HomeMy WebLinkAbout92-618Thomas W. Ring, III, Esquire
Dillon McCandless & Ring
128 West Cunningham Street
Butler, PA 16001
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
July 30, 1992
92 -618
Re: Conflict, Public Official /Employee, School Director, Use of
Authority of Office or Confidential Information, Vote, Bus
Driver, Contractor, Transportation Contract, School District.
Dear Mr. King:
This responds to your letters of June 12, 1992, June 25, 1992
and July 1, 1992, in which you requested advice from the State
Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law
presents any prohibition or restrictions upon a school director
from participating in discussions relating to negotiations with a
bus contractor and /or voting on the negotiated contract with the
bus contractor, where the school director is employed part -time by
the contractor as a bus driver.
Facts: As the Solicitor for the South Butler County School
District, you request an advisory on behalf of Mr. Richard Sefton,
a School Director for the South Butler County School District. You
state that Mr. Sefton was employed as a part -time bus driver during
the previous school year (1991 - 1992). Mr. Seftof is not currently
driving a bus for the company in question, which is a contractor to
the School District, and he is not receiving compensation of any
form at this time from the bus company. Mr. Sefton has not
definitely committed to return to this position in the fall,
although you state that "he most likely has a reasonable
expectation of returning in the event that he desires to do so."
(Letter of July 1, 1992 at 1).
You state that the School District is commencing negotiations
with regard to the matter of the bus contract between the District
and the contractor by whom Mr. Sefton has been employed.
You specifically ask whether Mr. Sefton is permitted to
Thomas W. King, III, Esquire
July 30, 1992
Page 2
participate in discussions among the Board Members relating to the
negotiations with the contractor and further whether Mr. Sefton may
vote on the negotiated contract. You additionally inquire as to
whether the other eight Board Members are permitted to discuss the
details of the contract and contract negotiations with Mr. Sefton
in the event that Mr. Sefton is restricted from participation in
the negotiation process.
Noting that you are under a time constraint to conclude the
bus negotiations prior to the commencement of school, you request
an expedited advisory.
Discussion: As a School Director for the South Butler County
School District, Mr. Richard Sefton is a public official as that
term is defined under the Ethics Law, and hence he is subject to
the provisions of that law.
Section 3(a) of the Ethics Law provides:
Section 3. Restricted Activities.
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict. of .interest.
The following terms are defined in the Ethics Law as follows:
Section 2. 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. "Conflict" or "conflict of
interest" 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
Thomas W. King, 1II, Esquire
July 30, 1992
Page 3
which is necessary to the performance of
- duties and responsibilities unique to a
particular public office or position of public
employment -: •.
"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.
"Contract." An agreement or arrangement
for the acquisition, use or disposal by the
Commonwealth or a political subdivision of
consulting -or other services or of supplies,
materials, 'equipment, land or other personal
or real property. "Contract" shall not mean
an agreement or arrangement between the State
or political subdivision as one party and a
public official or public employee as the
other party, :- concerning . - =his _ ___ .expense,
reimbursement, salary, wage, retirement or
other benefit, tenure or other matters in
consideration of his . current public employment
with the Commonwealth` or a political
subdivision.
In addition, Sections 3(b) and 3(c) of the Ethics Law 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 action, or judgement of the
public official/employee would be influenced thereby. Reference is
made jo. 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 3( of the Ethics Law provides:
Section 3.•` Restricted activities
(f) . Info 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
Thomas W. King, III, Esquire
July 30, 1992
Page 4
with the governmental body with which the
public official.: or 'public employee is
associated, unless the contract has been
awarded through anopen 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
� akinn of the contract or subcontract
Parenthetically, where contracting is otherwise allowed or
where there appears to be no expressed prohibitions to such
contracting, the above particular provision of law would require
that an open and public process must be used in all situations
where a public official /employee, his spouse or child, or a
business with which he or his spouse or child is .associated is
otherwise appropriately contracting with his owrt governmental body
in an amount of $500.00 or more. This open and public process
would requires
(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.
Sectic 3(f) of the Ethics Law also requires that the public
official /employee may not have any supervisory or overall
responsibility as to the implementation or administration of the
contract.
Eee tion 3(j) of the Ethics Law provides as follows
seotio A. _Rettri.cted activities.
(j) Where voting conflicts are not
otherwise addressed by the Constitution of
Thomas W. King, III, Esquire
July 30, 1992
Page 5
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.
If a``confl3ict exists, Section 3(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 Law to the
circumstances which you have submitted, pursuant to Section 3(a) of
the Ethics Law, 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 vhich he or a member of his immediate family is associated.
It appears that Mr, Sefton is a part -time employee of the bus
company which is a contractor to the School District, and that
there is every reeson to believe that he will resume his employment
duties with the bus company in the fall of 1992. Therefore, the
bus company is a business with which Mr. Sefton is associated.
Thomas W. King, III, Esquire
July 30, 1992
Page 6
It is clear that Mr. Sefton would have a conflict of interest
as to any bus : contracts and /or related " negotiations, ether with
this bus company or its competitors. In Fletcher, Opinion 89 -018,
a school director who was ennpi,oyed as a bus driver by a contracter
transporting students for the school, district was "required to
abstain from any matter involving the business with which she was
associated or its competitors, as well as from other matte
involving the transportation of school students /d. at 3-4. The
school director was also , precluded from serving on the
transportation committee which would consider contracts with her
employer as well as with other transportation contractors. Id. See
also, Mier, Opi.nign 89 -024.
Similarly, Mr. Sefton would have a conflict of interest in
matters pertalrinc to his own employer and /or its competitors. In
each instance of a conflict of interest, Mr. Sefton would be
required to abstain- from any participation of any nature
whatsoever, including but not limited to taking part in
discussions, lobbying for a particular result, exerting influence,
and /or voting.
Pursuant to Section 3(a), Mr. . Sefton would additionally be
precluded from having access to confidential information regardi
transporation contracts or related . " negotiations given the risk o
disclosure of such confidential information which would defeat the
negotiation process. See, 7n teen, flr, Opinion 90-017.
Your final inquiry is whether the other eight Bowed ' M tubers
are permitted to discuss the details of the contract and contract
negotiations with Mr. . Sefton. Under these circumstances, Section
3(a) would not restrict the conduct of the other eight School
Directors, assuming that they have no oonf lists themselves, begagse
the "requisite element of a prohibited private pecuniary benefit
would not be present as to those members Rather, Section $(a)
would restrict the proposed conduct of Mr. Sefton who may not have
access to such confidential information because hp would have a
conflict of Interest. The burden :would be upon Mr. Sefton to
refuse the proffered access to such confidential information
Although you have ' not specifically questioned the
applicability of .Section 3 (f) of the Ethics law to the prospective
contract with "ice. Sefton' employer, it is.,parontheticolly noted
that Section 3(f) would appear to apply and must be obaerved.
The propriety of the proposed conduct has only been address
under the Ethics Law; the applicability of any other etattstp,.: ode.,
ordinance, regulation or other code of Qonda.ct other than the
Ethics Law has not been considered in that they do not involve an
interpretation .of the Ethics Law. Specifically not addressed
herein is the applicability of the pichoo1 Code.
Timas W. King, III, Esquire
Jay 30, 1992 _
Page 7
Conclusion: As a School Director for South Butler County School
District, Mr. Richard Sefton is a public official subject to the
provisions of the Ethics Law. Mr. Sefton would have a conflict of
interest in matters pertaining to bus ` contracts and /or related
n getiations, either as to his employer or its competitors In
peach ,instance of a conflict of interest, Mr. Sefton would be
required to abstain from any participation of any nature
whatsoever, including but not limited to taking -part in
discussions, lobbying for a particular result, exerting influence,
and/or , "voting. . In each instance of a conflict of interest Mr:
Sefton would be required to fully - satisfy the disclosure
requirements of Section 3(j). Mr. Sefton may not have access-to
confidential information pertaining to bus contracts or related
negotiations, and he must refuse any proffered access to such
gOnfidefti.al _information . The requirements of Section 3 (f) `must be
gbgerved as to any contract valued at $500.0 or more between the
School District and the bus company by which Mr. Sefton is
e layed. Lastly, the propriety of the proposed conduct has only
been addressed under the Ethics Law.
Pursuant to Section 7(11), 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.
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 request that the full Commission
review this Advice. A personal appearance before the Commission
will be scheduled and a formal: Opinion from the Commission will be
issued. Any such, appeal must bein writing and must be received at
the Commission within 15 days of the date of this Advice pursuant
to 51 Pa. Code §2.12.
S' cerely,
■"A '00r60
Vincent J. Dopko
Chief Counsel
r
•