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HomeMy WebLinkAbout99-619 BenkoBernard Benko 715 Dundaff Street Dickson City, PA 18519 Dear Mr. Benko: STATE 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 99 -619 Re: Conflict; Public Official /Employee; School Director; School Board; Private Employment or Business; Bus Driver; Busing Contractor; Vote. This responds to your letter received September 13, 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 agg., presents any prohibition or restrictions upon a school director with regard to accepting employment with the school district's busing contractor where the school director would abstain from voting on matters pertaining to the busing contractor. Facts: As a School Director for the Mid Valley School District, you seek an advisory from the State Ethics Commission. You state that your term expires in December, 1999. You are interested in driving a school bus for the School District's busing contractor, K.C. Jones, Inc. You drove for K.C. Jones, Inc. prior to becoming a School Director; however, since becoming a School Director, you have not worked for that contractor. Moreover, the busing contract between K.C. Jones, Inc. and Mid Valley School District was passed before you were elected to the School Board. The new contract will not come before the School Board until the year 2000 when your term will have expired. Noting that you only have 3 months left on the Board, you ask whether there would be a conflict under the Ethics Act if you were to drive a bus for K.C. Jones, Inc. now, if you would abstain from voting on any matter pertaining to that company. 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), (1 1). FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics@state.pa.us Benko, 99 -619 October 13, 1999 Page 2 An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a School Director for the Mid Valley 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: 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 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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "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. 65 Pa.C.S. §1102. Benko, 99 -619 October 13, 1999 Page 3 In addition, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 1 103(j) of the Ethics Act provides: (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 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 your inquiry, you are - advised that Section 1 103(a) of the Ethics Act does not prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may not use the authority of his public position — or confidential information obtained by being in that position — for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -01 1. Examples of conduct that would be prohibited under Section Benko, 99 -619 October 13, 1999 Page 4 1103(a) would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order No. 1037; (2) the use of governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order No. 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official /public employee is associated in his private capacity, such as the review /selection of its bids or proposals, Gorman, Order No. 1041. . If the private employer or business with which the public official /public employee is associated would have a matter pending before the governmental body, the public official /public employee would have a conflict of interest as to such matter. Miller, Opinion No. 89 -024. In each instance of a conflict of interest, the public official /public employee would be required to abstain from participation and to satisfy the disclosure requirements of Section 1103(j). In Fletcher, Opinion 89 -018, the Commission considered whether the Ethics Act would impose any restrictions upon a School Director with regard to being appointed to a transportation committee and voting on transportation contracts when she was employed as a bus driver by a contractor who transported students for the School District. The Commission first determined that since the School Director was employed by the contractor who transported the School District students, that was a business with which she was associated. The Commission then concluded that the School Director could not serve on the transportation committee, and that in the event any matter concerning the business with which the School Director was associated or any matter involving transportation of school students would come before the School Board, she would be required to abstain and to satisfy the disclosure requirements of Section 3(j) of the Ethics Act. Applying Fletcher to the instant matter, upon assuming employment with K.C. Jones, Inc., it would be a business with which you would be associated. In your capacity as a School Director, you would have a conflict of interest in matters before the School Board that would financially impact your employer, K.C. Jones, Inc. In each instance of a conflict, you would be required to abstain and to satisfy the disclosure requirements of Section 1103(j) 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 School Code. Conclusion: As a School Director for the Mid Valley 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 at seq. Section 1103(a) of the Ethics Act would not preclude you from accepting employment with the School District's busing contractor, K.C. Jones, Inc., subject to the restrictions and qualifications as noted above. In the event that K.C. Jones, Inc. would have matter(s) pending before the School Board, then in your capacity as a School Director, you would be required to abstain and satisfy the disclosure requirements of Section 1103(j) of the Ethics Act set forth above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 1107(11), an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith Benko, 99 -619 October 13, 1999 Page 5 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, Vincent Dopko Chief Counsel