HomeMy WebLinkAbout86-012 Daghirneorge L. flaghi r, Esquire
F R H Ruilding
20 N. Michael Street
St. Marys, PA 15857
near Mr. flaghir:
I. Issue:
II. Factual Basis for Determination:
T11. Discussion:
7 1
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
OPINION OF THE COMMISSION
DECIDED NOV 19 1986
MAILED NOV 5 1986
86 -012
Re: Scho31 Roard Memhers, Inspection Trips, Reimhursement of Expenses by
Potential Contractor
This responds to your request of October 17, 1986, wherein you sought the
opinion of the State Ethics Commission.
Whether the State Ethics Act presents any prohibitions upon the members
of a school hoard accepting an all expense -paid trip to the location of a
potential contractor in order to review that contractor's facilities.
As Solicitor for the St. Marys Area School Roard, you have requested the
opinion of the State Ethics Commission in relation to the ahnve issue. The
St, Marys Area School Roard has in the past engaged the services of the
Service Master Company. Service Master has corporate headquarters in Chicago,
Illinois. The general husiness of this company involves maintenance and
custodial services and supplies. Officials of Service Master have suggested
that they would he happy to furnish an all expense -paid trip for two days and
one night to Chicago, Illinois for interested memhers of the St. Marys Area
School Rnard to personally observe the corporate facilities, and to discuss
the potential of expanding the nature and extent of the services heinq
provided to the school district. you have requested the advice of the State
Ethics Commission in relation to the ahnve situation.
As members of a local school board, the individuals involved herein are
clearly puhlic officials as that term is defined in the State Ethics Act. 65
P.S. F402. As such, their conduct must conform to the requirements of the
George L. Daghir, Esquire
Page 2
State Ethics Act. Blaney, 84 -003; Jersey Shore Area School District v. •
Bitner, 81 Pa. Commw. Ct. 30, 472 A,2d 1183, (1984), This Commission has in
the pane reviewed several situations of a similar nature and has set forth
some general guidelines in relation thereto. The Commission, however, has not
addressed a ,r umber of additional concerns wHch often arise in relation to
s9,ch situations. Initially in relation to the applicable law, we h.ave
reviewed this matter previously under the followi ;. p;•ovisions of the State
J.thics Act:
Section 1. Purpose.
The Legislature hereby declares that public of.;_ is a
public trust and that any effort to realize p so Ali
financial gain through public office other than
compensation provided by law is a violation of tha'.; fc rat.
In order to strengthen_the faith and confidence of the
people of the State in their government, the Legi s',atrre
further declares that the people have a right to be
assured that the financial interests of holders o` oe
candidates for public office present neither a conf1 i c•`
nor the appearance of a conflict with the public trust -,.
Bec::use public confidence in government can best be
sustained by assuring the people of the impartiality and
honesty of public officials, this act shall be liberally
construed to promote complete disclosure. 66 P.S. 401,
Section 3. Restricted activities.
(a) No public official or public employee shall use his
public office or any confidential informatics received
through his holding public office to obtain financ•.ial gai
other than compensation provided by law for himself,
member of his immediate family, or a business with wh•!ch
he is associated. 65 P.S. 403(a).
(b) No person shall offer or give to a public official or
public employee or candidate for public office or a member
of his immediate family or a business with which he is
associated, and no public official or public employee or
candidate for public office shall solicit or accept,
anything of value, including a gift, loan, political
contribution, reward, or promise of future emp!oymuit
based on any understanding that the vote, o:fici it action,
or judgment of the public official or ;!ubl . em»oyee or
candidate for public office would be inrlu2nced thereby.
6:") P.S, 403(b).
George L. Daghir, Esquire
Page 3
In Miller, 83 -006, we were requested to issue an opinion in relation to
the question of whether the members of the Pennsylvania Real Estate Commission
could accept reimbursement from a developer for expenses related to the public
responsibilities of the members of that Commission. Typically, developers who
were proposing to build projects in the Commonwealth of Pennsylvania often
maintained similar types of projects in other locations. As part of that
Commission's responsibilities, the members thereof would travel to the place
where the real estate project was located to make an on -site inspection of the
quality and other elements of the applicant's project. When the inspection
was complete, the inspecting commissioner would file a report with the Real
Estate Commissioner. The developer was billed directly by the Commonwealth
for the per diem fee of the commissioner but the inspecting commissioner
himself would bill the developer for his out -of- pocket expenses for the
transportation associated with the trip.
In reviewing that situation, we determined that under the above cited
provisions of the State Ethics Act no real estate commissioner could accept
reimbursement for expenses or any other thing of value with the understanding
that his official conduct would be influenced thereby. We also determined
that in a situation whereby the commissioner billed a developer directly for
expenses related to an on -site inspection process, it was inevitable that the
appearance of a conflict of interest would arise. Accordingly, the Commission
suggested that the official's governmental body take direct steps to remove
the public official who was traveling from the responsibility of the billing
process. As a result, the governmental body would be directly reimbursed for
the travel expenses of the individual and, as such, the conflict of interest
would not arise. Additionally, the Commission suggested that the expenses be
standardized and conform, if possible, to an objective standard of
comparability of each traveling commissioner's expenses. Such a system would
preclude the possibility that one developer could provide a traveling
commissioner with expenses that would far exceed the expenses paid to another
traveling commissioner and eliminate the possibility that one developer could
provide inappropriate or inordinate accommodations or reimbursement.
In addition thereto, this Commission has also determined in the Miller
Opinion that while the commissioner could not remove himself from reporting,
discussing or generally advising the other members of the Commission as to the
on -site inspection, the commissioner who has directly dealt with the developer
to secure reimbursement should refrain from finally voting to approve or
disapprove the project of said developer. In addition, if the individual
commissioner involved does not believe that his decision would be objective,
then he must remove himself from the governmental body's consideration of the
application.
In a similar situation, we have also issued an advice indicating that
there would be no Ethics Act prohibition on a public employee traveling at a
vendor's expense to review equipment that the governmental body is considering
George L. Daghir, Esquire
Page 4
purchasing. See, Grant, 82 -579. In that particular situation, it was not
possible for the vendor to transport the equipment for review to the
employee's location and, therefore, the employee was required to travel in
order to review that equipment.
In the instant situation a number of questions arise under the
Commission's previous opinions. Clearly the Miller Opinion is specifically on
point with the current situation and while the Ethics Act presents no per se
prohibition on the type of official travel that is indicated in your letter,
it is believed that certain reasonable standards must be implemented in
relation to such travel. In determining if such travel is proper, we believe
that a number of factors must first be reviewed. In this respect, i is clear
that not all members of the school board need travel to review the fbcili ies
of the vendor. This is particularly so where it appears from your letter of
request that the school board members would not be traveling to renew any
particular equipment or facility that would at a future time he transported to
the St. Marys Area. Specifically, it is assumed that the travel would ,nerely
be to the corporate headquarters of the vendor in order to conduct
ciiscussions. In this respect, it is curious as to why any of the members of
the school board need travel. This is so, in that the district is already
contracting with Service Master and is generally aware of the company's
performance. But even if such travel was proper, it is suggested that the
school board elect one or two members to travel in relation to this matter.
Those individuals could file a report with the remaining members of the board
recording their inspection and discussions.
In addition to the foregoing, and in light of the Miller Opinion, it is
,pecif1cally required that the school board members, if travel is permitted,
not directly receive reimbursement for their expenses. Reimbursement should
he conducted through the school district. In this respect, the school board
members would not be directly receiving reimbursement but would rather be
receiving it through the school district. Additionally, it is advised that
the expenses should be detailed both as to the item and amount for which
r eimbursement is being made.
It is clear from our prior opinions that this Commission is of the
opinion that the expenses incurred during such a trip must be reasonable in
nature. In this respect, we do not believe, for example, that the " "endor
should provide accommodations and travel expenses for the spouse of a public
a`ricial. In addition, the travel must be in relation to the official
respon„bilities of the individuals involved. If the travel is in relation to
something that is not of an official nature then such would be questionable.
In addition, thereto, the location for which the travel is arranged and the
period of time duri ng which the official travels also must be reasonable. For
example, if ar official travels to conduct a two -hour inspection trip but is
reimbursed for all expenses for an entire week, then such would seem to be
unreazonable in nature.
George L. Daghir, Esquire
Page 5
Finally, the governmental body should consider the actual need for the
travel. In the event that travel is necessary in order to review specific
facilities, equipment or other materials that cannot be transported to the
officials, then such would seem to be reasonable. However, if the travel is
merely to discuss on -going contractual relationships, then it is curious as to
why one official from the representative vendor may not travel to the school
board rather than have the entire school board travel to the vendor.
Additionally, strong consideration should be given to the possibility of
sending an "employee" of the body who is most familiar with the technical
aspects of what is being purchased. In this way, the person most
knowledgeable of the items being purchased will review and report to the body.
This person, however, in most cases, will not have a final vote on what is
being purchased, thus, no conflict w i l l develop. For example, in the instant
situation, the school district superintendent or the maintenance manager could
review the facilities of the vendor. That person could then prepare and issue
a full report to the school board which could then vote on the issues. In the
instant situation, the above criteria is what this Commission would consider
in determining if travel is appropriate. Based upon your letter of request
and the limited facts contained therein, we are not satisfied that the
criteria have been met, as such, we do not believe that the travel would be in
accordance with the Ethics Act.
VI. Conclusion:
The State Ethics Act presents no per se prohibition upon a public
official's travel at the expense of a vendor in order to perform the official
responsibilities of the official's governmental body. Any such travel,
however, must conform to the requirements and standards enumerated through the
Ethics Act and by prior Commission opinions. The factors considered and
criteria to be employed in reviewing such situations include:
(1 ) The traveling official may not directly bill or receive
reimbursement from the vendor or contractor.
(2) Such reimbursement should be arranged by the vendor with
the school district.
(3) The nature of the expenses incurred and the amounts paid
by the vendor should be specifically outlined and
enumerated to the school di strict. Such information
should also be available to the public.
(4) The nature and extent of the travel must be reasonable in
nature.
George L. Daghir, Esquire
Page 6
The following criteria should be considered in relation to whether the
travel is reasonable.
a. Is the trip necessary in order to review, equipment,
material, facilities which the governmental body is
considering purchasing and which cannot be transported
to the location of the governmental body?
b. Is it necessary for the entire governmental body to
travel in order to review such facilities, equipment
or materials or is it more reasonable for one or two
members of the governmental body to review such items
and report back to the governmental body?
c. Is the location and extent of the trip including the
length of time during which the individual travels
reasonable in nature to the duties that are to be
performed by the official while traveling?
d. Has the vendor supplied additional items during the
trip including gifts, entertainment, and other
ire.tui titer that are unreasonable in nature and i 41
relation to the official duties that are being
performed?
e. Would the travel, by the official, accord the vendor
any advantages over other vendors.
(5) Public officals may not accept travel expenses and
accommodations for spouses of the public official.
(6) The travel must be in accordance with the official duties
and responsibilities of the individuals involved. The
travel must not be related to any tangential items not
related to the official duties and responsibilities of
the public official.
The above criteria should be employed in deterr,ii ni ng whether the nature
and extent of the travel is in accordance with the State Ethics Act. If the
nature and extent of the travel is in accordance with the official
responsibilities of the public official and if the travel is not unreasonable
in nature and the other requirements as noted above are followed, then travel
would not be in violation of the State Ethics Act. In the instant situation
and based upon the facts presented, we are not satisfied that these criteria
have been met and, therefore, we do not believe that the travel would be in
accord with the State Ethics Act.
George L. Daghir, Esquire
Page 7
Pursuant to Section 7(9)(i), this opinion is a complete defense in any
enforcement proceeding initiated by the Commi ssi on, 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 requi res reconsideration.
By the Commission,
G. Sieber Pancoast
Chai r:nan