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HomeMy WebLinkAbout20-536 Leeper PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL October 9, 2020 To the Requester: Tamara Leeper 20-536 Dear Tamara Leeper: This responds to your letter dated July 29, 2020 (postmarked August 21, 2020, received August 24, 2020), and your email of August 24, 2020, by which you requested Issues: (1) 1101 et seq., would impose prohibitions or restrictions upon an individual serving as a School Director for the Indiana Area School District , who is employed as a Speech-Language Pathologist with Indiana University of Pennsylvania , with regard to working on a speech-language pathology research study conducted in collaboration between the School District and IUP, where: (a) such research study would examine various aspects of speech- language services/treatment within the School District; (b) the individual would not receive any pay or monetary benefit for working on such research study; and (c) the individual might be credited by name for working on/being part of such research study. (2) Whether the Ethics Act would impose prohibitions or restrictions upon an individual serving as a School Director for the School District, who in a private capacity is a doctoral student at Rocky Mountain University of Health Professions, with regard to conducting doctoral research in the School District, where the individual would not receive any financial compensation but might receive recognition if her doctoral research would be accepted for publication. Facts: As a School Director for the School District, you seek guidance from the Commission with regard to the following two scenarios. Scenario One Leeper, 20-536 October 9, 2020 Page 2 You are employed as a Speech-Language Pathologist with IUP, which is part of the Pennsylvania State System of Higher Education. The School District and IUP might collaborate on at least one speech-language pathology research study (a District/IUP Research Study that would examine various aspects of speech-language services/treatment within the School District. You state that you are interested in working on a School District/IUP Research Study and that you would not receive any pay or monetary benefit for performing such work. You might be credited by name for working on/being part of a School District/IUP Research Study. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you with regard to working on a School District/IUP Research Study. Scenario Two In a private capacity, you are a doctoral student at Rocky Mountain University of Health Professions. You are interested in conducting your doctoral research in the School District. You state that you would not receive any financial compensation, but you might receive recognition, if your doctoral research would be accepted for publication. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you with regard to conducting your doctoral research in the School District. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. As a School Director for the School District, you are a public official subject to the provisions of the Ethics Act. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest.--No public official or public employee shall engage in conduct that constitutes a conflict of interest. (j) Voting conflict.--Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body Leeper, 20-536 October 9, 2020 Page 3 required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three-member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. §§ 1103(a), (j). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. 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. The term 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 of 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. 65 Pa.C.S. § 1102. S 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public office/employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The use of authority of office is not limited merely to voting, but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. Leeper, 20-536 October 9, 2020 Page 4 Kistler v. State Ethics Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the Ethics Act, a public official/public employee: to the purpose of obtaining for himself a private pecuniary benefit. Such directed action implies awareness on the part of the \[public official/public employee\] of the potential pecuniary benefit as well as the motivation to obtain that benefit for himself. Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics Act, a public officia benefit for himself, his family, or his business, and then must take action in the form of Id., 610 Pa. at 528, 22 A.3d at 231. In applying the above provisions of the Ethics Act to the two scenarios you have presented, you are advised as follows. Based upon the submitted facts, it cannot be determined with certainty as to whether your use of the authority of your public position as a School Director would result in a private pecuniary benefit for you, such as through obtaining name recognition in your profession or an enhanced degree. Therefore, you are generally advised that the Ethics Act would not prohibit you from working on a School District/IUP Research Study or conducting your doctoral research in the School District subject to the condition that you would not use the authority of your public position as a School Director, or confidential information received as a result of being in your public position, to further your receipt of a private pecuniary benefit in contravention of Section 1103(a) of the Ethics Act. The propriety of the proposed conduct has only been addressed under the Ethics Act; 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 Act. Specifically not addressed herein is the applicability of the Public School Code. Conclusion: Based upon the submitted facts that: (1) you are a School Director ; (2) you are employed as a Speech- Pennsylvania State System of Higher Education; (3) the School District and IUP might collaborate on at least one speech- -language services/treatment within the School District; (4) you are interested in working on a School District/IUP Research Study, and you would not receive any pay or monetary benefit for performing such work; (5) you might be credited by name for working on/being part of a School District/IUP Research Study; (6) in a private capacity, you are a doctoral student at Rocky Mountain University of Health Professions; (7) you are interested in conducting your doctoral research in the School District; and (8) you would not receive any financial compensation, but you might receive recognition, if your doctoral research would be accepted for publication, you are advised as follows. As a School Director for the School District, you are a public official subject to the et seq. Based upon the submitted facts, it cannot be determined with certainty as to whether your use of the authority of your public position as a School Director would result in a private pecuniary benefit for you, such as through obtaining name recognition in your Leeper, 20-536 October 9, 2020 Page 5 profession or an enhanced degree. Therefore, you are generally advised that the Ethics Act would not prohibit you from working on a School District/IUP Research Study or conducting your doctoral research in the School District subject to the condition that you would not use the authority of your public position as a School Director, or confidential information received as a result of being in your public position, to further your receipt of a private pecuniary benefit in contravention of Section 1103(a) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, provided the requester has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717-787-0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Robin M. Hittie Chief Counsel