HomeMy WebLinkAbout92-619Mr. Terry Van Lear
5,00.9 Forest Avenue
Temple, PA 19560
Re:
Dear Mr. Van Lear:
1.
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
August 10, 1992
92 -619
Conflict, Public Official /Employee, School Director, Use of
Authority of Office or Confidential Information, Business with
which Associated, Transportation Services, School District.
This responds to your letter of July 3, 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 who
is also an officer of a business located in the school district,
with regard to the business servicing district owned vehicles,
which would not require a board decision, or transporting students
pursuant to a "shared services" agreement with the contractor who
provides school bus transportation services to the district.
Facts: As a Member of the Board of the Muhlenberg School District
in Berks County, Pennsylvania, serving the first year of a four
year term, you request an advisory from the State Ethics
Commission. You state that you are Vice - President of a business
located in Muhlenberg School District which provides auto and truck
repair services, auto and truck body restoration services, and
school bus transportation services. However, you note that
Muhlenberg School District contracts with a school bus contractor
ig which you have no financial interest or any interest or control.
You pose the following specific inquiries:
Whether yqur company may perform services on Muhlenberg
District owned vehicles if the responsible person(s) of
the equipment would determine that your written gstizhate
is cheapest. In this regard, you note th&V Sucb
responsible person(s) of the equipment would " �inake the
decision as to where to: have the equipment serviced, and
that it is not a board decision.
Mr. Terry Van Lear
August 10, 1992
Page 2
2. Whether_ it is legal for the' contractor who provides
scbcoo bus transpoxtftlen 'services to Muhlenberg School
District t'o carry in a "shared services" agreement,
s :udents in one of your "contracted districts" with the
objective of $a�-u
'� monies for both districts.
3. = Whether you could provide a service to Muhlenberg School.
District similar to the scenario set forth in gues.tion 2
above, for one of�their st: ents, utilizing a bus which
is base contracted to another - d .strict with Muhlenbeig
School District reimbursing tae extra costs to you. To
exemplify th ,ts question, yop. the scenario of a
student moving toliihienberg School District who attends
a school in Bethlehe a wh .would be a 10-mile round
trip. You apk wh ther it would be legal fez one of your
units which Crave s daily to Bethlehem to transport the
uh.
dent for enberg for $25.00 per day in lieu �of
Muhlenberg transporting the stud at a rate of possibly
over $125.00 per day.
Discussion: As a School Director for Muhlenberg School District in
Berks Cpunty, Pennsylizana.a, you ' are a public official 'as that term
is defined under the Ethics Law and - - hence you are subject to the
provisions of - that law:
Section 3(a) of the Ethics LalF provides:
Sectiqn 3. Restricted Activities.
§ectiori 2. Definitions.
(a) No puhlic official or public
employee shall 'engage ' conduct that
contt tutes s confIict 'of interest.
The following terms are defined in the Ethics Law as follows:
"gonf list or conflict of interest." Use
by a public official or pi lic employee of the
3uthorit t o€ his off ice or em�plbyment or any
confidential .nfonation r`eceir�T through his
holding tpbblic office ar emp10 eht for the .
private pecuniary bone f it o zm f h elf , a mb em
'
of his „ ed to : fanlg or a" bus ?3 *ss with
i atri a o r' a i einb r of his immea a family
s ss,cieted. "Con €iic or ` "eon iict of
irate . iest" does not include an ction `I1guiz}(
4e minimis e conoz .c 14413 Ft or 14)13:0. h V oece
the sane degree g class cpnsii f ing of the
general Oub'1ic or a subclass consisting of an
Mr. Terry Van Lear
August 10, 1992
Page 3
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.
"Business with which he is associated."
Any bu 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 Tmonetary -value and no public official /employee shall
solicit or accept anything of monetary dvalue based upon the
understanding that the vote, official action, or judgement of the
public official /employee would be influenced thereby. Reference is
made to thdse provisions of the l aw 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(f) of the Ethics Law provides:
Section 3. Restricted activities
(f) No. publie official or public
Mr. Terry Van Lear
August 10, 1992
Page 4
employee or his spouse or child or any
business in which the person or his spouse or
ghild 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 publ c process,
incaluding 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 contractor subcontract
made in violation of this, supsection.shaii be
voidable by a court of competent jurisdiction
if the suit is commenced within 90 days of the
making of the contract or suiieentract .
Parenthetically, where contracting is otherwise allowed or
where there appears to be no expresses 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 is otherwise appropriately
contracting with his own governmental 494y-in an amount $5Q0.0
or more. This open and public process would require:
or contracting
(1) prior ,notice of the 9
possibility;
• (2) sufficient time for a reasonable and prudent
competitor /applicant to be obis to prepare an4 present an
a - • ioati.oll .ar proposal;
M PBI � ,,... a
() 1 discigsure of • all applications q prgggsals
considered a.d;
(4) pgN-t e disc 1ss1}re of the cont411.9t- : a5f470ed ax4 offered and
aeeepted,
Section 3(f) of the guiles T al ; t so requires th the pmfil .s
o f € .�cial /e 1pyee may not h,ave s`ny sugis i§oy 9r' rveralJ.
respon$ib0.lity a.s to t he ?APlementatien or a+$mini ; ration of the
contract.
Mr. Terry Van Lear
August 10, 1992
Page 5
Section 3-(j) of the Ethics Law provides as follows:
Section 3... Restricted activities.
(j) :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
tcs =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.
=2f a conflict 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.
You.have ppsed.three narrow, specific inquiries, and this
Advice shall be limited to focusing uppn these three specific
inquiries. Your first specific inquiry pertains to the servioiug
of Muhlenberg School District vehicles by your company. As noted
above, pursuant to Section 3(a pf the Ethics.- La *, a public
official /public employee is prohibited from using the authority of
public office /employment or ,confidential inf o aa y ti�o n . received by
holding such a public position for the.private_$eFu Lary benefit of
Mr. Terry Van Lear
August 10, 1992
Page 6
the public of employee himself, any_ member of his
immediate family, or a business with which he or a member of his
immediate family is associated. The business which you serve as
Vice - President would " 'clear] be a business with which you are
associated:
You state that the decision as to - where School District
equipment is serviced is' not' ` a Board decision but is made by the
responsible person(s) of the - equipment . -Thus it would appear
under the facts which you have submitted that you would not
actually select ` busine ss(es) to service School District equipment.
Nevertheless, you would be restricted from using the authority of
your Office . in ofher' respec ts to obtain business for or otherwise
advance* tie private . pecuniary benefit of the business with which
you `associated, such as by a sting influence . as a School
Ditec•or to obtain such "business for yo,ur company. Furthermore, in
the event 'that your compan has a matter pending before the Board,
or if you ae part of yout,Offi4al duties must Parti review
or pass upon that matter; a conflict would exist. Miler, Opinion
89 Such matters would include, for example, the payment of
bills to your company. -I.ri each - instance of a conflict of interest
you would `be required to abstain from any participation of any
nature *whatsoever, and to meet the disclosure requirements of
Section 3(j) set .. forth' above.
Turning to the applicability of Section 3(f), that provision
by its terms would apply to contracts or , subcontracts valued at
$501, °or more between the business w rt"h which you are associated a;id
MuhlenIerg SoIio91° District or those who lave contracted r ith
Muhle ibe g SJI Pisxtidt, regardless _ of whether you had any
involvement - .h the utter Thus, ,fhr each such contract or
subcgntract, ''the restrictions of Section 3(f) must be fully
satibfied.
Parenthetically, although the contracting in gi}estion would
not be prohibited Under the gthics Law provided tkie requirements of
Sections 3(4), (f) , and (j) are satisfied, a probl m may exist as
to s 4ch ` c54tracting under the public $clioo1 Code.
14 the . 4- natant situation, the Public School Code provides in
pertinent paft as fflllows
*4 ti?t to be emplpVed by_ or 48 Y uginess
r'xdt s g *c pticii�
No school director shall, during the term
9r ,(s3. 1 if ' 0h to was elected or appo 4§
! Ptivate person euga e ' IA
any iu }
tran$a,ction *itlj the s cot district in rhich
he is eledted `or appeintet, be em loyed in any
Mr. Terry Van Lear
August 10, 1992
Page 7
capacity by the school district in which he is
elected or appointed, Or receive frbni such
School district any pay for services rendered
to the district except as provided in this
act. . .
24.P.S. 53 -324. Since such contracting may be prohibited by the
above quoted provision of the Public School Code, but not under the
Ethics Law, it is suggested that advice in that regard be sought
from legal counsel.
Your second specific inquiry appears to be a third party
request as to the , propriety of conduct by the contractor who
provides_ school bus transportation services to Muhlenberg School
District. The authority of the Ethics Commission to issue an
opinion /advice regarding a person's duties under the Ethics Law is
limited by statute, to those persons who request it relative to
their duties or t� the appointing authority of such persons or the
employer of such persons at the request of the appointing authority
or employer. Thus, an opinion /advice may not be issued in response
to an unauthorized request concerning the duties of a third party
under the Ethics Law. In any event, it would'appear that the
question which you have posed would be governed by the Ethics
Law and therefore would be beyond the jurisdiction of the State
Ethics Commission.
Turning :Ito your third and final inquiry, your question is
unclear even upon review of the example which you have provided.
Therefore, this advisory, shall only give a general response, by
noting that the conduct you are proposing would be governed by the
above response to your first specific inquiry.
The propriety of the proposed conduct has only been addressed
under the Ethics Law; the applicability-of any other statute, code,
ordinance, regulation or other code of conduct 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 School Code, although it has
been recommended that you seek advice from legal counsel in that
regard.
Conclusion: As a School Director for Muhlenberg School District in
Berks County, Pennsylvania, you are a public official subject to
the provisions of the Ethics Law. The business which you serve as
Vice- President is a business with which you are associated.
Pursuant to Section 3(a) of the Ethics Law, you may not use the
authority of your office or confidential information received by
holding your public position to obtain business for or otherwise
advance the private pecuniary benefit of the business with which
you are associated. In the event that the business with which you
Mr. Terry Van Lear
August 10, 1992
Page 8
are associated would have matters pending before the Board of the
Muhlenberg School District, then you would have a .conflict of
interest and could not participate in such matters, and you would
be required to satisfy the disclosure requirements of Section 3(j)
as set forth above. The restrictions of Section 3(f) set forth
above must be observed as tosany contract or subcontract valued at
$500 or more between the business with which you are associated and
Muhlenberg School District or those who have contracted with
: Muhlennberg School. District. Lastly, the propriety of the proposed
conduct has only been addressed under the Ethics Law. Due to the
possible application of the School Code in this matter, it is
suggested that advice be obtained from legal counsel in that
regard.
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 be in .writing and must be received at
the. Commission within 15 days of the date of this Advice pursuant
to 51 Pa. Code 52.12.
Vincent J. Dopko
Chief, .o..unsel