Loading...
HomeMy WebLinkAbout85-011 YawSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 June 24, 1985 OPINION OF THE COMMISSION Mr. E. Eugene Yaw, Solicitor 85 -011 Williamsport Area Community College 433 Market Street P.O. Box 7 Williamsport, PA 17703 Re: School Director Participation in Matter Regarding Community College Where Director is Employed Dear Mr. Yaw: This responds to your letter dated March 18, 1985, wherein you requested the advice of the State Ethics Commission. 1. Issue: Whether a school director in a school district which sponsors a Community College may participate and vote on matters regarding that college, when the director is also an employee of that college. I1. Facts: You are the Solicitor for the Williamsport Area Community College. In that position, you have presented several questions for consideration and disposition by the Ethics Commission. The Williamsport Area Community College is a public college established under the Community College Act. 24 P.S. Section 5201 et seq. Pennsylvania community colleges must have a local sponsor in the form of a school district, city, borough, town, township, county or any combination thereof. Under the Community College Act, sponsors, in fact, consider and approve the annual college budget, appoint a board of trustees, and establish a financial program for the operation of the institution. Additionally, any sponsor may, with the approval of the State Board of Education, withdraw its sponsorship from a Community College. 24 P.S. §5211. The local sponsor for Williamsport Area Community College is a • combination of twenty (20) school districts located in North Central Pennsylvania. Six (6) of these districts are located in Lycoming County. Two (2) Lycoming County school districts are presently not sponsors of the college. Fourteen (14) of the twenty (20) sponsoring school districts are located in nine (9) counties contiguous to Lycoming County. t1r. E. Eugene Yaw June 24, 1985 Page 2 Recently, a proposal has been made to revise the sponsorship of the college. This revision would result in a sponsorship arrangement consisting of all eight (8) county school districts and Lycoming County government, for a total of nine (9) sponsors. The fourteen (14) school districts outside Lycoming County would no longer be sponsors. The Williamsport Area Community College employs approximately four - hundred (400) faculty and staff personnel. All are paid according to existing salary schedules or systems established by the college. Two (2) of the college employees currently serve as school directors. Both are administrative personnel. One director sits on a board of a school district outside Lycoming County which is presently a sponsor. This school district would be one which would not be a sponsor of the college if the new plan of sponsorship were to be implemented. The other employee - school director sits on a board located in Lycoming County which is not currently a sponsor, but would become a sponsor under the new sponsorship plan. Regarding their employment by the college, one individual serves as the Executive Assistant for Internal Affairs. In this respect, this individual in part, serves as the college negotiations team chairperson and as primary college representative in the negotiating process. This person also assists the college president in coordination of all legal and labor matters, serves as advisor to the president regarding internal institutional affairs, assists in policy formulation and generally represents the president's office as appropriate. The second individual is the Director of Admissions and College Activities. This person, in part, develops and recommends admission policies and also develops and monitors budgets for the admission's office and college activities. This person also coordinates, develops, and reviews the budgeting system for all college activities. In relation to this situation, you ask the following: 1. Can an elected school director of a sponsor district of the community college, who is also an administrative employee of the community college, vote on the budget of the college when presented to the sponsoring school district for consideration and approval? 2. Can an elected school director of a sponsor district of a community , college, who is also an administrative employee of the community college; vote on the withdrawal of his school district as a sponsor of the community college? 3. Can an elected school director, who is an administrative employee of a community college, vote on the issue of whether his school district will become a sponsor of the community college? Mr. E. Eugene Yaw June 24, 1985 Page 3 III. Discussion: At the outset, we note that this opinion will only address the issues presented within the purview of the State Ethics Act. As elected officials, the members of the school boards here in question are public officials as that term is defined in the State Ethics Act. 65 P.S. §401. Krier, 84 -002. As such, their conduct must conform to the requirements of the Act. Generally, the State Ethics Act provides that: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Additionally, the Ethics Commission is empowered to address other areas of possible conflict pursuant to Section 3(d). 65 P.S. §403(d). Fritzinger, 80 -008. The parameters of the type of activity encompassed by this provision may generally be reviewed in light of the preamble to the ethics act which enunciates the legislative intent of the Act. A public official or employee, pursuant to this provision, is to ensure that their personal financial interests present neither a conflict nor the appearance of a conflict with the public trust. 65 P.S. §401. Such a conflict may exist where an individual represents one or more adverse interests, Alfano, 80 -007, or where an individual serves in positions that are incompatable or conflicting. The intent of the Ethics Act in this respect is clear. Initially, we believe that the Ethics Act places no per se prohibition upon a school director of a sponsoring district from serving as an administrative employee of the community college. The Commission has previously reviewed certain situations with relation to school directors who are involved in collective bargaining decisions at the same time that a spouse is a member of the affected union. Krier, 84 -002; Blaney, 84 -003. In those matters the Commission determined that the school directors could not participate in the negotiation process, discussions or meetings regarding the proposed agreement but that such directors could vote on the final ratification of such agreement. While we believe that our approach in those matters was reasonable and a correct interpretation of the Ethics Act, we note that the instant matter must be distinguished. Mr. E. Eugene Yaw June 24, 1985 Page 4 The positions held by the two school directors here in question, as set forth in their respective job descriptions, are upper management level positions rather than staff administrative employees. The Executive Assistant for Internal Affairs clearly functions in a policy position and is responsible for, along with the college president, the overall operation of the institution. The Director of Admissions is, in part, involved in budgeting matters on behalf of the college. These individuals on one hand are high ranking college officials responsible for the overall operation of the college. They formulate policies and are involved in establishing, for the institution, a budget recommendation. As school directors, they are obliged to act on behalf of the public in deciding the college budget as well as a variety of other matters. As a result, we believe that within both Section 3(a) and 3(d) of the State Ethics Act there would be an inherent conflict if these directors were to partake in the budget matter. We believe that they must abstain as school directors from all deliberations participation in this matter. They must also have such abstention properly recorded in the appropriate minutes. We note that as representatives of the college, these directors may be called upon to provide factual information to the sponsoring school boards so that such beards may make an informed decision in this matter. This degree of participation as an emp;oyee of the institution would not be prohibited by the Act. It should also be noted that Section 3(a) of the Ethics Act, (supra), is operative on a continual basis and the school directors involved herein may not, at any time in any situation, use their position as directors (or confidential information obtained in that position) to obtain any benefit or financial gain as employees of the college. We will now turn to the question of whether these directors may participate or vote upon the question sponsorship or withdrawal thereof. While we are aware that a withdrawal of sponsorship must be approved by the State Board of Education before it can be effective, we do not believe that this provision of law is controlling here. 24 P.S. §5211. In the situation at hand, there are currently 20 sponsor districts. Under the proposed sponsorship revision plan this would be reduced to nine sponsors. The district of one director /employee would be eliminated as a sponsor and the district of the other director /employee would be accorded additional control, authority, and supervision over the college. Under these circumstances, we believe that the director /employees may not vote or participate in the deliberations sponsorship plans. Because these directors would be required to decide on a matter determining 4hether they would remain in a position of authority over the entity by which they are Mr. E. Eugene Yaw June 24, 1985 Page 5 employed, we believe that a conflict of interest would exist. Because these individuals appoint trustees and participate in other matters that may affect themselves as employees, participation in a decision of whether to remain in such a position of authority transcends the scope of activity permitted. Under the Ethics Act, we have attempted to strike a balance between the goals and purpose of the Ethics Act in insuring the impartiality of public officials and permitting those officals to perform the duties of their office. We believe that pursuant to the Ethics Act, the public official's financial interests must he sufficiently separated from the official's responsibility to the public, we do not here find that all positions of employment in the college would occasion this result. The conclusion reached here is based upon the particular nature of the positions held by these individuals. IV. Conclusion While we do not find a per se prohibition upon an elected school director being employed by a community college which is sponsored by the Director's District, we do believe that the nature of the positions held by these particular Director's creates a prohibited conflict and they must, therefore, abstain from participation in the deliberation and voting on the matters involving the college as outlined above. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the advice given. This letter is a public record and will be made available as such. Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconside- ration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. JJC /sfb By the Commission Dr. Leon L. Haley Vice- Chairman