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Home My WebLink About00-566 DunkinSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 -932 -0936 ADVICE OF COUNSEL April 14, 2000 Terry Elizabeth Silva, Esquire Silva & Associates, P.C. 1429 Walnut Street, Suite 900 00 566 Philadelphia, PA 19102 Re: Conflict; Public Official /Employee; Secretary; President; School Board; Private Pecuniary Benefit; College; Courses; Reimbursement. Dear Ms. Silva: This responds to your letter of March 13, 2000, by which you requested advice from the State Ethics Commission. JSSUe: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq., presents any prohibition or restrictions upon school board members in taking college level courses in areas of responsibility as school board members, at the expense of the school district. Facts: As Solicitor for the Chichester School District, you seek an advisory as to whether it would be appropriate to proceed with plans to institute a new policy within the District. William Dunkin as President and William Rittmayer as Secretary of the Chichester School Board have authorized you to seek advisory on their behalf concerning this policy. Advice is sought as to whether School Board Members are permitted, under the School Code and the Ethics Act, to take courses for credit through a college level program with the costs reimbursed upon success completion of the courses. You state that the School Code and Ethics Act permit a Board Member to attend seminars, conferences, and other informal classes. Many of the colleges and universities offer better courses on particular topics that relate to the areas of responsibilities of the School Board Members. The Members of the School Board are assigned to chair particular committees to oversee the activities, programs, and developments within the District. Examples of standing committees are curriculum and instruction, budget and finance, technology, and buildings and grounds. You believe it would behoove the District to have the Board Members as the heads of these committees to seek specific education in their areas of responsibility. Although the Public School Code allows for seminars /conferences, it does not specifically provide for course reimbursement. The Board Member who suggested this actually drafted the policy to parallel the "language entitling union members to receive FAX: (717) 787 -0806 • Web Site: www.ethics.state.aa.us • e -mail: ethics @state.oa.us Silva 00 -566 April 14, 2000 Page 2 credit reimbursement assuming that the member takes courses pertinent to the 'educational responsibilities' within the [Diistrict ". The Board Members note that union representatives may take courses to help them negotiate a collective bargaining agreement while the Board Members, who would be on the other side of the bargaining table, are unable to take the same or similar courses at the expense of the District. Similarly, there are administrators and union members who take courses in the areas or curriculum or technical development which advance their performance within the District, while the Board Members, who volunteer their time, are unable to avail themselves of the same opportunities under the current policies. A proffered alternative would be that the Board Members could audit courses at District expense. Auditing courses would not give the Board Member college credits, but there still would be an expense for their attendance. The Board Members volunteer their time and commit major segments of time to managing the resources of the District. It is their request that they be able to attend courses in order to refine the skills necessary to perform their responsibilities. They are willing to donate their time to attend such courses, but they would like to have reimbursement from the District for the actual cost of the courses. 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. Second, since the advisory authorization that you have provided was only given by Dunkin and Rittmayer, this Advice is limited to addressing the conduct of only these two Members. Third, since the Commission only administers the Ethics Act (and Lobbying Disclosure Act), no advice may be provided as to the Public School Code. As Secretary and President for Chichester School Board, Dunkin and Rittmayer are public officials as that term is defined in the Ethics Act, and hence they are 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: Silva, 00 -566 April 14, 2000 Page 3 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. 65 Pa.C.S. §1102. 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. Under Section 1103(a) of Ethics Act quoted above, the Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of the law. Thus, use of office by a public official to obtain a financial gain which is not authorized is prohibited by Section 3(a): Hoak /McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own financial interests; Koslow v. State Ethics Commission, 116 Pa. Commw. Ct. 19, 540 A.2d 1374 (1988). In applying the above provisions of the Ethics Act to the instant matter, pursuant to Section 1103(a) of the Ethics Act, there does not appear to be any authorization in law which would allow school board members to be compensated for taking or auditing college courses, at school district expense, even if such courses relate to the areas of responsibility of the school board members vis -a -vis the school district. This is based upon judicial precedent that a public official may only receive compensation or benefits that are specifically provided in law. See, R.H. v. State Ethics Commission, (Pa. Cmwlth.), 673 A.2d 1004 (1996). Accordingly, absent specific authorization by law, the school directors could not, under Section 1103(a) of the Ethics Act, audit or take college courses at school district expense when the courses relate to their areas of responsibility with the school district. 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. Conclusion: As President and Secretary for Chichester School Board, William Dunkin and William Rittmayer are public officials subject to the provisions of the Public Silva, 00 -566 April 14, 2000 Page 4 Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. Absent specific authorization by law, the school directors could not, under Section 1103(a) of the Ethics Act, audit or take college courses at school district expense when the courses relate to their areas of responsibility with the school district. 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 (717- 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. rely, Vincent J. .opko Chief Counsel