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HomeMy WebLinkAbout00-598 WeigleJerry A. Weigle, Esquire Weigle, Perkins & Associates 126 East King Street Shippensburg, PA 17257 -1397 Dear Mr. Weigle: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL August 2, 2000 FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state_pa.us 00 -598 Re: Conflict; Public Official /Employee; School Board; Director; Shippensburg Area School District; Bus Contract; Transportation Committee; Bid; Business With Which Associated; Vote. This responds to your letter of June 29, 2000 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 PAS. §1101 et seq., presents any prohibition or restrictions upon a school director as to serving on a transportation committee and participating in school board actions regarding transportation contract issues when the school director is employed by a transportation contractor that provides services to the school district. Facts: As Solicitor for the Shippensburg Area School District ( "School District "), you seek an advisory based on the following facts. Since the last bus transportation contract was awarded approximately 3 '/z years ago, L.S., an employee of the current transportation provider, was elected to the Board of School Directors ( "Board "). L.S. also sits on the Board's Transportation Committee. You state that although the Pennsylvania School Code does not require that school transportation contracts be open to public bid, the Board has concluded that the School District may advertise for bids if it so chooses. In fact, the current transportation contract was awarded through public bidding. The current transportation provider has requested an opportunity to enter into negotiations to extend its current contract beyond the 2000 -2001 school year. Based upon the foregoing facts, you ask the following questions. 1. Whether L.S. may remain a member of the Transportation Committee and participate as a Committee member while the Committee prepares specifications, gives advice and makes recommendations to the Board; Weigle, 00-598 August 2, 2000 Page 2 2. Whether L.S. may participate in full Board decisions on transportation contract issues as long as L.S. does not cast a vote when the Board takes action; 3. Whether L.S. may cast a vote on transportation contract issues under any circumstances given the above facts; and 4. Whether the language of 65 Pa. C.S.A §1103(f) requires bidding of the School District bus transportation contract as long as L.S. is employed by a transportation provider who is doing business with or seeks to do business with the School District. You have advised the Board that the answers to the first and third issues are clearly "no." With respect to the second issue, you have advised L.S. that he /she may be able to participate in discussions prior to a vote being taken, but that it would be better to avoid even the slightest impression of a conflict of interest by not participating in any discussions or deliberations. With respect to the fourth issue, you are uncertain as to whether Section 1103(f) requires bidding under the submitted facts. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. § §1107(10), (11), advisories are issued to the requestor based upon the facts which the request 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. As a Member of the Board of School Directors of Shippensburg Area School District, L.S. is a public official as that term is defined in the Ethics Act, and hence L.S. is 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 i ublic 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. Weigle, 00 -598 August 2, 2000 Page 3 "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. "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. The term shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 65 Pa.C.S. §1102. 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 1103(0 of the Ethics Act provides as follows: Section 1103. Restricted activities. (f) Contract. - -No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is Weigle, 00 -598 August 2, 2000 Page 4 65 Pa.C.S. §1103(j). commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. §1103(f). Section 1103(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official /public employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section 1103(0 requires that an "open and public process" be observed as to the contract with the governmental body. Pursuant to Section 1103(0, an "open and public process" includes: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered; and (4) public disclosure of the contract awarded and offered and accepted. Section 1103(0 of the Ethics Act also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. Section 1103(j) of the Ethics Act provides as follows: Section 1103. Restricted activities. (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. Weigle, 00 -598 August 2, 2000 Page 5 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 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 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. Since L.S. is employed by the current transportation provider, that is a business with which L.S. is associated. In L.S.'s capacity as a School Director, L.S. would have a conflict as to matters before the School Board that would financially impact L.S.'s employer. In each instance of a conflict, L.S. would be required to abstain and to satisfy the disclosure requirements of Section 11030) of the Ethics Act. Your specific inquiries shall now be addressed. With regard to your first question relating to L.S.'s service on the Transportation Committee, in Fletcher, Opinion 89 -018, the Commission considered whether the Ethics Law 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 noted that if the school director were to serve on the transportation committee, she, as a member of that committee, would consider contracts of the business with which she was associated, as well as other contractors. The Commission held that not only would the school director be prohibited from voting on the transportation contract of her employer, she would be prohibited from voting on other transportation contracts as well. The school director would have a conflict as to other transportation contracts because they could be competitors of her employer and she could cast negative votes so as to limit or eliminate the competition. In conclusion, the Commission stated that the school director's employment with the contractor who transported students for the school district was adverse to her position on the transportation committee and, therefore, she was prohibited by the Ethics Law from serving on that committee. Applying Fletcher, supra, to the instant case, because L.S. is employed by the School District s current transportation provider, L.S., as a member of the Transportation Committee, would have a conflict as to that provider's transportation contract as well as all other transportation contracts. L.S.'s employment with the current transportation provider is adverse to his /her membership on the Transportation Committee; therefore, he /she may not remain a member of that Committee. With regard to your second question, L.S. would have a conflict as to matters before the Board that would financially impact the business with which L.S. is associated, including whether the current transportation provider's contract should be renewed. Therefore, L.S. would be prohibited from participating in Board decisions regarding transportation contract issues. Section 1103(a) of the Ethics Act would prohibit L.S. from voting in any matter where a conflict would exist and would also preclude L.S. from participating in discussions related to such matters. This is true because the use of Weigle, 00 -598 August 2, 2000 Page 6 authority of office is more than the mere mechanics of voting. It encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order No. 809. Use of authority of office includes, for example, discussing, con erring with others, and lobbying for a particular result. Your third and fourth questions have been fully addressed above. 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 respective municipal code. Conclusion: As a Board member for Shippensburg Area School District, L.S. is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. Since L.S. is employed by a transportation contractor that provides services to the School District, that is a business with which L.S. is associated. In L.S.'s capacity as a School Director, L.S. would have a conflict as to matters before the School Board that would financially impact L.S.'s employer, including whether the current transportation provider's contract should be renewed. In each instance of a conflict, L.S. would be required to abstain and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Because L.S. is employed by the School District's current transportation provider, L.S., as a member of the Transportation Committee, would have a conflict as to the transportation contract of that provider as well as all other transportation contracts. L.S.'s employment with the current transportation provider is adverse to his /her membership on the Transportation Committee; therefore, he /she may not remain a member of that Committee. The requirements of Section 1103(f) must be observed. 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. incent J.`i7,pko Chief Counsel