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HomeMy WebLinkAbout79-561 McKayTO: STATE ETHICS COMMISSION P. 0. Box 1179 Harrisburg, PA 17108 DRAFT OPINION December 19,, 1979 Donald R. McKay, Esquire Cusick, Madden, Joyce & McKay First Federal Building Sharon, . PA 16146 Advice Number 79,56l RE: School Board Directors With Financial Interests FACTS: On December 28, 1979 Donald R. McKay submitted several questions with respect to school directors whom he represents. The first question he asked is if there is any conflict for a school director to have his spouse employed by the school district prior to his becoming school director. The second set of questions asks whether School Director Leyde, School Director Brest, and the - spouse of School Director Kilgore are barred from dealing with other . school districts. Mr. McKay also advised that Phyllis Chantemerle is presently an officer of a corporation which offers photographic services to school districts. This service agreement is usually between the photographic service corporation and the parents of the children, rather than the school board. DISCUSSION: The issue relates to whether S3 (c) applies to these fact situations. There is no conflict where a,spouse is employed by a school district prior to that person becoming a school director. Where the person is- employed as a switchboard operator, S3 (c) requires an open and public process requires no good and public process if her present contract is terminated. The requirements of an open and public process are met if there is prior public notice that the switchboard operator's contract will be considered at a certain meeting. DRAFT OPINION PAGE 2 §324 of the School Code bars employment and "pay" to school directors. Whether §3 (c) of the State Ethics Act impliedly repeals the absolute bar of §324 is an open question, which should be resolved by a court. Until judicial resolution occurs, prudence dictates following the general rule that "implied repealers" are not favored as a rule of construction. School Director Leyde, School Director Kilgore's spouse, and School Director Brest are not barred from dealing with other school districts under the State Ethics Act because each school district is independent. The only way a photographer can conduct business within a school building is through permission of the school board. Since Ms. Chantemerle is an officer in a photography business which seeks to take students' pictures, §3 (c) applies. Permission must be granted for a contract with the parents, therefore this permission must be granted "through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded." Although "permission," may not be interpreted to be a "contract ", utilization of §3 (c) is justified under §3 (d) of the Act which allows the Commission to address other areas of possible conflict. §324 of the School Code does not appear to apply because no "pay" is being received by photographer from the school board. Given the delay between the request date, and the date of this Advice, this Advice is prospective in application only. CONCLUSION: There is no conflict of interest or violation of the State Ethics Act where a spouse of an employee of a school district becomes a school director. If the employee's contract is terminated or subject to renewal, there should be prior public notice that the contract is being renewed. Neither school directors nor their spouses are barred from dealing with other school districts under the State Ethics Act because each school district is 4n independent political subdivision. ?permission to a photographic service corporation must be granted through an open and public process as defined by §3 (c) where an officer in that corporation is a school director. DRAFT OPINION PAGE 3 Pursuant to Section 7(9)(ii), this 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, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the advice given. A personal appearance before the Commission and a formal opinion will be issued upon your request, if you feel this reply does not suffice. This letter is a public record and will be made available as such.