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HomeMy WebLinkAbout763 McCloyIn re: Alfred A. McCloy STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: Date Decided: : Date Mailed: Before: Robert W. Brown, Vice G. Sieber Pancoast Dennis C. Harrington James M. Howley Daneen E. Reese 86 -037 -C October 4, 1990 October 29. 1990 Chair The State Ethics Commission received a complaint regarding a possible violation of the State Ethics Act, No. 170 of 1978, 65 P.S. 401 et. seq. Written notice, of the specific allegation(s) was served at the commencement of the investigation. A Findings Report was issued and served, upon completion of the investigation, - which constituted the Complaint by the Investigation Division. An Answer was filed and a hearing was waived. The record is complete. This adjudication of the Commission is hereby issued which sets forth the individual Allegations, Findings of Fact, Discussion, Conclusions of Law and Order. This adjudication is final and will be made available as a public document fifteen days after issuance. However, reconsideration may be requested which will defer public release of this adjudication pending action on the request by the Commission. A request for reconsideration, however, does not affect the finality of this adjudication. A•reconsideration request must be received at this Commission within fifteen days of issuance and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code S2.38. The files in this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. 408(a) during the fifteen day period and no one unless the right to challenge this Order is waived, may violate confidentiality by releasing, discussing or circulating this Order. However, confidentiality does not preclude discussing this case with an attorney at law,. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year, 65 P.S. 409(e). ADJUDICATION I. Allegation: Alfred McCloy as a member of the Board of Private Correspondence Schools, violated Section 3A of the State Ethics Act; Act 170 of 1978 which prohibits a public employee or public official's use of office or confidential information gained through that office to obtain financial gain in that you have voted to approve licensing and re- licensing of various schools operated by firms with which are associated as well as the licensing and re- licensing of administtive and instructional staff of said firms. II. Find'nc`s : 1. You served as a member of the PA State Board of Private Correspondence Schools during 1981 and 1986. a. The State Board of Private Correspondence Schools merged with the State Board of Private Business Schools and State Board of Private Trades Schools effective 1987, b. Upon the merger of these three boards, the State Board of Private Trade Schools was created. c. You have served on the State Board of Private Trade Schools from 1907 through the present. 2. You were employed by Wilma Boyd Schools from 1976 through 1987. a. Yoy were employed by United Schools from 3.987 until 1990. 3. You hove your own management consulting firm : AID Apsggiatei, MO Pattie Place, Palm Harbor, Florida 34685. 4. The r- espontibilities for members of the State Board of Private Corres ce aehOQls and the State Board of Private Trade Schools ineiude but are not limited to: - a . , Voting for the licensing and re- licens =ing of trade, taohnical and oeTrespondence schools. b. Voting for the 1 and re- licensure of agents and ins staff for the sane. 5. The PA Department of EdVgation compiles lasts of agents, administrative and instructional staff which are presented to the board and,voted om in their entirety,. a. Board members have no involvement in the preparation of these tints. 6. ou participated in matters related to Wilma `Qyd Schoe/ at Mr. Alfred A. McCloy Page 3 meetings of the PA State Board of Private Correspondence Schools. a. September 28, 1984: You made a motion and voted to . approve the new agent license of Rhoda Hairston. Hairston is a representative of the Boyd Career School. b. July 19, 1985: You voted to approve the followings 1. The re- licensure of travel Lab Division of Wilma Boyd Career Schools. 2. The approval of the re- licensure of the following agents from the Travel Lab Division of the Wilma Boyd Career Schools: Pamela Bechdol - Thomas Callahan - William Davis - Diane Zollner - Jan Full Judy Gozur - Eugene Melillo Geri Talbot Louise Morgan Joyce Mowrer Dorothy Quigley Owen Slagle c. You state that the above votes were rescinded after Dr. Willard expressed his concerns and the matters were subsequently #re- address[ed]" wherein you abstained. ?. At the meeting of the State Board of Private Correspondence Schools held on September 13, 1985, you abstained from voting on the re- licensure of Wilma Boyd Schools instructional staff. 8. it was a standard board practice to vote on complete lists of Sehools and personnel. a. Lists of agents and /or schools that were presented to the Board would be voted on in the entirety. b. You did not know most of the personnel contained on the list. c. This practice by Board members continued until Board member James Willard objected to it. Since Willards objection, care has been taken to assure that voting conflicts by Board members do not arise. d. You helped write the boards policy on abstention from discussion and voting. This policy came about due to alleged State Ethics Act violations by several board members. Mr. Alfred A. McCloy Page 4 III. Discussion: As a member of the Board of Private Correspondence Schools, Alfred McCloy, hereinafter McCloy, was a public official as that term is defined under the Ethics Act, 65 P.S. 402;51 Pa. Code §1.1. As such, his conduct is subject to the provisions of that law. Initially, it is noted that Section 5 of Act 9 of June 26, 1989 provides, in part, as follows: "This amendatory act shall not apply to violations committed prior to the effective date of this act, and causes of action initiated for such violations shall be governed by the prior law, which is continued in effect for that purpose as if this act were not in force. For the purposes of this section, a violation was committed prior to the effective date of this act if any elements of the violation occurred prior thereto." Since the occurrences in this case transpired prior to the effective date of Act 9 (June 26, 1989), we must apply the provisions of Act 170 of October 4, 1978, P.L. 883 to determine whether the Ethics Act was violated. Under Section 3(a), quoted above, this 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 law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation 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 interests; Koslow v. State Ethics Commission, 116 Pa. Commw. Ct. 19, 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. The allegation before us is whether McCloy while a member of the Board of Private Correspondence Schools violated Section 3(a) Of the gthics Act as to voting to approve the licensure or re- licensure of various schools or agents thereof when he was associated with businesses which operated the schools. In the instant matter, McCloy served on the Board of Private Correspondence Schools from 1981 through 1986 when that Board merged with. the State Board of Private Business Schools and State Boards of Private Trades Schools which merger became effective in 1987. Mr. Alfred A. McCloy Page 5 Part of McCloy's duties on the. Board was to vote on the' licensure /re- licensure of schools and their agents or staff. Such action occurred when the PA Department of Education compiled and submitted lists for groups of agents and staff for Board actiona.., The Board members had no involvement in the preparation of the lists At a September 28, 1984 meeting of the Board, McCloy made a motion and voted in favor of the approval of Rhoda Hairston' as aE: representative of the Boyd Career School. In addition, McCloy voted' to approve at a July 19, 1985 meeting of the Board the re- 1iceTsure of the travel Labor Division of the Boyd. Career School as well:. as the re- licensure of six agents therein. McCloy did not-know most of the individuals named on the list. The Boyd Career School was a "business with which....(MtTliayl was.. associated" since he was employed by the School" between 7E and 1987. The term "business with which he is associated is defined under the Act as follows: Section 2. Definitions. "Business with which he business in which the person person's immediate family is owner, employee or holder of is associated." Any or a member: of the a director, officer, stock. 65 P.S. §402'. In applying Section 3(a) of the Ethics Act to the instant. matter, we find a technical violation. McCCaayfdid make a motion or which constitutes a use of office. A £inanciai gain resulted as to the business with which he was associated though the licensure/re- licensure of agents ' of that business. Obviously such action enabled the School to continue to function anditherreby received tuition or fees through its operation. The compensatiion -is other than provided by law because there is no provision in. law which allows for the voting to approve the licensing or rel'iicensing of agents of the business with which the public official: is associated. We do note that at a September 13,. 11985 meeting, McCloy abstained. In addition, he abstained on the: "re- adtress of the action taken at the September 28, 1984 and July 197, t98 meetings. Additionally, McCloy did not realize a personal financial gain as a result of his actions. Lastly, the practice of voting. on group listings of schools /agents has been discontinued so as to avoid vetting conflicts. In light of the above and the totality of the facts and circumstances in this case, we will take no further action Mr. Alfred A. McCloy Page {6 IV. Conclusions of Law: 1. Alfred A. McCloy as a member of the Bogard of Private Correspondence Schools was a public official subject to the of the Ethics act. 2. A technical violation of Section 3(a) of the Ethics Act occurred when McCloy made a motion and vdt€d•to approve'the licensure /_re- iicensure of agents of the Boyd Career School at a time when he was associated with that business. In re: Alfred. A. McCloy File Docket: 86 -037 -C : Date Decided: October 4. 1990 : Date Mailed: October 29: 1996 ORDER No. 763 1. A techn''ca1 violation of Section 3(a) of the Ethics Act occurred when Alfred A. McCloy as a member of the Board of Private Correspondence Schools, made a motion and voted to approve the licensure/re-licensure of agents of the Boyd Career. School at a time when he was associated with that business. 2. In light of the fact that there was no financial gain realized and the totality of the facts and circumstances, this Comtissi" "oh.will take no further action in this case. BY THE COMMISSION, ROBERT W. BROWN, VICE CHAIR