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STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
January 8, 2021
To the Requester:
Douglas B. Gerwick
Dear Douglas B. Gerwick:
FACSIMILE: 717-787-0806
WEBSITE: www.ethics.pa.gov
21-500
This responds to your letter dated December 7, 2020, by which you requested an
advisory from the Pennsylvania State Ethics Commission ("Commission").
Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act") 65
75-78. § 1101 et seq., would impose prohibitions or restrictions upon a School Director
for the Grove City Area School District ("School District") with regard to participating in
discussions, votes, or other actions of the School District School Board involving George
Junior Republic in Pennsylvania and its affiliated corporations, hereinafter collectively
referred to as "George Junior Republic," where the School Director's wife is the Chief
Financial Officer of George Junior Republic.
Facts: As a School Director for the School District, you request an advisory from
Fe ommission based upon submitted facts that may be fairly summarized as follows.
You are currently President of the School District School Board. Your wife,
Michelle Gerwick, is the Chief Financial Officer of George Junior Republic. The School
District pays rent to George Junior Republic for the use of buildings on the George Junior
Republic campus in relation to the education of delinquent youth. The School District
additionally reimburses George Junior Republic for miscellaneous expenditures.
It is your understanding that matters pertaining to George Junior Republic which
come before the School District School Board do not involve final decisions made by your
wife in her role as the Chief Financial Officer but rather involve decisions made by the
Board of Directors or the Chief Executive Officer of George Junior Republic.
You state that during your first year of serving as a School Director for the School
District, you abstained from votes pertaining to payments being made to George Junior
Gerwick, 21-500
a� 8, 2021
Page 2
Republic. It has been suggested to you that you are being overly cautious when it comes
to your interpretation of the rules requiring abstentions.
The narrow question that is posed by your advisory request is whether the Ethics
Act would impose prohibitions or restrictions upon you with regard to participating in
discussions, votes, or other actions of the School District School Board on matters
involving George Junior Republic.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
e EthicsTct, 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 investmation 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 truthffully disclosed all of the material facts.
It is further initially noted that this Advice is limited to addressing the narrow
question posed.
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 11030) 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.
0) 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
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), 0).
Gerwick, 21-500
a� 8, 2021
Page 3
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.
"Immediate family." A parent, spouse, child, brother
or sister.
"Business." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self-employed individual, holding company, joint
stock company, receivership, trust or any legal entity
organized for profit.
"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.
65 Pa.C.S. § 1102.
Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict"
or "conflict of interest," 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.
In each instance of a conflict of interest the public official/public employee would
be required to abstain from participation. The abstention requirement would not be limited
merely to voting, but would extend 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. Subject to certain statutory exceptions, in each instance of a voting conflict Section
11030) of the Ethics Act would require the public official/public employee to abstain and
to publicly disclose the abstention and reasons for same, both orally and by filing a written
memorandum to that effect with the person recording the minutes.
Having established the above general principles, you are advised as follows.
Gerwick, 21-500
a� 8, 2021
Page 4
Your wife is a member of your "immediate family" as that term is defined in the
Ethics Act. George Junior Republic is a business with which your wife is associated in
her capacity as an employee. Pursuant to Section 1103(a) of the Ethics Act, you generally
would have a conflict of interest with regard to participating in discussions, votes, or other
actions of the School District School Board involving matters that would financially impact
you, your wife, or George Junior Republic.
In each instance of a conflict of interest, you would be required to abstain from
participation, which would include voting unless one of the statutory exceptions of Section
11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements
of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting
conflict.
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
or e rove City Area School District ("School District"); () you are currently President
of the School District School Board; (3) your wife, Michelle Gerwick, is the Chief Financial
Officer of George Junior Republic in Pennsylvania and its affiliated corporations,
hereinafter collectively referred to as "George Junior Republic"; (4) the School District
pays rent to George Junior Republic for the use of buildings on the George Junior
Republic campus in relation to the education of delinquent youth; (5) the School District
additionally reimburses George Junior Republic for miscellaneous expenditures; (6) it is
your understanding that matters pertaining to George Junior Republic which come before
the School District School Board do not involve final decisions made by your wife in her
role as the Chief Financial Officer but rather involve decisions made by the Board of
Directors or the Chief Executive Officer of George Junior Republic; (7) during your first
year of serving as a School Director for the School District, you abstained from votes
pertaining to payments being made to George Junior Republic; and (8) it has been
suggested to you that you are being overly cautious when it comes to your interpretation
of the rules requiring abstentions, you are advised as follows.
As a School Director for the School District, you are a public official subject to the
provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101
et seq. Your wife is a member of your "immediate family" as that term is defined in the
Ethics Act. George Junior Republic is a business with which your wife is associated in
her capacity as an employee. Pursuant to Section 1103(a) of the Ethics Act, you generally
would have a conflict of interest with regard to participating in discussions, votes, or other
actions of the School District School Board involving matters that would financially impact
you, your wife, or George Junior Republic.
In each instance of a conflict of interest, you 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 11030) of the Ethics Act would have to be satisfied in the event of a voting
conflict.
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
Gerwick, 21-500
a� 8, 2021
Page 5
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 actuaHZ received
at the Commission within thin (30) days of the date ot 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,
rian D. J cis n
Chief Coun