HomeMy WebLinkAbout00-566 SilvaSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1 -800- 932 -0936
ADVICE OF COUNSEL
April 14, 2000
Terry Elizabeth Silva, Esquire
Silva & Associates, P.C.
1429 Walnut Street, Suite 900
Philadelphia, PA 19102 00 -566
Re: Conflict; Public Official /Employee; Secretary; President; School Board; Private
Pecuniary Benefit; College; Courses; Reimbursement.
Dear Ms. Silva:
This responds to your letter of March 13, 2000, 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 am, presents any prohibition or restrictions upon school board
members in taking college level courses in areas of responsibility as school board
members, at the expense of the school district.
Facts: As Solicitor for the Chichester School District, you seek an advisory as
to whether it would be appropriate to proceed with plans to institute a new policy
within the District. William Dunkin as President and William Rittmayer as Secretary
of the Chichester School Board have authorized you to seek advisory on their behalf
concerning this policy.
Advice is sought as to whether School Board Members are permitted, under the
School Code and the Ethics Act, to take courses for credit through a college level
program with the costs reimbursed upon success completion of the courses. You
state that the School Code and Ethics Act permit a Board Member to attend seminars,
conferences, and other informal classes.
Many of the colleges and universities offer better courses on particular topics
that relate to the areas of responsibilities of the School Board Members. The Members
of the School Board are assigned to chair particular committees to oversee the
activities, programs, and developments within the District. Examples of standing
committees are curriculum and instruction, budget and finance, technology, and
buildings and grounds. You believe it would behoove the District to have the Board
Members as the heads of these committees to seek specific education in their areas
of responsibility.
Although the Public School Code allows for seminars /conferences, it does not
specifically provide for course reimbursement. The Board Member who suggested this
actually drafted the policy to parallel the "language entitling union members to receive
FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us
Silva, 00 -566
April 14, 2000
Page 2
credit reimbursement assuming that the member takes courses pertinent to the
'educational responsibilities' within the [Diistrict ". The Board Members note that union
representatives may take courses to help them negotiate a collective bargaining
agreement while the Board Members, who would be on the other side of the
bargaining table, are unable to take the same or similar courses at the expense of the
District.
Similarly, there are administrators and union members who take courses in the
areas or curriculum or technical development which advance their performance within
the District, while the Board Members, who volunteer their time, are unable to avail
themselves of the same opportunities under the current policies.
A proffered alternative would be that the Board Members could audit courses
at District expense. Auditing courses would not give the Board Member college
credits, but there still would be an expense for their attendance.
The Board Members volunteer their time and commit major segments of time
to managing the resources of the District. It is their request that they be able to attend
courses in order to refine the skills necessary to perform their responsibilities. They
are willing to donate their time to attend such courses, but they would like to have
reimbursement from the District for the actual cost of the courses.
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.
Second, since the advisory authorization that you have provided was only given
by Dunkin and Rittmayer, this Advice is limited to addressing the conduct of only these
two Members.
Third, since the Commission only administers the Ethics Act (and Lobbying
Disclosure Act), no advice may be provided as to the Public School Code.
As Secretary and President for Chichester School Board, Dunkin and Rittmayer
are public officials as that term is defined in the Ethics Act, and hence they are subject
to the provisions of that Act.
Section 1 103(a) of the Ethics Act provides:
Section 1 103. 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:
Silva, 00 -566
April 14, 2000
Page 3
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.
65 Pa.C.S. §1102.
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.
Under Section 1103(a) of Ethics Act quoted above, the Commission has
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 is associated which
is not provided for in law transgresses the above provision of the law. Thus, use of
office by a public official to obtain a financial gain which is not authorized is prohibited
by Section 3(a): Hoak /McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct.
529, 466 A.2d 283 (1983); Yacobet v. State Ethics Commission, 109 Pa. Commw.
Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would
prohibit a public official /employee from using public office to advance his own financial
interests; Koslow v. State Ethics Commission, 116 Pa. Commw. Ct. 19, 540 A.2d
1374 (1988).
In applying the above provisions of the Ethics Act to the instant matter,
pursuant to Section 1103(a) of the Ethics Act, there does not appear to be any
authorization in law which would allow school board members to be compensated for
taking or auditing college courses, at school district expense, even if such courses
relate to the areas of responsibility of the school board members vis -a -vis the school
district. This is based upon judicial precedent that a public official may only receive
compensation or benefits that are specifically provided in law. See, R.H. v. State
Ethics Commission, (Pa. Cmwlth.), 673 A.2d 1004 (1996). Accordingly, absent
specific authorization by law, the school directors could not, under Section 1 103(a)
of the Ethics Act, audit or take college courses at school district expense when the
courses relate to their areas of responsibility with 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 conduct other than the Ethics Act has not been considered in that they do not
involve an interpretation of the Ethics Act.
Conclusion: As President and Secretary for Chichester School Board, William
Dunkin and William Rittmayer are public officials subject to the provisions of the Public
Silva, 00 -566
April 14, 2000
Page 4
Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. Absent
specific authorization by law, the school directors could not, under Section 1 103(a)
of the Ethics Act, audit or take college courses at school district expense when the
courses relate to their areas of responsibility with the school district. 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.
rely,
Vincent J. l opko
Chief Counsel