Loading...
HomeMy WebLinkAbout99-512 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL February 22, 1999 99 -51-2 Re: Conflict; Public Official /Employee; Immediate Family; School Director; School District B; Son; Superintendent; Vacancy. This responds to your letter of January 28, 1999 by which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act presents any prohibition or restrictions upon a school director with regard to participating in actions of the school board to hire a superintendent where his son is an applicant for the position. Facts: You have been authorized by Mr. A to request a confidential advisory on his behalf from the State Ethics Commission. Mr. A is a School Director for School District B ( "School District "). His son has applied for the announced vacant position of School District Superintendent. You ask for an advisory as to whether Mr. A may participate in School Board discussions, interviews, and /or votes regarding the applicants, either including or excluding his son, for the position of Superintendent. You also inquire as to whether Mr. A should do anything more than announce his conflict and abstain from voting if his son is nominated for the position. You ask that the Commission provide further direction if Mr. A is found to have a conflict. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1007(11) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §§1107(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 Pa.C.S. §§1107(10), (1 1). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a School Director for School District B, Mr. A is a public official as that term is defined in the Public Official and Employee Ethics Act ( "Ethics Act "), and hence Mr. A is subject to the provisions of that Act. Section 1 103(a) of the Ethics Act provides: FAX : (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: sec @state.pa.us Confidential, 99 -512 February 22, 1999 Page 2 65 Pa.C.S. §1103(a). Section 1103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms that pertain to Section 1 103(a) are defined in the Ethics Act as follows: Section 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. "Immediate family." A parent, spouse, child, brother or sister. 65 Pa.C.S. §1102. Section 1 103(j) of the Ethics Act provides as follows: Section 1103. Restricted activities. (j) 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 Confidential, 99 -512 February 22, 1999 Page 3 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. 65 Pa.C.S. §1103(j). In each instance of a conflict, Section 1103(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 Act, 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 Act to the instant matter, Section 1 103(a) of the Ethics Act would prohibit a public official /public employee 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. Since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and since Mr. A's son is in one of the familial relationships delineated above, Section 1 103(a) of the Ethics Act would prohibit Mr. A from participating in actions of the School Board to hire a new School District Superintendent where his son is an applicant for the position. Davis, Opinion 89 -012. If Mr. A were to participate, such action would be a conflict of interest in contravention of Section 1 103(a) of the Ethics Act, because Mr. A would be using the authority of office for the private pecuniary benefit of his son. In each instance of such a conflict of interest, Mr. A would be required to abstain and to satisfy the disclosure requirements of Section 1 103(j) set forth above. As to your specific inquiry as to whether Mr. A may participate in actions of the School Board regarding applicants other than his son, Section 1 103(a) would prohibit any use of authority of office or confidential information received by being in the position of School Board Director for the private pecuniary benefit of an immediate family member or for the elimination of a competitor to the immediate family member. See, Pepper, Opinion No. 87 -008. Therefore, Mr. A could not participate in actions of the School Board not only as to his son, but as to all applicants because actions involving discussions, selection criteria, qualifications, and interviews may be used to enhance the selection of his son or to eliminate the competitors against his son as to the superintendent position. Confidential, 99 -512 February 22, 1999 Page 4 As to your specific inquiry as to what actions, in addition to announcing his conflict and abstaining from voting on his son's nomination, would be required of Mr. A, see the requirements of Section 1 103(j) outlined above. Lastly, 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. Conclusion: As a School Director of School District B ( "School District "), Mr. A is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §101 at seq. Section 1103(a) of the Ethics Act would prohibit Mr. A from participating in actions of the School Board to hire a new School District Superintendent where his, is an applicant for the position because his son is a member of his immediate fmily as that term is defined under the Ethics Act. In each instance of a conflict of interest, Mr. A would be required to abstain and to satisfy the disclosure requirements of Section 1 103(j) set forth above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(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 ). 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, ncent ' op o Chief Counsel