89-023; Maholick, Opinion 90-010. In applying the above provisions of the Ethics Act to your advisory request, you are advised as follows. You generally would have a conflict of interest under Section 1103 a) of the Ethics Act in matters before the School District School Board that would inancially Tiede, 20-503 February 13, 2020 Page 4 impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. However, based upon the submitted facts that the Agreement was already in place when you retired from the School District and the amount of the Annual Retirement Benefits Allowance you receive is pre -fixed by the Agreement, you are advised that you would not have a conflict of interest with regard to voting to approve the School District check register, which would include monthly payments to you for the Annual Retirement Benefits Allowance. 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. Specifically not addressed herein is the applicability of the Public School Code. Conclusion: Based upon the submitted facts that: (1) from 2000 to 2007, you were employed as the Principal of an elementary school in the Tredyffrin/Easttown School District ("School District"); (2) from 2007 to 2014, you were employed as the Director of Personnel for the School District; (3) you retired from your employment with the School District in or around 2014; (4) at the time that you retired from your employment with the School District, the School District's agreement with its administrators (the "Agreement") provided, in pertinent part, that for ten years from an eligible administrator's date off retirement, the School District would continue to contribute an allowance of $5,200.00 annually (the "Annual Retirement Benefits Allowance") for the purpose of purchasing School District -approved medical/health- related insurance coverage; (5) you have been retired from your employment with the School District for less than ten years, and you receive the Annual Retirement Benefits Allowance from the School District in the form of monthly payments; (6) in November 2019, you were elected as a School Director for the School District; (7} the monthly payments that you receive pursuant to the Annual Retirement Benefits Allowance are included in the School District check register, which is presented Periodically to the School District School Board for approval; and (8) the School District School Board's approval of the School District check register authorizes the School District Business Office to issue payment(s) to you for the Annual Retirement Benefits Allowance, 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 seg. You generally would have a conflict of interest under Section 1103(a) of the EtFiics Act in matters before the School District School Board that would financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. However, based upon the submitted facts that the Agreement was already in place when you retired from the School District and the amount of the Annual etirement Benefits Allowance you receive is pre -fixed by the Agreement, you are advised that you would not have a conflict of interest with regard to voting to approve the School District check register, which would include monthly payments to you for the Annual Retirement Benefits Allowance. 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 Tiede, 20-503 Fe-Ur13, 2020 Page 5 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 Advice pursuant to 59 Pa. Code § �3.2(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, obin M. Hittie Chief Counsel