HomeMy WebLinkAbout97-595 McElwainSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
July 22, 1997
Carla M. McElwain
RR 1, Box 259
Loganton, PA 17747 97 -595
Re: Conflict, Public Official /Employee, School District, Board Member, Non - Profit
Citizens Corporation, President, Charter School, Vote.
Dear Ms. McElwain:
This responds to your letter of June 19, 1997 by 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 who is also President of a non -
profit citizens corporation which is the corporate sponsor of a Charter School as to
voting to accept the charter.
Facts: As a Member of the Board of Directors for the Keystone Central School
District, you request an advisory from the State Ethics Commission. In addition to
your position as School Board Member, you also serve as President of the Sugar Valley
Concerned Citizens which is a non - profit corporation organized to support the
education of the children and community members of the Sugar Valley area. You state
that you receive no compensation for either of these positions.
The Sugar Valley Concerned Citizens is the corporate sponsor of the Sugar
Valley Rural Charter School (SVRCS). SVRCS is one of the charter schools that could
open for the 1997 -1998 school year. You have been involved in the preparation of
the charter and have acted as the liaison between the core team whose job was to
prepare the charter application and the school board. You will not be a board member
of the charter school if the charter is accepted by the Keystone Central Board, nor will
anyone in your family be involved as an employee, student, or board member.
Your specific inquiry is whether you will be able to vote when the motion as to
granting the charter comes before the Keystone Central School Board.
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
McElwain, 97 -595
July 22, 1997
Page 2
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 Keystone Central School Board, 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
"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.
"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.
McElwain, 97 -595
July 22, 1997
Page 3
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.
In each instance of a conflict, 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
abstention(s) from conflict under the Ethics Law, then voting 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. It is noted that a non - profit corporation is within the definition of
"business" as set forth in the Ethics Law. McConahy, Opinion No. 96 -006;
Confidential Opinion, No. 89 -007. Consequently, given your status as President of the
Sugar Valley Concerned Citizens, that non - profit corporation is a business with which
you are associated.
McElwain, 97 -595
July 22, 1997
Page 4
The facts which you have submitted do not reveal whether your proposed action
as a School Board Member would result in a financial benefit to the Sugar Valley
Concerned Citizens. Therefore, this Advice is limited to stating generally that you
would have a conflict of interest under Section 3(a) as to the use of the authority of
your office as a Keystone Central School Board Member, or as to the use of
confidential information to which you have access by being a Member of the Keystone
Central School Board, for the private pecuniary benefit of the Sugar Valley Concerned
Citizens.
In each instance of a conflict of interest, you would be required to abstain from
participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth
above.
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 Keystone Central School Board, you are a
public official subject to the provisions of the Ethics Law. Pursuant to Section 3(a) of
the Ethics Law, you may not use the authority of your public office as a Keystone
Central School Board Member or confidential information to which you have access by
being in that position, for the private pecuniary benefit of the Sugar Valley Concerned
Citizens, which is a business with which you, as its President, are associated. In each
instance of a conflict of interest, you would be required to abstain and to fully satisfy
the disclosure requirements of Section 3(j) as set forth above. 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(1, I. The appeal may be received at the Commission by hand
McElwain, 97 -595
July 22, 1997
Page 5
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.
ncerely,
Vincent 'J. Dopko
Chief Counsel