HomeMy WebLinkAbout99-618 MarshSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1 -800- 932 -0936
ADVICE OF COUNSEL
October 13, 1999
James E. Marsh, Jr.
Marsh, Spaeder, Baur, Spaeder & Schaaf, LLP
Suite 300, 300 State Street
Erie, PA 16507
99 -618
Re: Conflict; Public Official /Employee; School Director; Attorney; School District;
School Code; Attendance at Workshop; Continuing Legal Education.
Dear Mr. Marsh:
This responds to your letter of September 10, 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 gi seg., presents any prohibition or restrictions upon a school director
who is an attorney with regard to accepting continuing legal education credits for a
"School Law Workshop" that he will attend at the expense of the school district.
Facts: As a School Director for the Fairview School District in Fairview,
Pennsylvania, you are considering attending the Annual School Law Workshop in
conjunction with the 1999 School Leadership Conference in Hershey, Pennsylvania.
Attorneys attending the School Law Workshop may receive several hours of
Continuing Legal Education ( "CLE ") credit. The base cost of the workshop is $145.00;
for those seeking to obtain CLE credit, the fee includes an extra $8.00, for a total of
$153.00.
You ask whether it would be appropriate for you to accept CLE credit for the
Workshop when the School District is paying for the cost of the Workshop and your
attendance at same.
Discussion: It is initially noted that pursuant to Sections 1107(10) and
1107(1 1) 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.
FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics@state.pa.us
Marsh, 99 -618
October 13, 1999
Page 2
As a School Director for Fairview 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 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).
The following terms 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.
65 Pa.C.S. §1102.
Section 1103(j) of the Ethics Act provides as follows:
Section 1103(j). 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
Marsh, 99 -618
October 13, 1999
Page 3
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.
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 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 Act to the instant matter,
pursuant to Section 1103(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.
Turning to your specific inquiry, you have asked whether you may accept CLE
credit for the School Law Workshop at a cost of $8.00 over the base fee when the
School District is paying for your attendance at the Workshop.
The Commission has generally determined that use of office by a public official
to obtain a financial gain for himself or a member of his immediate family or a business
with which he or a member of his immediate family is associated that is not provided
for in law constitutes a conflict of interest. Thus, if the acceptance of CLE credit by
a school director at school district expense is not permitted by the applicable statutory
enactment, that is, the Public School Code of 1949, 24 P.S. §1-101 et seq., ( "School
Code "), then a school director who would accept such CLE credit at the school
district's expense would be receiving a private (unauthorized) pecuniary benefit.
Section 5 -516.1 of the School Code provides, in pertinent part:
§ 5- 516.1. Expenses for attendance at meetings of
educational or financial advantage to district
When, in the opinion of the board of school directors or of
the board of public education, attendance of one or more of its
members and of its non - member secretary, if any, and of its
solicitor, if any, at any meeting held within the Commonwealth
Marsh, 99 -618
October "13, 1999
Page 4
24 P.S. §5- 516.1.
(other than annual State conventions of school directors) or the
attendance of one or more of its members and of its non - member
secretary, if any, and of its solicitor, if any, at the annual
convention of the National School Boards Association or any other
educational convention, will be of educational or financial
advantage to the district, it may authorize the attendance of any
of such persons at such meeting within the Commonwealth and
at the annual convention of the National School Boards
Association or any other educational convention, wherever held,
not exceeding two meetings in any one school year in addition to
annual or special conventions of the intermediate unit. Each
person so authorized to attend and attending shall be reimbursed
for all expenses actually and necessarily incurred in going to,
attending and returning from the place of such meeting, including
travel, travel insurance, lodging, meals, registration fees and other
incidental expenses necessarily incurred. Actual travel expenses
shall be allowed.
The above provision in law authorizes the payment of expenses for attendance
by school directors at meetings /conventions of educational advantage to the school
district. Therefore, conditioned upon the assumption that the School Law Workshop
in question meets that criterion for you in your capacity as a School Director, the
Fairview School District's payment of the $ 145.00 base cost of the School Law
Workshop would be provided for by law and would not be contrary to Section 1103(a)
of the Ethics Act.
As for the School District's payment of the additional $8.00 for you to obtain
CLE credit for the School Law Workshop, such would not appear to be authorized by
the School Code. However, the Ethics Act's definition of "conflict" or "conflict of
interest" provides an exclusion with respect to the use of authority of office when
such action has a "de minimis economic impact." The Ethics Act defines "de minimis
economic impact" as "an economic consequence which has an insignificant effect."
65 Pa.C.S. §1102. In this case, the Ethics Act would not prohibit your acceptance
of the School District's payment of the additional $8.00 for CLE credit on your behalf
even though such payment would not be authorized by the School Code, because it
would constitute a "de minimis" or insignificant economic gain within the aforesaid
exclusion at Section 1102 of 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 Rules of Professional Conduct.
Conclusion: As a School Director for Fairview 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 a seq. The School Code authorizes the payment of expenses
for attendance by a school director at meetings /conventions of educational advantage
to the school district. Conditioned upon the assumption that the School Law Workshop
in question meets that criterion for you in your capacity as a School Director, the
Fairview School District's payment of the base cost ($145) for your attendance at the
School Law Workshop would be compensation provided for by law in conformity with
Marsh, 99 -618
October 13, 1999
Page 5
Section 1103(a) of the Ethics Act. Further, you would not be prohibited by the Ethics
Act from accepting the School District's additional payment of $8.00 on your behalf
for CLE credit for this Workshop because this financial gain, though unauthorized,
would be considered "de minimis" and within the exclusion at Section 1 102 of the
Ethics Act. Lastly, the propriety of the proposed 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 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.
Sincerely,
Tko
Vincent`.. Dopko
Chief Counsel