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HomeMy WebLinkAbout00-563 BrewerSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1-800- 932 -0936 ADVICE OF COUNSEL April 7, 2000 Ned J. Nakles, Jr., Esquire Nakles and Nakles Lincoln Professional Building 1714 Lincoln Avenue 00 563 Latrobe, PA 15650 -3097 Re: Conflict; Public Official /Employee; Member; School Board; Director; Event; Coordinator; Compensation; Business with which Associated; Organization. Dear Mr. Nakles: This responds to your letter of March 14, 2000 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 el seq., presents any prohibition or restrictions upon a school board director as to serving as the compensated coordinator for an organization that brings speakers to the school to speak to students on various topics. Facts: As Solicitor for the Greater Latrobe School District (District), you request an advisory on behalf of Robert Brewer (Brewer), a Member of the Greater Latrobe School Board. As part of its mission statement, the District has a goal to be actively involved in community services and affairs. The District is a member of a group known as the Human Services Task Force (Task Force). The Task Force, which is comprised of local businesses and community leaders along with representatives from a number of local community charitable foundations, seeks to develop community outreach and in- school programs. The Task Force is currently attempting to coordinate a special project known as the 2001 Summit (Summit) which is slated to be a one -time event, but may become an annual event depending upon its success. The purpose of Summit is to bring motivational speakers on various topics to meet with and speak to various groups of students. The Summit's funding will be provided by two local charitable foundations: the McFeely- Rogers Foundation and Latrobe Foundation. The District will not be contributing any funds to the project, but will be a Task Force Member involved in the planning of Summit. Time and energy will be spent by representatives of the District, including its administrators, on this event. Brewer has been suggested to serve in the position of Special Project Coordinator for the Summit event. His responsibilities would include the coordination FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Nakles 00 -563 April 7, 2000 Page 2 of groups and activities. Brewer would only be retained for the 2001 Summit. although there is a possibility that he would be retained for future events. The estimated income for the position of Special Project Coordinator will be no more than $2,000. However, it is possible that if future Summits are held, Brewer may be retained as coordinator although he will never receive a regular salary. The District will pay no monies to Brewer or Summit. You ask whether there are any ethical considerations which would "militate" against Brewer serving as the Coordinator for Summit. You also ask whether Brewer should abstain from any Board action relating to Summit if he is able to act as the Coordinator. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1 107(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. §51107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Second, since the Ethics Act only regulates the conduct of public officials, it is beyond our scope of inquiry to opine as to whether Brewer chooses to work in a private capacity as the Special Project Coordinator for Summit. As a Member for Greater Latrobe School Board, Brewer is a public official as that term is defined in the Ethics Act, and hence Brewer is subject to the provisions of that Act. Section 1 103(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 Nakles 00-563 April 7, 2000 Page 3 or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "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 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. Nakles, 00 -563 April 7, 2000 Page 4 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 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. Factually, if Brewer is an employee of Summit, it would be a "business" with which Brewer, as an employee, is associated. First, the definition of the term "business" as set forth in the Ethics Act is very broad. Novak, Opinion No. 91 -009. Summit would at least be an "organization" within that definition. Second, the fact that Summit might be a non - profit organization would not disqualify it as a "business." The word "or" toward the end of the 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 No. 1045 at 31 (Citing, Confidential Opinion, No. 89 -007; McConahy, Opinion No. 96 -006). Since Summit is a "business" as that term is defined in the Ethics Act, it would be a business with which Brewer is associated in his capacity as the Special Project Coordinator, provided he is an employee of Summit. As noted above, the Ethics Act would not prohibit Brewer from working and receiving compensation as the Special Project Coordinator of Summit. Assuming that Brewer would be an employee of Summit, it would be a business with which Brewer is associated. Brewer would then have a conflict, could not participate and must observe the disclosure requirements of the Ethics Act as to matters involving Summit that come before the School Board. If Summit is not a business with which Brewer is associated, he would not have a conflict under the Ethics Act as to matters involving Summit that would come before the School Board. 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 Member for Greater Latrobe School Board, Brewer is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et sue. Since Summit is a "business' under the Ethics Act, it would be a business with which Brewer is associated in his capacity as the Special Project Coordinator, provided he is an employee of Summit. Assuming that Brewer would be an employee of Summit, Brewer would have a conflict, could not participate and must observe the disclosure requirements of the Ethics Act as to matters involving Summit that come before the School Board. If Summit is not a business with which Brewer is associated, he would not have a conflict under the Ethics Act as to matters involving Summit that would come before the School Board. Nakles 00 -563 April 7, 2000 Page 5 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 1. The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (777- 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Vincent J. Dopko Chief Counsel