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HomeMy WebLinkAbout89-018 FletcherMs. Rosemary Fletcher R.D. #1, Box 201 Graysville, PA 15537 Dear Ms. Fletcher: 1989. I. Issue: , STATE ETHICS COMMISSION 308 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF TICE COMMISSION Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair W. Thomas Andrews G. Sieber Pancoast James M. Howley Michael J. Washo DATE DECIDED: September 27, 1989 DATE MAILED: October 10, 1989 Re: Conflict, Public Official, School Director, Transportation Committee, Vote, Bus Driver, Contractor, Transportation Contract, School District. This Opinion is issued in response to your request of June 7, Whether the Public Official and Employee Ethics Law imposes any restrictions upon a school director being appointed to a transportation committee and voting on transportation contracts when the school director is employed as a bus driver by a contractor who transports students for the school district. II. Factual Basis for Determination: 89 - 018 You have recently been appointed to fill a vacancy on the West Greene School Board. You are also employed as a school bus driver by a contractor who transports students for the West Greene but you are not employed by the school district. You then pose three questions under the Ethics Law: whether you may be appointed to the transportation committee to a position other than chair; whether you may vote on transportation matters or transportation contracts other than the contract with your employer and whether it would be in the best interest to serve on the transportation committee. Ms. Rosemary Fletcher Page 2 III. Discussion: As a School Board member, you are a public official as that term is defined under the Public Official and Employee Ethics Law of June 26, 1989, Act 9 of 1989. Accordingly, you are subject to the provisions of the Ethics Law and restrictions therein are applicable to you. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined under the Ethics Law: Section 2. 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. "Conflict" or "conflict of interest" 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 or 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 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. Ms. Rosemary Fletcher Page 3 In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value or no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Generally, the Ethics Law would not restrict a school director from also serving on a select committee of the school board. The general rule under the Ethics Law is that there is no per se prohibition to serving in two positions provided the positions are not adverse to each other or provided there is no statutory or inherent incompatibility. Smith, Opinion 89 -010. Positions would be adverse where a conflict would exist as to one position relative to the other, as for example, where the public official /employee would be associated with both parties to a given contract. In the instant matter, since you are employed by the contractor who transports the school district students, that is a business with which you are associated. If you were to serve on the transportation committee, you as a member of the transportation committee would consider contracts of the business with which you are associated as well as other transportation contractors. You acknowledge that you may not vote on the transportation contract of your employer. However, the restriction under the Ethics Law would require your abstention on other transportation contracts because they could be competitors of the business with which you are associated. If you were to vote on other transportation contracts, you could cast negative votes so as to limit or eliminate the competition. See Pepper, Opinion 87 -008. Therefore, your employment with the contractor who transports students is adverse to your position on the transportation committee and the Ethics Law would prohibit your service on that committee. In addition, in the event that any matter concerning the business with which you are associated or any matter involving transportation of school students would come before the school board, you must under Section 3(j) of the Ethics Law abstain and publicly annouce and disclose the nature of your interest in a memorandum filed with the person responsible for recording the minutes. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; 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 Law. Specifically not addressed is the applicability of the Public School Code. IV. Conclusion: Ms. Rosemary Fletcher Page 4 As a school director for West Greene School District, you are a public official subject to the provisions of the Ethics Law. Since you are employed by a contractor who transports school students in the district, that is a business with which you are associated. The Ethics Law would prohibit your service on a transportation committee given your employment with the transportation contractor. In addition, you must as a school director abstain on matters involving the business with which you are associated and matters involving the transportation of school directors. In such cases, you must also publicly.annouce and disclose the nature of your interest in a memorandum filed with the person responsible for recording the - inj.nutes. Lastly, the - propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(9)(i), this Opinion is a complete defense in any enforcement proceeding , initiated by _the Commission, and evidence of good 4. th conduct ,.. ,n , any civi or criminal proceeding, providing the reguestor has disclgsed_ all the material facts and committed the acts complained of in reliance on the advice given. This letter is public record and will be made available as such. so: r Finally, pens- may request rthe Commission to reconsider its Opinion. The reconsideration request must be received at this Cqmmission w }thin, fi. teen -days of the mailing date of this - Opinion. Thg person recpuestingreconsideration should present a detailed ex041anation setting forth the reasons why the Opinion requires reconsideration. By the , Commission, eXena G. Hughes, Chair