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HomeMy WebLinkAbout98-600 HeasleyLynn R. Heasley 760 Lindsay Rd. Scott Twp., PA 15106 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL October 1, 1998 FAX : (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: sec @state.pa.us 98 -600 Re: Conflict; Public Official /Employee; School Director; Simultaneous Service; District Community Service Coordinator. Dear Ms. Heasley: This responds to your letter of September 1, 1998 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 director with regard to applying for or accepting an employment position with the school district. • Facts: You are currently serving as a School Director with the Chartiers Valley School District. The District has an opening for a Community Service Coordinator. You request an advisory from the State Ethics Commission as to whether and under what conditions you may apply for the position. 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Law, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Law violations by a person who is subject to the Ethics Law. To the extent you have inquired as to conduct which has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall be addressed. As a School Director for the Chartiers Valley School District, you are a public official as that term is defined in the Public Official and Employee Ethics Law ( "Ethics Law "), and hence you are subject to the provisions of that law. Heasley, 98 -600 October 1, 1998 Page 2 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. "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. "Contract" 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. 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 Heasley, 98 -600 October 1, 1998 Page 3 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(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 3(f) requires that an "open and public process" be observed as to the contract with the governmental body. Pursuant to Section 3(f), an "open and public process" includes: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered; and (4) public disclosure of the contract awarded and offered and accepted. Section 3(f) of the Ethics Law also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. Section 3(g) of the Ethics Law provides as follows: Section 3. Restricted activities (g) No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. §403(g). 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 Heasley, 98 -600 October 1, 1998 Page 4 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 instant matter, it is first noted that your letter of inquiry does not indicate whether you intend to simultaneously serve as a Chartiers Valley School Director and as the District's Community Service Coordinator, or to resign as School Director if you are chosen for the position of Community Service Coordinator. In order to provide a complete response to your inquiry, this Advice shall consider both possible scenarios. With regard to simultaneous service, the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa. Const. Art. 6, §2. Although the State Ethics Commission does not have the express statutory jurisdiction to interpret such other laws, it may review the Ethics Law to determine that a conflict exists based upon the statutory incompatibility. Kind, Opinion No. 85 -025. A conflict of interest exists where a pecuniary benefit or financial gain (such as salary, benefits, and the like) is derived as a result of holding incompatible positions simultaneously. The Commission has determined that if a particular statutory enactment prohibits an official from receiving a particular pecuniary benefit or financial gain, .then that official's receipt of same, through the authority of public office, is unauthorized in law and hence, contrary to Section 3(a) of the Ethics Law. In this case, in order to determine whether a particular pecuniary benefit or financial gain is prohibited by law, the following provision of the Public School Code of 1949 must be reviewed: §3 -324. Not to be employed by or do business with district; exceptions. No school director shall, during the term for which he was elected or appointed, as a private person engage in any business transaction with the school district in which he is Heasley, 98 -600 October 1, 1998 Page 5 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... . 24 P.S. §3 -324 (Emphasis added). The above appears to forbid simultaneous service in the positions in question. Any financial gain or pecuniary benefit that you would receive while simultaneously holding these positions would be a gain other than compensation provided for by law. King, Opinion 85 -025. Therefore, simultaneous service in the positions of School Director and Community Service Coordinator for the Chartiers Valley School District would be contrary to Section 3(a) of the Ethics Law to the extent a pecuniary benefit or financial gain would be received that would be unauthorized based upon the foregoing incompatibility provision. Turning to the second possible scenario, where you would resign from your office as a Chartiers Valley School Director if chosen to be the District's Community Service Coordinator, you are advised that, although Section 3(a) would not preclude you from applying for and /or holding such a position, you could not use the authority of your office or confidential information obtained by being a School Director to advance or effectuate your employment by the School District. In Spataro, Opinion No. 89 -009, the State Ethics Commission held that Section 3(a) of the Ethics Law would not preclude a School Director from being considered for or appointed to the position of School District Solicitor where he would resign as School Director if selected. However, Sections 3(a) and 3(j) would impose restrictions upon him in the matter: In applying the above provisions of the Ethics Law to the instant matter, Section 3(a) of the Ethics Law would restrict you from using the authority of office or confidential information to advance your candidacy for the position of solicitor. Thus, although Section 3(a) of the Ethics Law would not preclude you from being considered or even being appointed to the position of solicitor, you could not use the authority of your office as school director to advance your own candidacy or conversely attempt to influence other school district directors to vote against any competing candidates for the position. Thus, you must remove yourself from the review and consideration process and must not attempt to influence the other school board members in considering your candidacy or rejecting the candidacy of other competing applicants. The foregoing is not to suggest that you may not in an interview for this position present your credentials; however, as school director you must remove yourself from the review process as to the selection of the solicitor. Pursuant to the requirements of Section 3(j) of the Ethics Law, you must abstain from voting and publicly announce and disclose the nature of your conflict as a public record in a written memorandum filed with the person responsible for recording the minutes. Spataro, Opinion No. 89 -009 at 3. Likewise, in Boonin, Opinion No. 90 -003, wherein the Commission ruled upon the propriety of the appointment of a member of the Philadelphia Gas Commission, who was also the Assistant Finance Director for Utility and Regulatory Affairs of the City of Philadelphia, to the position of Chief Executive Officer of the Philadelphia Gas Works (PGW), the Commission stated: Heasley, 98 -600 October 1, 1998 Page 6 ... although [Section 3(a) of the Ethics Law) would not preclude you from being considered or appointed to the position of CEO of PGW, that provision of law would prohibit you from using confidential information or the authority of office to advance your own appointment or to eliminate any competition for that position. Thus, although you may apply for that position and submit your resume and present qualifications in an interview pursuant thereto, you could not use the authority of your public office or employment as a means in whole or part to promote your appointment or conversely eliminate any competitors for the position. Pepper, Opinion 87- 008. Subject to the qualification as noted above, Section 3(a) of the Ethics Law would not prohibit your appointment to the position of CEO of PGW. Boonin, Opinion No. 90 -003 at 6 -7. See, also, Lewis, Orders No. 876, 876 -R, affirmed, Lewis v. SEC, Memorandum Opinion filed by Pennsylvania Commonwealth Court at 1282 C.D. 1993 on June 22, 1994. In this case, if you would apply for the Community Service Coordinator position, in your capacity as School Director, you would have a conflict as to that matter. You could not be involved, for example, in matters such as setting the job qualifications for the position, reviewing /screening applications for the position, interviewing applicants, and the like. You could not advocate for or against any candidate. You could not use confidential information relating to the position or the applicants. You would be required to abstain from participating and /or voting as to the process. Additionally, in each instance of a conflict, you would be required to satisfy the disclosure requirements of Section 3(j) of the Ethics Law. In considering Section 3(g) of the Ethics Law under the facts which you have submitted, if you would resign from your current position as a Chartiers Valley School Director to accept an employment position with that same School District, such would constitute a transfer from one position of public service to a new position of public service within the same governmental body. Therefore, you would not be subject to the restrictions of Section 3(g). Boonin, supra. As for Section 3(f), that Section would apply since you would be accepting an employment position with your governmental body which would presumably be valued at $500 or more. Thus, the restrictions of Section 3(f) would have to be observed as to your employment with the Chartiers Valley School District. 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. Conclusion: As a School Director for the Chartiers Valley School District, you are a public official subject to the provisions of the Ethics Law. You may not, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of School Director and Community Service Coordinator for the Chartiers Valley School District. Section 3(a) would not preclude your applying for or accepting the position of Community Service Coordinator for the Chartiers Valley School District where, if chosen for the position, you would resign as School Director. However, as a Chartiers Valley School Director, you would have a conflict of interest as to that matter. You could not . be involved, for example, in setting the job qualifications for the position, reviewing /screening applications for the position, interviewing applicants, and the like. You could not advocate for or against any candidate. You not use confidential information relating to the position or the applicants. You would be required to abstain from participating and /or voting as to the process. In each instance of a conflict, you Heasley, 98 -600 October 1, 1998 Page 7 would be required to satisfy the disclosure requirements of Section 3(j) of the Ethics Law. If you would resign from the Chartiers Valley School District to accept an employment position with that same School District, you would not be subject to the restrictions of Section 3(g). The restrictions of Section 3(f) would apply and would have to be observed as to your employment with the Chartiers Valley School District. 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 hill 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 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. rely, AI) Vincent J11' op I. Chief Cou sel