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HomeMy WebLinkAbout90-011 Guloien1990. I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Helena G. Robert W. Dennis C. James M. Daneen E. DATE DECIDED: Mav 18, 1990 DATE MAILED: May 29, 1990 Mr. David E. Guloien Auto - Life - Health -Home and Business 141 East Fourth Street Emporium, PA 15834 II. Factual Basis for Determination: Hughes, Chair Brown, Vice Chair Harrington Howley Reese 90 Re: Conflict, Public Official, School Director, Insurance, Business with Which He is Associated, Solicitation. Dear Mr. Guloien: This Opinion is issued in response to your request of March 23, Whether the Public Official and Employee Ethics Law imposes any prohibition or restriction upon a school director who has a private insurance business from soliciting or renewing insurance contracts from board members, administrators, teachers or other employees within the school district. As a member of the Cameron County School Board since June of 1986, you need clarification regarding some questions as to your insurance business of which you are the sole proprietor. Many of your insurance business clients are board members, administrators, teachers or other employees of the Cameron County School District, hereinafter District. You inquire as to whether you would have a conflict if you would solicit insurance business from current clients who are in / one of the above four categories. Secondly, you ask whether you may solicit business from individuals who are not current clients. Third, you ask whether a problem would arise if either the Mr. David E. Guloien Page 2 superintendent or administrators, without your solicitation, came to your insurance business for a quotation and would there be any difference in result if it were contract renewal time. Finally, after noting that you may be on the negotiating team for the District, you ask whether you may solicit business from those individuals on the union negotiation team or from anyone in the bargaining unit while negotiations are in process regardless of whether they are existing or would be new clients. You acknowledge that you are prohibited from doing business with the District under the Ethics Law but note that the Preamble provides in part as to public official /employees that they: You conclude by requesting an opinion as to whether such solicitation is permitted by the Ethics Law. III. Discussion: "...should not be discouraged from maintaining their contacts with their community through their occupations and profession." As a board member of the Cameron County School District, you are a public official as that term is defined under the Public Official and Employee Ethics Law. 65 P.S. 402; 51 Pa. Code 1.1. As such, you are subject to the provisions of that law. 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 definitions 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 Mr. David E. Guloien Page 3 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. Section 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 and 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. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. Initially, since you note that you are prohibited from doing business with the District, the scope of inquiry will then be limited to the specific questions you pose regarding solicitation of new clients or the renewal of contracts with existing clients if the clients are other school board members, administrators, teachers, other employees or members of the union negotiating team. Section 3(a) of the Ethics Law quoted above specifically provides in part that a public official may not use the authority of public office or confidential information to obtain a private pecuniary benefit for himself, a member of his immediate family or business with which he or a member of his immediate family is associated. In this case, it is clear that your insurance business is a business with which you are associated since you are the sole proprietor of that business. Accordingly, Section 3(a) of the Ethics Law would restrict your activities as a public official relative to the use of authority of office to obtain a private pecuniary benefit for you'or your insurance business. In applying the above provisions of the Ethics Law and definitions to the specific questions you pose, the Ethics Law does not prohibit your outside business activities. Smith, Opinion 89 -010. However, the Ethics Law would prohibit you from utilizing District Mr. David E. Guloien Page 4 property, personnel, supplies or equipment relative to carrying on your private business activities or advancing those interests. In your capacity as sole proprietor of your insurance business you would not be precluded from soliciting new clients or renewing contracts of existing clients who may be employees or officials of the District provided you do not, in whole or part, use your status as a board director in such solicitation. Shubeck, Order 663; Glova, Order 325. In particular, you must exercise diligence and care to insure that you do not convey or give an impression as to your status as a public official as District school director relative to the solicitation of clients for your insurance business. Subject to the above qualifications, such solicitation would not be restricted as to other board directors, administrators, teachers, other employees or members of the union negotiating team. If such solicitation does result in the renewal of an existing policy or the writing of a new policy to person(s) in the above categories, you must then publicly abstain as school director in all matters which would relate to such person(s). Goodman, Opinion 88 -001. In addition, Section 3(j) of the Ethics Law would require you to file a written memorandum to the effect with the secretary recording the minutes pursuant to Section 3(j) of the Ethics Law. 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 in this advisory is the applicability of either the Public School Code or the Insurance Code. IV. Conclusion: A school director of the Cameron County School Board is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would restrict a school director from using the authority of office to obtain a private pecuniary benefit for himself or an insurance business with which he is associated. The school director could not use school district property, personnel, equipment or supplies to solicit or advance in whole or part his private insurance business. However, the Ethics Law would not prohibit the school director from soliciting insurance lines from individuals associated with the district out of his business office as long as he did not use the status of his position of school director in his solicitation of such business. He could not participate in matters involving individuals associated with the district who are insurance clients and must observe the disclosure requirement of Section 3(j) of the Ethics Law. Mr. David E. Guloien Page 5 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 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 on the advice given. such. This letter is a public record and will be made available as Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By th Commission, lena G. Hughes, Chair