HomeMy WebLinkAbout01-601 MooreBette A. Moore
Counselor GJCTC /Secretary GJAVTSEA
Director, Richland School Board
3445 Elton Road
Johnstown, PA 15904
ADVICE OF COUNSEL
November 19, 2001
01 -601
Re: Conflict; Public Official /Employee; School Director; School District; Counselor;
Vocational - Technical School; Secretary; Local Education Association; Business
With Which Associated.
Dear Ms. Moore:
This responds to your letter of October 15, 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 is employed as a counselor at the area vocational — technical school with regard to
also serving as secretary for the local education association.
Facts: You currently serve as a School Director for the Richland School District
(" chool District "). You are also employed as a counselor at the area comprehensive
vocational - technical school ( "vo- tech') as to which the School District is a participating
district.
You have just agreed to serve in the capacity of secretary for your local education
association. You indicate that neither the School District nor the vo -tech is negotiating a
contract. You state that you do not serve in any special capacities for either the School
District or the vo -tech. You ask whether, given your service in the aforesaid positions,
the Ethics Act would present any prohibitions or restrictions as to your service as the
secretary for the local education association.
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
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November 19, 2001
Page 2
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 and vo -tech counselor, you are a public official /public
employee subject to the provisions of the Ethics 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.
"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 (Emphasis added).
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
Moore, 01 -601
November 19, 2001
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:
§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, 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.
It is initially noted that the local education association would be considered a
"business" as that term is defined in the Ethics Act. The definition of the term "business"
is very broad. Novak, Opinion 91 -009. As an "association," the local education
association would clearly fall within that definition.
Further, the fact that the local education association might be a non — profit
organization would not disqualify it as a "business." The word "or" toward the end of the
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November 19, 2001
Page 4
definition of "business" is disjunctive, and the repeated use of the word "any" precludes
any interpretation that the final phrase "legal entity organized for profit" modifies the
preceding forms of entities in the list. See, Soltis - Sparano, Order 1045 at 31 (Citing,
Confidential Opinion, 89 -007; McConahy, 96 -006).
Having established that the local education association is a "business" as that term
is defined in the Ethics Act, it is clear that it is a business with which you are associated,
given your capacity as an officer. Through a straightforward application of the statutory
definition of the term "business with which he is associated," the necessary conclusion is
that the local education association of which you are secretary is a business with which
you are associated.
Although Section 1103(a) of the Ethics Act would not prohibit you from having
outside business activities or employment, you could not use the authority of a public
position, or confidential information received by being in such public position, for the
private pecuniary benefit of yourself or a business with which you are associated.
Under Section 1103(a) of the Ethics Act, your status as a School Director and as a
counselor employed by the area vo -tech would not preclude you from serving as
secretary of the local education association. However, if matters would come before you
in your public capacity that would financially impact the local education association, you
would have a conflict of interest under Section 1103(a) of the Ethics Act.
In each instance of a conflict of interest, you would be required to abstain from
participation 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 of 1949 or the Public Employee Relations Act.
Conclusion: As a School Director for Richland School District ( "School District ")
and a counselor employed at the area comprehensive vocational - technical school ( "vo-
tech"), you are a public official /public employee subject to the provisions of the Public
Official and Employee Ethics Act ( "Ethics Act"), 65 Pa.C.S. § 1101 et seq. Under Section
1103(a) of the Ethics Act, your status as a School Director and vo -tech counselor would
not preclude you from serving as secretary of the local education association. However,
the local education association would be considered a business with which you are
associated, given your capacity as an officer. If matters would come before you in your
public capacity that would financially impact the local education association, you would
have a conflict of interest under Section 1103(a) of the Ethics Act. In each instance of a
conflict of interest, you would be required to abstain from participation and to satisfy the
disclosure requirements of Section 1103(j). 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.
Moore, 01 -601
November 19, 2001
Page 5
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 S 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