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Home My WebLink About89-009 SpataroMr. John F. Spataro Ferguson, Spataro & Rowden Attorneys and Counselors At Law 283 Walnut Street Meadville, PA 16335 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Helena G. Hughes, Chair W. Thomas Andrews G. Sieber Pancoast Dennis C. Harrington Michael J. Washo DATE DECIDED: Julv 28, 1989 DATE MAILED: Ativist R 1989 89 -009 t Re: Conflict, Public Official, School Director, Appointment As Solicitor, Resignation From School Board Dear Mr. Spataro: This Opinion is issued in response to your request of June 26, 1989. I. Issue: Whether a school board director under the Public Official and Employee Ethics Law may be appointed to the position of school district solicitor if at the time of such appointment he would resign from the school board. II. Factual Basis For Determination: You are presently on the School Board of Crawford Central School District with your term expiring in December, 1991. The position of Solicitor to the Crawford Central School District will become available on or about December, 1989. You are currently researching the issue as to whether you, as school director, may seek the ' solicitorship of the school district without violating Section 3-324 of the Public School Code. If you are selected for the position of solicitor, you indicate that you will tender your resignation from the school board. After citing Section 3 -324 of the School Code, you express your belief that part of the provisions of that law may be unconstitutional as it relates to an attorney who is a school director seeking the solicitorship in light of the holding in Pennsylvania PVC Sar..Asaociation_v. Thornburah, 62 Pa. Commwlth. 88, 434 A.2d 1327, Mr.•.John:F. Spataro Page 2 affirmed 498 Pa. 589,.458`A.2d 613 (1981). You = interpret' -the holding in that case to mean thatt the Court found the= one year restriction of the Ethics Law unconstitutional as it related' to the regulation of attorneys in the-practice of law which is-within the exclusive jurisdiction of the judiciary. Yhu then inquire' asjto whether the one year restriction - under the Ethics Lair °would preclude you from serving as solicitor, or - would impose -any restrictions upon you for the first year after you resigned as school director. III. Discussion: As a School Director for the Crawfbrd Central School - District, you are a public official as that term is' defined under the Public Official and Employee Ethics Law of June 26, 1989, At 9 1989. Accordingly, you are subject to the provisions of the Ethics Lawand the restrictions therein are applicable to-you. Section 3(a) of the Ethics L'aw 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-under - the Ethics Law: Section 2 Definitions. "Conflict or conflict` of interest." Use by a public official 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'min1mis economic- impact or which affects to the'-''same degree' a clast consisting of the-general public or - a <' subclass consisting of an-industry, : occupation ". or other group which;. includes the public of public employee, a,= member' or - hiss iiinmediate" family or a business with which 'he or' a member of his immediate famiily'Yis associated: Mr. John F. Spataro Page 3 "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. 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 or no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Finally, Section 3(g) of the Ethics Law provides: Section 3. Restricted activities. (g) No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. 5402. In applying the above provisions of the Ethics Law to the instant matter, Section 3(a) of the Ethics Act would restrict you from using the authority of office or confidential information to advance your candidacy for the position of solicitor. Thus, although Section 3(a) of the Ethics Law would not preclude you from being considered or even being appointed to the position of solicitor, you could not use the authority of your office as school director to advance your own candidacy or conversely attempt to influence other school district directors to vote against any competing candidates for the position. Thus, you must remove yourself from the review and consideration process and must not attempt to influence the other school board members in considering your candidacy or rejecting the candidacy of other competing applicants. The foregoing is not to suggest that you may not in an interview for this position present your credentials; however, as school director you must remove yourself from the review process as to the selection of the solicitor. Pursuant to the requirements of Section 3(j) of the Ethics Law, you must abstain from voting and publicly announce and disclose the nature of your conflict as a public record in a written memorandum filed with the person responsible for recording the minutes. You have also requested this Commission to determine whether you may accept the position of solicitor under Section 3 -324 of the Public School Code. That question may not be addressed by this Commission • since we do not have jurisdiction to interpret the Public School Code. Hr. John F. Spa►taro Page 4 Occasions May arise where this Commission may review some other law to the extent that it impacts upon the Ethics Law; however we do not have jurisdiction per se to interpret and apply other • statutes of the Commonwealth of Pennsylvania. Turning to your question concerning the applicability of Section 3(g) of the Ethics Law, it is noted that you intend to resign as a school director if you are selected as solicitor. At that point in time,. Section 3(g) of the Ethics Law would normally restrict you far a period of one year from representing a person before your governmental body. However, in this instance you would be serving as sbLtcitor and thereby acting as an attorney for that, governmental body in providing legal services Thus, we are not now confronted with a situation where you would be representing a person before your former governmental body. In fact, in this situation you would actually be representing that same body. As such, we do not believe that the aforecited judicial decision has any applicability herein. Finally, we must note that if you are selected as solicitor, you would then be subject to the provisions of the Ethics: Law and in. addition, you must file a Statement of Financial Interests as required by Section 4(a) of the Ethics Law. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordina 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. IV. Conclusion: As a School Director for the Crawford Central. School District, you are a public official subject to the provisions of the Ether Law. Under Section 3(a) of the Ethics Law,: you would not be precluded from consideration for the position of school district solicitor provided you do not. use the authority of your office to advance your own candidacy or conversely attempt to eliminate any competitors far the position. Section 30) of the Ethics Law would require you to abstain from voting and you must publicly announce and disclose the nature of your conflict as a public record in a written memorandum" filed with the person responsible for recording the minutes. Section 33(g) of the Ethics Law would not be applicable in the instant situation because you as solicitor would be representing the school board as its attorney rather than representing a matter before that governmental body. Additionally, as solicitor, you would be subject to the provisions of the Ethics Law and you must file the Statement of Financial Interests as required by Section 4(a) of the Ethics Law. Mr. John F. Spataro Page 5 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(9)(i), this Opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the evidence of the = advice given. This letter is a public record and will be made available as such. Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By t - Commission elena G. Hughes Chair