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HomeMy WebLinkAbout97-613 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 7, 1997 97 -613 Re: Conflict, Public Official /Employee, School District, School Director, Transportation Services Contract, Bus Line, Bus Driver Instructor, Allegations, Work for Bus Line. This responds to your letters of September 12, 1997 and September 23, 1997 by which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a School Director with regard to the proposed extension of a contract for transportation services where the School Director is paid by the Commonwealth of Pennsylvania for providing driver instruction services to bus drivers, assigned to him by the Intermediate Unit, which drivers may include employees of the bus line that serves the School District. Facts: You have been authorized by Mr. A to request an advisory from the State Ethics Commission on his behalf. The issue involves the proposed contract extension for transportation services between Bus Line B and School District C. Mr. A is a School Director for School District C. You have submitted the following as the material facts. Mr. A has told you that he is not employed by Bus Line B, that he does not work for Bus Line B, and that he is not paid by Bus Line B. However, Mr. A does work 20 hours per week once or twice a year instructing drivers for school bus licensing. Mr. A has been providing this service since 1982. The Intermediate Unit assigns drivers (some of whom may be employees of Bus Line B) to Mr. A's class which usually lasts one week and is conducted at different locations, such as High School D. Mr. A gives a test to the drivers who must also successfully complete the CDL test before they can operate a bus. Mr. A is paid by the Commonwealth for this service and receives no compensation from Bus Line B. You further state that at a March planning session, one of the School Directors indicated that there were witnesses who would testify that Mr. A has been working on busses at Bus Line B. There were also indirect references to Mr. A inspecting or cleaning busses for Bus Line B. You state that none of those allegations have been established. Confidential Advice of Counsel, 97 -613 October 7, 1997 Page 2 Based upon the above, you phrase the issue as whether Mr. A is employed by Bus Line B in any capacity or is "conflicted out" with regard to the proposed contract extension for transportation services between Bus Line B and School District C. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) 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. Consequently, the advisory context is not a forum for resolving factual disputes. To the contrary, factual disputes may only be resolved by this Commission in the context of the investigative process whereby this Commission reviews the conduct of public officials /public employees to determine whether the Ethics Law has been violated. In contrast, an Advice — and this Advice in particular — assumes that the material facts have been accurately submitted by you and Mr. A. In other words, this Advice assumes that Mr. A is not employed by Bus Line B, that he does not work for that bus line, and that he is not paid by that bus line. To the extent the letter of inquiry has omitted any material facts, or to the extent the facts have been misstated or misrepresented, this advisory will not afford a defense to Mr. A. As a School Director for School District C, Mr. A is a public official as that term is 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. "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 Confidential Advice of Counsel, 97 -613 October 7, 1997 Page 3 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. 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. Section 3(f) of the Ethics Law provides as follows Section 3. Restricted activities (f) 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 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. Section 3(j) of the Ethics Law provides as follows: Confidential Advice of Counsel, 97 -613 October 7, 1997 Page 4 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. In participating as to the proposed contract extension for transportation services between Bus Line B and School District C, Mr. A would clearly be acting in his capacity as a public official and he would also clearly be using the authority of his public office. However, a conflict of interest under Section 3(a) would only exist if Mr. A would use the authority of his public office 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. Based upon the facts which have been Confidential Advice of Counsel, 97 -613 October 7, 1997 Page 5 submitted, there would not be any private pecuniary benefit flowing to Mr. A himself or a member of his immediate family. Moreover, the mere fact that employees of Bus Line B may take a course taught by Mr. A — under circumstances where Mr. A is assigned such work by the Intermediate Unit and is paid for such work by the Commonwealth of Pennsylvania — is insufficient in and of itself to establish that Bus Line B is a business with which Mr. A is associated. On the other hand, business relationships between Mr. A and Bus Line B could establish a conflict of interest. That is why this Advice has emphasized the fact that advisories from this Commission are based upon the facts as submitted and do not afford a defense to the extent material facts are omitted, misstated, or misrepresented. 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 School Director for School District C, Mr. A is a public official subject to the provisions of the Ethics Law. Based upon the facts which have been submitted, Mr. A would not have a conflict of interest under Section 3(a) of the Ethics Law with regard to a proposed contract extension for transportation services between Bus Line B and School District C. A conflict of interest under Section 3(a) would exist if Mr. A would use the authority of his public office for the private pecuniary benefit of himself, a member of his immediate family, or a business with which or a member of his immediate family is associated. Where the facts as submitted are that Mr. A is not employed by Bus Line B, that he does not work for Bus Line B, and that he is not paid by Bus Line B, the mere fact that employees of the said bus line may be among various bus drivers who take a course taught by Mr. A under circumstances where Mr. A is assigned such work by the Intermediate Unit and is paid for such work by the Commonwealth of Pennsylvania — is insufficient in and of itself to establish that Bus Line B is a business with which Mr. A is associated. This Advice is based upon the facts as submitted and is conditioned upon the assumption that all of the material facts have been truthfully and accurately submitted. 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(h 1. The appeal may be received at the Commission by hand Confidential Advice of Counsel, 97 -613 October 7, 1997 Page 6 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. opko Chief Counsel