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PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806
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613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
April 2, 2020
To the Requester:
Mr. Michael Mahon
20-521
Dear Mr. Mahon:
This responds to your letter dated March 6, 2020, by which you requested an
advisory from the Pennsylvania State Ethics Commission .
Issue:
Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon the Superintendent
of the Abington Heights School District with regard to serving as a
Member of the Board of Directors of the Northern Tier Industry and Education Consortium
, which receives compensation from the School District for providing
services including workforce development opportunities for ents.
Facts: As the Superintendent of the School District, you request an advisory from
the Commission based upon submitted facts that may be fairly summarized as follows.
Pursuant to an arrangement between the School District and the Consortium, the
School District pays compensation totaling approximately $4,500.00 per year to the
Consortium for providing services including workforce development opportunities, such
as camps, career fairs, and other related activities, for You
are considering serving as a Member of the Board of Directors of the Consortium. You
state that the aforesaid arrangement was in place prior to any discussion of your potential
service on the Consortium Board of Directors. You further state that you would accept
no salary or stipend for serving on the Consortium Board of Directors and that your service
which provides high quality workforce development opportunities for
students.
Based upon the above submitted facts, you ask whether the Ethics Act would
impose prohibitions or restrictions upon you with regard to serving as a Member of the
Consortium Board of Directors.
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 requester based
upon the facts that the requester has submitted. In issuing the advisory based upon the
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April 2, 2020
Page 2
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.
As the Superintendent of the School District, you are a public official/public
employee subject to the provisions of the Ethics Act.
Section 1103(a) of the Ethics Act provides:
§ 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 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.
"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.
S
65 Pa.C.S. § 1102, a public official/public employee is prohibited
Mahon, 20-521
April 2, 2020
Page 3
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.
In each instance of a conflict of interest, the public official/public employee would
be required to abstain from participation. The abstention requirement would extend 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.
Section 1103(f) of the Ethics Act, pertaining to contracting, provides as follows:
§ 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
commenced within 90 days of the making of the contract or
subcontract.
65 Pa.C.S. § 1103(f).
§ 1102. Definitions
"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.
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
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April 2, 2020
Page 4
body, in an
the Ethics Act also provides that the public official/public employee may not have any
supervisory or overall responsibility as to the implementation or administration of the
contract with the governmental body.
In applying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
Section 1103(a) of the Ethics Act would not prohibit you from serving as a Member
of the Consortium Board of Directors. However, if you would become a Member of the
Consortium Board of Directors, the Consortium would be considered a business with
which you are associated in your capacity as a Director, and pursuant to Section 1103(a)
of the Ethics Act, you generally would have a conflict of interest in your capacity as the
Superintendent of the School District in matter(s) that would financially impact you or the
Consortium. In each instance of a conflict of interest, you would be required to abstain
from participation.
You are advised that the restrictions and requirements of Section 1103(f) of the
Ethics Act would have to be observed whenever applicable. An arrangement between
the School District and the Consortium by which the School District would compensate
the Consortium for providing services
in the Ethics Act. Section 1103(f) would not be applicable to a contract that was not
entered into at a time when the Consortium would be considered a business with which
you are associated. Cf., Soltesz, Advice 18-504; Leone, Advice 17-581; Lind, Advice 16-
547. However, any renewal(s) of a contract or future contract(s) between the School
District and the Consortium valued at $500.00 or more would be subject to the restrictions
and requirements of Section 1103(f) of the Ethics Act to the extent that: (1) you would be
the Superintendent of the School District; and (2) the Consortium would be a business
with which you are associated.
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 Public School Code.
Conclusion: Based upon the submitted facts that: (1) you are the Superintendent
of the Abington Heights School (2) pursuant to an arrangement
between the School District and the Northern Tier Industry and Education Consortium
Consortium, the School District pays compensation totaling approximately $4,500.00
per year to the Consortium for providing services including workforce development
opportunities, such as camps, career fairs, and other related activities, for the School
tudents; (3) you are considering serving as a Member of the Board of Directors
of the Consortium; (4) the aforesaid arrangement was in place prior to any discussion of
your potential service on the Consortium Board of Directors; and (5) you would accept no
salary or stipend for serving on the Consortium Board of Directors, and your service would
provides high quality workforce development opportunities for the School
students, you are advised as follows.
As the Superintendent of the School District, you are a public official/public
employee
65 Pa.C.S. § 1101 et seq. Section 1103(a) of the Ethics Act would not prohibit you
from serving as a Member of the Consortium Board of Directors. However, if you would
become a Member of the Consortium Board of Directors, the Consortium would be
considered a business with which you are associated in your capacity as a Director, and
pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of
Mahon, 20-521
April 2, 2020
Page 5
interest in your capacity as the Superintendent of the School District in matter(s) that
would financially impact you or the Consortium. In each instance of a conflict of interest,
you would be required to abstain from participation.
The restrictions and requirements of Section 1103(f) of the Ethics Act would have
to be observed whenever applicable. An arrangement between the School District and
the Consortium by which the School District would compensate the Consortium for
providing
Section 1103(f) would not be applicable to a contract that was not entered into at a time
when the Consortium would be considered a business with which you are associated.
However, any renewal(s) of a contract or future contract(s) between the School District
and the Consortium valued at $500.00 or more would be subject to the restrictions and
requirements of Section 1103(f) of the Ethics Act to the extent that: (1) you would be the
Superintendent of the School District; and (2) the Consortium would be a business with
which you are associated.
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 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,
Robin M. Hittie
Chief Counsel