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HomeMy WebLinkAbout99-572 HamptonJan Hampton R.D. #1, Box 411A Emporium, PA 15834 STATE 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 July 7, 1999 99 -572 Re: Simultaneous Service, School Board Director, Drama Coach, Timer for Girls Volleyball, Announcer for Track Team, Ticket Seller and Taker. Dear Ms. Hampton: This responds to your letter of June 3, 1999, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act ") imposes any prohibition or restrictions upon a school board director from simultaneously serving or being employed as a drama coach, timer for girls volleyball, announcer for the track team and ticket seller and taker. Facts: You have been elected as a Director of the Cameron County School Board (Board) to take office in January of 2000. You have served as Drama Coach, Timer for Girls Volleyball, Announcer for the track team and Ticket Seller and Taker at various high . school events. You are not a teacher. The jobs you performed were on an as needed or seasonal basis for which you were compensated by the school district. You state that employment by a school district may not be a direct result of being a Board Member, but such is not the case. You performed such services for many years prior to your election to the Board and you would abstain from voting on anything pertaining to the areas of employment in which you are involved. You ask whether there would be any prohibition on your being a Board Member and continuing in the capacities of Drama Coach, Timer for girls volleyball, Announcer for the track team and Ticket Seller and Taker. Discussion: As Director for the Cameron County School Board, you will be a "public official" as that term is defined in the Ethics Act and hence you will be subject to the provisions of the Ethics Act. 65 Pa.C.S. §1102; 51 Pa. Code §11.1. Section 1103(a) of the Ethics Act provides: Section 1103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Hampton, 99 -572 July 7, 1999 Page 2 65 Pa.C.S. §1102. 24 P.S. §3 -322 The following terms that pertain to conflicts of interest under the Ethics Act are defined 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. In applying the above provisions of the Ethics Act to the question of simultaneous service, it is initially noted that 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 Act to determine that a conflict exists based upon the statutory incompatibility. King, Opinion No. 85 -025. A conflict of interest exists under the Ethics Act 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 1103(a) of the Ethics Act. In this case, in order to determine whether a particular pecuniary benefit or financial gain is prohibited by law, the provisions of the Public School Code must be reviewed: Any citizen of this Commonwealth, having a good moral character, being eighteen (18) years of age or upwards, and having been a resident of the district for at least one (1) year prior to the date of his election or appointment, shall be eligible to the office of school director therein: Provided, That any person holding any office or position of profit under the government of any city of the first class, or the office of mayor, chief burgess, county commissioner, district attorney, city, borough, or township treasurer, member of the council in any municipality, township commissioner, township supervisor, tax collector, assessor, assistant assessor, any comptroller, auditor, constable, executive, director or assistant executive director of an intermediate unit, supervisor, principal, teacher, or employe of any school district. shall not be eligible as a school director in this Commonwealth. - -- (Emphasis added) Hampton, 99 -572 July 7, 1999 Page 3 Vincent JV 441) pko Chief Counsel The above appears to forbid simultaneous service in the positions in question, even if the employment is on a seasonal or "as needed" basis. Any financial gain or pecuniary benefit that the public official /public employee 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 Cameron County School Board Director and Drama Coach, Timer for girls volleyball, Announcer for the track team and Ticket Seller and Taker would be contrary to Section 1103(a) of the Ethics Act to the extent a pecuniary benefit or financial gain would be received that would be unauthorized based upon the foregoing incompatibility provision. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Conclusion: As Director for Cameron County School Board, you will be a "public official" subject to the provisions of the Ethics Act. You may not, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of Cameron County School Board Director and Drama Coach, Timer for girls volleyball, Announcer for the track team and Ticket Seller and Taker in that School District. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), 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 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 mad, 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. S" cerely,