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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