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HomeMy WebLinkAbout99-595 GreenJoseph P. Green, Jr. 707 Dean Court West Chester, PA 19382 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL August 26, 1999 FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state.pa.us 99 -595 Re: Conflict; Public Official /Employee; School Director; Attorney; Client; Vote; Past Conduct; Recall. Dear Mr. Green: This responds to your letter of July 29, 1999 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et aeg., presents any prohibition or restrictions upon a School Director with regard to recalling, and possibly voting to vacate, a prior vote in which he participated and as to which some have claimed he had a conflict of interest. Facts: As a School Director for the West Chester Area School District, you seek an advisory from the State Ethics Commission. In your private capacity, you are an attorney. Prior to becoming a Member of the School Board, you had discussions with another individual who is a Board Member and friend, relative to a criminal investigation which resulted in charges against a District employee. You state that the Board Member discussed the case with you as a friend, without payment of any legal fees and without the execution of any agreement for representation. You told him that you did not think he needed representation, but that if he did, you would represent him without charge, as a friend. You consulted with the Board Member about what was likely to happen, and you consulted with the prosecutor about whether the Board Member would be called as a witness, which he was not. You state that you never had to do anything to represent the Board Member and you never charged him. It is your view that no business relationship developed between you and the other Board Member. The Board Member retained other counsel to represent him relative to the criminal investigation. Subsequently, in late June, 1999, you were appointed to the School Board. During your service on the Board, a question arose as to whether the Board should pay Green, 99 -595 August 26, 1999 Page 2 the bill for the legal fees that had been incurred by the other Board Member during the investigation. The bill was in excess of Ten thousand dollars ($10,000.00). The Board Member submitted the bill to the Board. He abstained, leaving eight votes available. Three Members voted not to approve the payment and four voted to approve it. You state that your vote provided the necessary fifth vote for approval. You state that you knew that if you did not vote, it was likely that litigation would be required to resolve the matter. Your political opponents and a local newspaper have taken the position that you voted in a case where you had a "clear conflict of interest." You state your view that you did not have a conflict, as that term is defined in the Ethics Act, because the vote did not result in a pecuniary benefit to yourself, any member of your family, or business with which you are associated as those terms are defined by Section 1 102 of the Ethics Act. You state that this case is different from Kannebecker, Opinion No. 92 -010, because you did not have any business relationship with the other Board Member. You state your view that absent a conflict, you had a duty to vote one way or the other on the motion. Nevertheless, you request an advisory from this Commission as to whether you had a conflict of interest in voting to pay the bill, which conflict would have required you to abstain. You state that if you did have a conflict and should have abstained from the vote, you could take action on or before August 23, 1999 to recall the question and vacate the prior decision. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(10), (1 1), 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), (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 Act, 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 Act violations by a person who is subject to the Ethics Act. 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 West Chester Area School District, you are a public official as that term is defined in the Ethics Act, and hence you are subject to the provisions of that Act. Section 1 103(a) of the Ethics Act provides: Section 1103. Restricted activities. Green, 99 -595 August 26, 1999 Page 3 (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). The following terms are defined in the Ethics Act as follows: Section 1102. Definitions. 65 Pa.C.S. §1102. "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. "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. Section 1103(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 number of members of the body required to abstain from Green, 99 -595 August 26, 1999 Page 4 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 applying the above provisions of the Ethics Act to your inquiry, it is reiterated - -so that there will be no misunderstanding - -that the propriety of your past conduct in voting to approve the bill for the other Board Member's legal fees may not be addressed in this advisory. As for the only prospective conduct which has been submitted for review, that is, the possible recalling or vacating of the prior vote to pay the legal fees of the other Board Member, it is clear that such actions would not themselves present a conflict of interest for you. Pursuant to Section 1 103(a) of the Ethics Act, 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. Recalling the prior vote or vacating it would clearly not result in a prohibited private pecuniary benefit, and therefore your participation as to a recall or vacation of the prior vote would not constitute a conflict of interest under the Ethics Act. It is parenthetically noted that where a conflict exists, remedial measures to recall /vacate official action, while not to be discouraged, do not "undo" the prior conduct for purposes of review under the Ethics Act. 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. Specifically not addressed herein is the applicability of the Public School Code of 1949 or the Rules of Professional Conduct. Conclusion: As a School Director for the West Chester Area School District, you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 sea. The propriety of your past conduct in voting to approve a bill for legal fees incurred by another Board Member may not be addressed in an advisory. As for your prospective conduct submitted for review, you would not have a conflict of interest under Section 1103(a) of the Ethics Act in the particular matters of recalling or vacating a prior vote to pay the legal fees of another Board Member because factually, such actions would clearly not result in a prohibited private pecuniary benefit. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Green, 99 -595 August 26, 1999 Page 5 Pursuant to Section 1 107(1 1), 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 forma/ 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. cerely, Vincent J. "Dopko Chief Counsel