HomeMy WebLinkAbout02-538 MathiasHarry Mathias
R.R. #2, Box 179 -A2
Watsontown, PA 177787
Re: Conflict; Public Official /Employee; Member; Board of Education; School District;
Chamber of Commerce; Partnership; Independent Contractor.
Dear Mr. Mathias:
ADVICE OF COUNSEL
March 20, 2002
02 -538
This responds to your letter of February 21, 2002, 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 member of a
board of education who, in a private capacity, provides certain services to a local
chamber of commerce as an independent contractor, where the chamber of commerce
is in a business and education partnership with several different entities, including the
school district.
Facts: You were formerly a teacher in the Warrior Run Area School District
(" chool District "), having retired in June of 1996. As a resident of the School District,
you have applied for a seat on the Warrior Run Board of Education to fill a vacancy
created by the resignation of a sitting Board Member.
You state that your present "employment" is that of a "private contractor." You
further state that you provide contracted services in the field of career awareness to
local chambers of commerce.
One of the local chambers of commerce to which you provide contracted
services is the Milton Area Chamber of Commerce ( "Chamber "). You state that the
Chamber "has" a Business and Education Partnership ( "Partnership ") and that the
School District, Meadowbrook Christian School, Watsontown Christian Academy, Milton
Area School District, and the chamber area business community all contribute to this
Partnership. You note that the School District belonged to the Partnership prior to you
providing contracted services and will likely continue to belong to the Partnership after
you stop providing such services. You state, they have a menu of services for which
they contract my services."
Mathias, 02 -538
March 20, 2002
Page 2
You state that you are not a director, officer, owner, or employee of the Chamber.
You further state that the Chamber does not deduct taxes from your compensation or
provide you with benefits. You maintain that you are simply a private contractor who
receives a fee for your services.
The Warrior Run Board of Education has been advised that you may have a
conflict as a Board Member because you are an "employee" of the Chamber. You seek
an advisory as to whether a conflict would exist given the above stated 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 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 Member of the Warrior Run Board of Education, you would be a "public
official" as that term is defined in 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.
Mathias, 02 -538
March 20, 2002
Page 3
"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.
"Financial interest." Any financial interest in a legal
entity engaged in business for profit which comprises more
than 5% of the equity of the business or more than 5% of the
assets of the economic interest in indebtedness.
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(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).
Mathias, 02 -538
March 20, 2002
Page 4
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 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.
Having established the above general principles, your specific inquiry shall now
be addressed.
The facts which you have submitted are unclear in several respects. First, you
state that your "present employment" is as a "private contractor." Second, you fail to
provide details as to the relationship between the Milton Area Chamber of Commerce
and the Business and Education Partnership and how your role as a private contractor
relates to either of these entities. Third, you state, they have a menu of services for
which they contract your services," but do not explain to whom or to what you are
referring or exactly what this arrangement entails. In that the submitted facts are
unclear, only general advice shall be given.
First, although the Ethics Act would not prohibit you from serving on the Warrior
Run Board of Education, you would have conflicts of interest where business
relationships exist.
Assuming that the chambers of commerce referenced in your request are not
ones in which you are a director, officer, owner, employee, or hold a financial interest,
they would not be businesses with which you are associated. However, based upon
your factual representation that you perform contract work for local chambers of
commerce, business relationships exist between you and those local chambers of
commerce. Therefore, you would have a conflict of interest as to matters that would
come before you as a Member of the Warrior Run Board of Education involving the local
chambers of commerce or any other entities with which you have a business
relationship. See, Miller, Opinion 89 -024; Snyder v. State Ethics Commission, 686 A.2d
843 (Pa. Commw. 1996), alloc. den., 0029 M.D. Allocatur Docket 1997 (Pa. December
22, 1997). 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 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.
Conclusion: As a Member of the Warrior Run Board of Education, 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. Because the submitted facts are unclear, only
general advice shall be given. Although the Ethics Act would not prohibit you from
serving on the Warrior Run Board of Education, you would have conflicts of interest
where business relationships exist. Assuming that the chambers of commerce
referenced in your request are not ones in which you are a director, officer, owner,
employee, or hold a financial interest, they would not be businesses with which you are
associated. However, based upon your factual representation that you perform contract
work for local chambers of commerce, business relationships exist between you and
those local chambers of commerce. Therefore, you would have a conflict of interest as
Mathias, 02 -538
March 20, 2002
Page 5
to matters that would come before you as a Member of the Warrior Run Board of
Education involving the local chambers of commerce or any other entities with which
you have a business relationship. 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.
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, § 13.2(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