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HomeMy WebLinkAbout99-522 DiMedioDear Mr. Potash: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL March 11, 1999 Charles Potash, Esquire Wisler, Pearlstine, Talone, Craig, Garrity & Potash, LLP 484 Norristown Road, Ste. 100 Blue Bell, PA 19422 -2326 FAX: (717) 787 -0806 • Web Site: www.ethics.state.Da.us • e- mail; ethics @state.pa.us 99 -522 Re: Conflict; Public Official /Employee; Technology Coordinator; School District; Immediate Family; Daughter; Business; Employee; Business with which Associated; Contract; Purchase. This responds to your letter of January 26 and February 18, 1999 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 gt sep. presents any prohibition or restrictions upon the technology coordinator of a school district as to recommending or issuing purchase orders to a business which employs her daughter. Facts: As Solicitor for the Lower Merion School District ( "School District "), you have been authorized by Virginia M. DiMedio ( "DiMedio ") to request an advisory on her behalf. DiMedio, as the Technology Coordinator for the School District, recommends purchases and issues purchase orders for equipment and software from various companies. DiMedio's daughter, Heather, works for a company which sells computers and software to school districts. You state that this company is very reputable and provides excellent service. You ask for an advisory from the State Ethics Commission as to whether DiMedio, as Technology Coordinator for the School District, may recommend purchases or issue purchase orders for equipment and software from the company which employs her daughter. Additionally, you ask if the School District is permitted to deal with the company which employs DiMedio's daughter. You state that Heather will not receive any direct benefits if the School District purchases equipment or software from the company which employs her. 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 Potash 99 -522 March 11, 1999 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 Technology Coordinator for Lower Merion School District, Virginia M. DiMedio ( "DiMedia ") is a public employee as that term is defined in the Ethics Act, and hence she is subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides: 65 Pa.C.S. §1102. 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. "Immediate family." A parent, spouse, child, brother or sister. "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. Potash, 99 -522 March 11, 1999 Page 3 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. 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: Section 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 1 103(f), an "open and public process" includes: (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. Potash, 99 -522 March 11, 1999 Page 4 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: 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. As to the specific inquiries you have posed, the question of whether the School District may deal with or purchase equipment or software cannot be addressed. The Ethics Act governs the conduct of public officials, public employees, candidates, and, to a limited extent, people who deal with the foregoing. The Ethics Act does not regulate governmental bodies. As a public employee, the conduct of DiMedio is subject to the Ethics Act. DiMedio's daughter is a member of her "immediate family" as that term is defined in the Ethics Act. The company which sells computers /software is a business with which DiMedio's daughter is associated in that she is employed by that company. Accordingly, that company is a business with which a member of DiMedio's immediate family is associated under the Ethics Act. See, 65 Pa.C.S. §1102 quoted above. DiMedio would have a conflict as to the company that employs her daughter and could not recommend or issue purchase orders as to that company. Similarly, DiMedio could not make recommendations against competing companies where such action would as a result ensure that the company which employs her daughter would obtain a contract by the elimination of competitors. It is not relevant under the Ethics Act that neither Potash, 99 -522 March 11, 1999 Page 5 DiMedio nor her daughter would benefit from the transactions. As to matters involving that company, DiMedio must recuse herself and observe the disclosure requirements of Section 1103(j). In addition, as to any contract of $500 or more between the School District and the company that employs DiMedio's daughter, Section 1103(f) would require an open and public process, as detailed 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 the Technology Coordinator for Lower Merion School District, DiMedio is a public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 EI fgg. Under Section 1103(a) of the Ethics Act, DiMedio has a conflict as to a business with which a member of her immediate family is associated, could not participate as detailed above, and must observe the disclosure requirements of Section 1103(j). In addition, for any contract of $500 or more between that business and the School District, the requirements of Section 1103(f) must be satisfied. 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. erely, Vincent J. Dopko Chief Counsel 4