HomeMy WebLinkAbout20-508 SchmidtPHONE: 717-783-1610
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STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
February 28, 2020
To the Requester:
Mr. Michael Schmidt
Dear Mr. Schmidt:
FACSIMILE: 717-787-0806
WESS[TE: www.ethics. a. ov
20-508
This responds to your letter dated January 16, 2020, by which you requested an
advisory from the Pennsylvania State Ethics Commission ("Commission").
Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65
P—a—T-S. § 1101 et seq., would impose prohibitions or restrictions upon an individual
serving as a school director, who in a private capacity conducts risk and vulnerability
assessments of schools as part of his employment with a business that provides armed
school security officers to school districts, with regard to volunteering his services to
conduct a risk and vulnerability assessment of the school district's schools at no charge
to the school district.
Facts: You request an advisory from the Commission based upon submitted facts
that ay be fairly summarized as follows.
In 2013, you retired from your employment as a Sergeant with the Pennsylvania
State Police. Since August 2018, you have been employed with Armstrong Security and
Investigations ("ASI"), which provides armed school security officers to various school
districts. As part of your employment with ASI, you conduct risk and vulnerability
assessments of schools for school districts. The risk and vulnerability assessments
provide the school districts with guidance for making security improvement decisions and
may be used to justify applications for school safety grants from the Pennsylvania
Commission on Crime and Delinquency and the Pennsylvania Department of Education.
ASI charges at least $1,000.00 for a risk and vulnerability assessment of a school.
In November 2019, you were elected as a School Director for the Homer -Center
School District ("School District"). On December 5, 2019, you took office as a School
Director for the School District.
You would like to volunteer your services to conduct a risk and vulnerability
assessment of the School District's schools at no charge to the School District. You state
that you would donate your time and efforts to conduct the risk and vulnerability
assessment and that you would not receive any compensation for your services. The
Schmidt, 20-508
February 28, 2020
Page 2
report that you would provide to the School District School Board would be used as a
basis for applying for school safety grants from the Pennsylvania Commission on Crime
and Delinquency and the Pennsylvania Department of Education.
The narrow question that you have posed is whether the Ethics Act would impose
prohibitions or restrictions upon you with regard to volunteering your services to conduct
a risk and vulnerability assessment of the School District's schools at no charge to the
School District.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the tics ct, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester bbased
upon the facts that the requester has submitted. In issuing the advisory based upon the
facts that the requester has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that have not been
submitted. It is the burden of the requester 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 requester has truthfully disclosed all of the material facts.
It is further initially noted that this Advice is limited to addressing the narrow
question posed.
As a School Director for the School District, you are a public official subject to the
provisions of the Ethics Act.
Sections 1103(a) and 11030) of the Ethics Act provide:
§ 1103. Restricted activities
(a) Conflict of interest. --No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
0) 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(a), 0).
Schmidt, 20-508
February 28, 2020
Page 3
The following terms related to Section 1103(a) are defined in the Ethics Act as
follows:
§ 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.
Subject to the statutory exclusions to the Ethics Acts definition of the term "conflict"
or "conflict of interest," 65 Pa.C.S. § 1102, 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
officiallpublic employee himself, any member of his immediate family, or a business with
which he or a member of his immediate family is associated.
The use of authority of office is not limited merely to voting, but extends to any use
of authority of office including, but not limited to, discussing, conferring with others, and
lobbying for a particular result. Juliante, Order 809.
In each instance of a conflict of interest, a public official/public employee would be
required to abstain from participation, which would include voting unless one of the
statutory exceptions of Section 11030) of the Ethics Act would be applicable. Additionally,
the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied
in the event of a voting conflict.
In ap Iying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes
restrictions upon public officials and public employees. Section 1103(a) of the Ethics Act
would impose restrictions upon you in your capacity as a public. official School Director),
rather than upon you in your private capacity. Therefore, Section 1103(a) of the Ethics
Act would not prohibit you, in your private capacity, from volunteering your services to
conduct a risk and vulnerability assessment oftheSchool District's schools at no charge
to the School District.
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
Schmidt, 20-508
»rarry 28, 2020
Page 4
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.
Conclusion: Based upon the submitted facts that: (1) in 2013, you retired from
yyour employment as a Sergeant with the Pennsylvania State Police; (2) since August
2018, you have been employed with Armstrong Security and Investigations ("ASI"), which
provides armed school security officers to various school districts; (3) as part of your
employment with ASI, you conduct risk and vulnerability assessments of schools for
school districts; (4) the risk and vulnerability assessments provide the school districts with
guidance for making security improvement decisions and may be used to justify
applications for school safety grants from the Pennsylvania Commission on Crime and
Delinquency and the Pennsylvania Department of Education; (5) ASI charges at least
$1,000.00 for a risk and vulnerability assessment of a school (6)) in November 2019 you
were elected as a School Director for the Homer -Center School District "School Distric");
(7) on December 5, 2019, you took office as a School Director for the School District; (8)
you would like to volunteer your services to conduct a risk and vulnerability assessment
of the School District's schools at no charge to the School District; (9) you would donate
your time and efforts to conduct the risk and vulnerability assessment, and you would not
receive any compensation for your services; and (10) the report that you would provide
to the School District School Board would be used as a basis for applying for school safety
grants from the Pennsylvania Commission on Crime and Delinquency and the
Pennsylvania Department of Education, you are advised as follows.
As a School Director for the 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
et seq. Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes
restrictions upon public officials and public employees. Section 1103(a) of the Ethics Act
would impose restrictions upon you in your capacity as a public official School Director),
rather than upon you in your private capacity. Therefore, Section 110 (a) of the Ethics
Act would not prohibit you, in your private capacity, from volunteering your services to
conduct a risk and vulnerability assessment of the School District's schools at no charge
to the School District.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Pursuant to Section 1107(11) of the Ethics Act, 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 requester 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 actual/4 received
at the Commission within thirt (30 days of the date o ►s Advice
pursuant to 59 Pa. Code a3.2The appeal may be received at the
Commission by hand delivery, ;Trn-ited States mail, delivery service, or
by FAX transmission (717-787-0806). Failure to file such an appeal at
Schmidt, 20-508
February 28, 2020
Page 5
the Commission within thirty (30) days may result in the dismissal of
the appeal.
Sincerely,
V
Robin M. Hittie
Chief Counsel