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HomeMy WebLinkAbout483 StreightiffMs. Mamie Streightiff SRBox45E Three Springs, PA 17264 Re: 84 -171 -C Dear Ms. Streightiff: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION May 2, 1986 Order No. 483 The State Ethics Commission has received a complaint regarding you and a possible violation of Act 170 of 1978. The Commission has now completed its investigation. The individual allegations, conclusions, and findings on which those conclusions are based are as follows: I. Allegation: That you, a School Board Director in Southern Huntingdon School District, violated Section 3(c) of the Ethics Act when you were appointed without an open and puhlic process to the position of board secretary at an annual salary of $8,600. A. Findings: 1. You were appointed to the Southern Huntingdon School Board in June of 1981 to f i l l an unexpired term. You were elected to a full four year term in Novemher of 1981. 2. Minutes of the Southern Huntingdon School Board Meetings record the following information relating to your appointment: a. Minutes of Octoher 19, 1983, page 2.13: Board unanimously approves Mrs. Reck to return to position as Board Secretary effective Novemher 7, 1983 with the understanding that she could take second half of leave during the second semester of the 1983 - 84 school year or the first semester of the 1984 -85 school year. h. Minutes of May 16, 1984, page 17: Reck announces she is going to take remaining six months of sahhatical leave. Motion Yingling; second Streightiff to authorize District Superintendent Dr. Gerald Rau to appoint a suhstitute. Motion carried unanimously. The hoard to confirm the appointment at ,the meeting of June 20, 1984. Ms. Mamie Streightiff Page 2 May 2, 1986 c. Minutes of June 20, 1984, page 27: Approval of board needed to confirm your appointment as Acting Board Secretary /Superintendent's Secretary. Bau advises that the situation was checked with Attorney Schock, School District Solicitor, who had also checked the appointment with Attorney Stephen Russell of the Pennsylvania School Board Association. Both attorneys said the appointment was legal. Bau highly recommended you for the job. Your appointment and wages to be retroactive to May 2.9, 1984, your first day on the job. Motion Smith, second Allison to accept Bau's recommendation and appoint you as Acting Board Secretary /Superintendent's Secretary at an annual salary of $8,600. This to be a six month position with no fringe benefits. Roll call vote: (8) yes (1) you abstained. d. Minutes of August 15, 1984, page 47: Motion Smith, second Allison to approve amending of the June 20, 1984 minutes so that Page Seven, Section K, appointment of Acting Board Secretary /Superintendent's Secretary reads only appointment of Acting Board Secretary. Roll call vote (8) yes, (1) you abstained. 3. Superintendent Bau states that there was no public notice posted for this vacancy although it was standard practice for the district to post a notice to fill non - professional positions. 4. There were two applicants to fill the position, you and Susan Oswald. a. Both of you were interviewed by Dr. Bau and given a spelling, grammar, and typing test. b. You had the better test results. B. Discussion: As a member of the school hoard for the Southern Huntingdon County School District, you are a public official as that term is defined in the State Ethics Act. See Yaw, 85 -011; Krier, 84 -002. As such, your conduct must conform to the requirements of the State Ethics Act. 65 P.S. §401 et. seq. Generally the State Ethics Act provides as follows: Ms. Mamie Streightiff Page 3 May 2, 1986 Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Within the above provision of law, a public official may not use their public position to accept or otherwise obtain through that position any financial gain other than the compensation provided for by law. in this respect, a public official may not use their position or obtain in that position compensation to which they are not entitled. See Domalakes, 85 -010. You may not use confidential information obtained in your public position for similar purposes. Ire the instant situation, we must review the_Public School Code in order to determine if you, in fact, obtained any compensation to which you were not entitled. Generally, the School Code provides that no school director shall, during the term for which the director was elected, engage in any business transactions with the school district in which he or she is elected or be employed in any capacity by the school district in which he or she is elected or receive from the school district any pay for services rendered to the district except as provided in the Act. 24 P.S. §3 -324. Thus, unless there existssome exception you would be prohibited, as a school director, from rendering services for compensation to the district. In the instant situation, we note that the School Code does contain such an exception. In certain school districts a school director may hold the position of secretary or treasurer for the school board. 24 P.S. §4 -404. Thus, it appears as though pursuant to the School Code, you may serve in the position of school secretary and receive compensation, therefor. See Rencker v. German Township School District, 341 Pa. 369, 19 A.2d 402, (1941). In addition to the foregoing, it is noted that you neither voted for yourself to obtain this position nor participated in the fixing of compensation that was to be paid for your service in this position. As a_ result, we do not believe that there was any violation of Section 403(a) of the State Ethics Act. In addition to the foregoing, the State Ethics Act provides as follows Section 3. Restricted activities. (c) No public official or public employee or a member of his immediate family or any business in which the person or a member of the person's immediate family is a di rector, officer, owner or holder of stock exceeding 5% of the equity at fair market value of the business shall enter into any contract valued at $500 or more with a governmental body unless the contract has been awarded Ms. Mamie Streightiff Page 4 May 2, 1986 through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. Any contract made i n violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of making of the contract. 65 P.S. 403(c). This Commission has previously determined that Section 403(c) of the State Ethics Act would be applicable to any situation wherein a public official attempted to enter into a contract with his governmental body in excess of $500. This would include employment contracts as well as contracts for other types of services, goods, or materials. Section 3(c) of the State Ethics Act does not absolutely prohibit a public official from entering into a contract with his governmental body, but rather places certain restrictions on the obtaining of such a contract. Within this provision of law, an open and public process must be employed in obtaining such a contract. This Commission has previously determined that that process is met by applying the following standards. 1. Prior public notice of the employment or contracting possibility; 2. Sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; 3. Public disclosure of all applications or proposals considered; 4. Public disclosure of the contract awarded or offered and accepted. See Howard, 79 -044; Fields, 82 -006; Cantor, 82 -004. We must review the instant situation in light of the above standards. The facts in this matter indicate that while the contracting or employment possibility was not publicly advertised in a newspaper, the availability of the position was announced at a public meeting of the school board at which time it was indicated that a substitute would be appointed. That meeting was held in May of 1984. After that point in time, applications were received. There were only two applicants, you and another individual. The time period between the announcement and the appointment of the board secretary was approximately one month. We believe that this was a sufficient and reasonable amount of time for individuals to present applications. The other individual who applied for the position was interviewed as well as tested and the test results indicate that you were the better qualified candidate. You were appointed to the position on June 20, 1983, and this was done during a public meeting of a school board. The only element of the open and public process that does not appear to have been met was that there was no public disclosure of the other application considered. We do not believe, however, this missing element, in and of itself, rises to a violation of the State Ethics Act. Ms. Mamie Streightiff Page 5 May 2, 1986 Additionally, we note that while it is the better practice to publicly advertise the availability of such a position, in the instant situation and based upon the facts of this matter we do not believe that the absence of an advertisement would alter this result. We note that our conclusion is occasioned by the fact that our investigation revealed that the announcement at the public meeting was sufficient to draw additional applications. Under different circumstances, this result may be altered. Finally, we note that under Section 3(c), in order to obtain a contract with one's own governmental body, the individual involved must not participate to any extent i n the contract review or award. In the instant situation, you abstained from all participation in this matter. We also note that Section 3(c) of the State Ethics Act would only permit a person to contract with their own governmental body to the extent that such is not prohibited by other provisions of law. Thus, in the instant situation, a contract of employment by a board director to serve in a position as secretary /treasurer appears to be expressly permitted. The School Code does, however, appear to prohibit other types of contracts and a school director's interest in such contracts. C. Conclusion: You did not violate Section 3(a) or 3(c) of the State Ethics Act when you obtained the position as secretary to the Southern Huntingdon School Board when you are also a member of that board. You abstained from participating in the board's consideration and final disposition of this matter and we believe that the facts indicate that the matter was conducted through an open and public process, Our files in this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. 408(a). However, this Order is final and will be made available as a public document 15 days after service (defined as mailing) unless you file documentation with the Commission which justifies reconsideration and /or challenges pertinent factual findings. See 51 Pa. Code 2.38. During this 15 -day period, no one, including the Respondent unless he waives his right to challenge this Order, may violate this confidentiality by releasing, discussing or circulating this Order. Any person who violates the confidentiality of a Commission proceeding is guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned for not more than one year or both, see 65 P.S. 409(e). By the Commission, G. Sieber Pancoast Chairman