HomeMy WebLinkAbout00-611 SaussamanJosie Saussaman
P.O. Box 392
Summerdale, PA 17093
Dear Ms. Saussaman:
ADVICE OF COUNSEL
October 2, 2000
00 -611
Re: Conflict; Public Official /Employee; School Director; School District; Foundation for
Education and Community; Realtor; Sale of Foundation Property.
This responds to your letter of August 28, 2000 by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa. .S. §1101 et seq., presents any prohibition or restrictions upon a school director with
regard to serving on a committee for a non - profit foundation which raises money to
contribute to the local township and school district, and, in her capacity as a Realtor,
representing that foundation in the sale of its property.
Facts: As a School Director for East Pennsboro School District ( "School District "),
you seek an advisory from the State Ethics Commission. The facts which you have
submitted may be fairly summarized as follows.
You represent the School District on a committee for the East Pennsboro
Foundation for Education and Community ( "Foundation "). You state that you and other
School Directors who serve on the committee are not voting members of the Foundation,
but rather, are advisory members.
The Foundation is a non - profit organization that raises money in order to give
contributions to the Township of East Pennsboro and the East Pennsboro School District.
The Foundation accepts no money from the School District. You have submitted a copy
of the Foundation's Bylaws, which document is incorporated herein by reference.
You are also a Realtor. You expect to represent the Foundation as its Realtor in
the sale of certain property that it owns.
You seek a ruling as to whether, in your capacity as a School Director, you would
have a conflict under the Ethics Act based upon the above facts.
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 requestor based
upon the facts which the requestor has submitted. In issuing the advisory based upon
the facts which the requestor has submitted, the Commission does not engage in an
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October 2, 2000
Page 2
independent investigation of the facts, nor does it speculate as to facts which have not
been submitted. It is the burden of the requestor 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 requestor has truthfully disclosed all of the material facts.
As a School Director for the East Pennsboro School District ( "School District "), you
are a public official as that term is defined in the Ethics Act, and hence you are subject to
the provisions of that Act.
Section 1103(a) of the Ethics Act provides:
Section 1103. Restricted activities
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
65 Pa.C.S. §1103(a).
The following terms are defined in the Ethics Act as follows:
Section 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.
"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.
In addition, Sections 1103(b) and 1103(c) of the Ethics Act 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 anything of monetary value based upon the
understanding that the vote, official action, or judgment of the public official /employee
would be influenced thereby. Reference is made to these provisions of the law not to
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October 2, 2000
Page 3
imply that there has been or will be any transgression thereof but merely to provide a
complete response to the question presented.
Section 1103(j) of the Ethics Act provides as follows:
Section 1103. Restricted activities.
(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
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(j).
In each instance of a conflict, Section 1103(j) requires the public official /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 or
supervisor.
In the event that the required abstention results in the inability of the governmental
body to take action because a majority is unattainable due to the abstention(s) from
conflict under the Ethics Act, then voting is permissible provided the disclosure
requirements noted above are followed. See, Mlakar, Advice 91- 523 -S.
In applying the above provisions of the Ethics Act to the instant matter, pursuant to
Section 1103(a) of the Ethics Act, the essential elements for a conflict of interest are: (1)
the use of the authority of the public position or confidential information received by
holding the public position; for (2) 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 facts which you have submitted do
not establish these essential elements for a conflict of interest. Even assuming that the
Foundation would be considered a business with which you are associated, there is no
indication that there would be any use of the authority of your public office as a School
Director, or any use of confidential information received by being a School Director, for
the private pecuniary benefit of yourself or the Foundation. Absent the essential
elements, you would not have a conflict of interest under the Ethics Act.
If a conflict of interest would arise for you in some future matter, Section 1103(a) of
the Ethics Act would not preclude your service on the School Board, as your request
letter seems to suggest. Rather, the duty of a public official faced with a conflict is to
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October 2, 2000
Page 4
abstain from such matter fully and to satisfy the disclosure requirements of Section
1103(j) as set forth above.
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: As a School Director for the East Pennsboro School District ( "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. Under the facts which you
have submitted, your services as a Realtor for the East Pennsboro Foundation for
Education and Community, a private non - profit organization for which you serve on a
committee as a representative of the School District, would not present a conflict of
interest under the Ethics Act because there would be no use of the authority of your
public position or confidential information received by being in your public position for a
prohibited private pecuniary benefit. Lastly, the propriety of the proposed conduct has
only been addressed under the Ethics Act.
Pursuant to Section 1107(11), 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 requestor 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 §13.20. 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,
Vincent J. Dopko
Chief Counsel