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HomeMy WebLinkAbout01-535 BartgesHannah J. Bartges 428 Buch Avenue Lancaster, PA 17601 Dear Ms. Bartges: ADVICE OF COUNSEL April 6, 2001 01 -535 Re: Conflict; Public Official /Employee; Candidate; School Director; Township; Business With Which Associated; Independent Contractor; Garden Consultant; Stipend; Contract. This responds to your letter of March 6, 2001, 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 who, in a private capacity, receives a stipend from the school district for rendering gardening consulting services to various schools within the school district as an independent contractor. Facts: For the past fifteen years, you have been an active parent volunteer in the Manheim Township School District ( "School District "). Through your volunteer activities, you initiated a garden program that is now district -wide and encompasses seven child - tended gardens. For the past five years, you have been in private practice as a garden consultant, rendering your professional services to schools within the School District as an independent contractor. The services you provide include acting as a garden instructor in each building and for the children's fall and spring clubs, and coordinating the children's summer garden programs. You believe that the programs you design for the School District are unique and could not exist without your leadership. You have published articles about your programs and have piloted curriculum ideas, which have appeared in national publications. In return for your p rofessional services, the School District pays you a quarterly stipend, which is funded the budgets of each school that contracts your services. You state that you use your stipend to pay for books and curriculum materials, your own continuing education, and transportation. You anticipate that you will receive less than $3,000 from the School District this year. You state that you are a candidate for School Director in Manheim Township. Assuming you would win the election, you ask whether you would have a conflict if you Bartqes, 01 -535 April 6, 2001 Page 2 would continue to receive a stipend for your services as a garden consultant while serving as School Director. You further ask whether it would make a difference if the stipend would be placed in a fund that could be used to pay for the items delineated above. Finally, you ask whether your involvement in the program itself would create a conflict. 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 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. If elected to the position of Manheim Township School Director, you would be a public official as that term is defined under the Ethics Act, and hence you would be subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides: $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: $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. Bartqes, 01 -535 April 6, 2001 Page 3 "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. "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. The term shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 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 imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 1103(f) of the Ethics Act provides as follows: $1103. Restricted activities. (f) Contract. - -No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. §1103(f). Section 1103(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official /public employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an "open and public process" be observed as to the contract with the governmental body. Pursuant to Section 1103(f), an "open and public process" includes: Bartqes, 01 -535 April 6, 2001 Page 4 (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; and (4) public disclosure of the contract awarded and offered and accepted. Section 1103(f) of the Ethics Act also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. Section 1103(j) of the Ethics Act provides as follows: $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. As to Section 1103(a) of the Ethics Act, the Commission has held that a public official /public employee may not use the authority of his public position or confidential information for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited under Section 1103(a) would include: (1) the pursuit of a Bartqes, 01 -535 April 6, 2001 Page 5 private business opportunity in the course of public action, Metrick, Order No. 1037; (2 the use of governmental facilities, such as governmental telephones, postage, staff, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order No. 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official /public employee is associated in his private capacity, such as the review /selection of its bids or proposals, Gorman, Order No. 1041. If the private employer or business with which the public official /public employee is associated or clients of the business would have a matter pending before the governmental body, the public official /public employee would have a conflict of interest as to such matter. Kannebecker, Opinion 92 -010; Miller, Opinion No. 89 -024. In each instance of a conflict of interest, the public official /public employee would be required to abstain from participation and to satisfy the disclosure requirements of Section 1103(j). Having established the above general principles, your specific inquiries shall now be addressed. Although you would not have a conflict as to your continued receipt of a stipend from the School District while serving as a School Director, pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in matters before the School Board that would result in a financial gain to you or your gardening consulting business, a business with which you are associated. Hence, you would have a conflict in matters involving services that you would provide to the School District, as for example, the retention of your professional services by the School District and any compensation paid to you by the School District for such services rendered. In each instance of a conflict, you would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. The abstention requirement would not be limited to voting, but would extend to any use of authority of office. The use of authority of office as defined in the Ethics Act includes, for example, discussing, conferring with others, and lobbying for a particular result. See, Juliante Order 809. Finally, if the services your business would provide to the School District would be $500 or more, the requirements of Section 1103 f) of the Ethics Act would have to be strictly observed. Under Section 1103(f), you could not have any supervisory or overall responsibility as to the implementation or administration of the contract with the School District. Parenthetically, although the contracting in question would not be prohibited under the Ethics Act provided the requirements of Sections 1103(a), 1103(f) and 1103(j) are satisfied, a problem may exist as to such contracting under the respective code. In the instant situation, the Public School Code of 1949, as amended, provides as follows: §3 -324. Not to be employed by or do business with district; exceptions. No school director shall, during the term for which he was elected or appointed, as a private person engage in any business transaction with the school district in which he is elected or appointed, be employed in any capacity by the school district in which he is elected or appointed, or receive from such school district any pay for services rendered to the district except as provided in this act... . 24 P.S. §3 -324. Since such contracting may be prohibited by the above quoted provision, it is suggested that you seek legal advice in that regard. Bartqes, 01 -535 April 6, 2001 Page 6 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: If elected to the position of Manheim Township School Director, you would be 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 gardening consulting practice is a business with which you are associated. Although you would not have a conflict as to our continued receipt of a stipend from the School District while serving as a School Director, pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in matters before the School Board that would result in a financial gain to you or your gardening consulting business. Hence, you would have a conflict in matters involving services you would provide to the School District, as for example, the retention of your professional services by the School District and any compensation paid to you by the School District for such services rendered. In each instance of a conflict, you would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. If the services your business would provide to the School District would be $500 or more, the requirements of Section 1103(f) of the Ethics Act would have to be strictly observed. Under Section 1103(f), you could not have any supervisory or overall responsibility as to the implementation or administration of the contract with the School District. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. It is suggested that legal advice be obtained with regard to the applicability of the Public School Code. 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 13.2(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, Vincent J. Dopko Chief Counsel