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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