Loading...
HomeMy WebLinkAbout02-608 FlickingerAnthony J. Flickinger 255 Brown's Dam Road New Oxford, PA 17350 ADVICE OF COUNSEL October 17, 2002 02 -608 Re: Simultaneous Service; School Director and School District Employee; Conflict; Public Official /Public Employee; Volunteer. Dear Mr. Flickinger: This responds to your letter of September 16, 2002, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 1a. =S. §1101 et seq., presents any prohibition or restrictions upon a school director with regard to performing volunteer work or accepting employment on a coaching staff within the school district. Facts: You are a School Director for the Bermudian Springs School District ( "School District ") in York Springs, Pennsylvania. You pose three inquiries relative to your position as a School Director. You state that the varsity soccer coaches in the School District have asked you to assist them as a volunteer in the soccer program. Given that you have coached many of the coaches' players outside of school in various recreation leagues in the area, the coaches feel that your experience could be an asset to them. You would assist at practices by setting up cones, retrieving balls, providing instruction on skills, and performing other similar tasks. You state that during games, you record the games statistics. You further state that you are not involved in choosing starting players, playing time, equipment purchases, or budgets. In addition, you state that you are not compensated for your time. Your first question is whether under the Ethics Act, you may volunteer in the soccer program or volunteer in any other capacity, such as a playground aid, classroom reader, field trip chaperone or guest speaker. Your second question is whether you or a member of your family may accept a paid position on any coaching staff if you would abstain from voting to hire, set pay, or approve budgets related to such a position. Flickinger 02 -608 October 17, 2002 Page 2 Your third question relates to another school director who chooses to educate her children at home, rather than to have them attend the schools in the School District. You acknowledge that the school director is within her rights as a parent to teach her children at home. However, you ask whether the school director may use her public position to propose or to vote on policies or issues relating to home school education, or a child's participation in extra curricular activities, when her children would directly benefit from her favorable vote. You further ask whether you or another board member or resident of the School District would have grounds to file a complaint with the State Ethics Commission against the School Director for voting on such matters. Discussion: It is initially noted that pursuant to Sections 1107(10) and (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. It is further initially noted that, pursuant to Sections 1107(10) and (11) of the Ethics Act, 65 Pa.C.S. §1107(10), (11), an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice, but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct which has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may and shall be addressed. As a School Director for the Bermudian Springs School District ( "School District "), you are a public official as that term is defined under the Ethics Act, and hence you are subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides: §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: §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 Flickinger 02 -608 October 17, 2002 Page 3 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. 65 Pa.C.S. §1102. Section 1103(j) of the Ethics Act provides as follows: §1103. Restricted activities (j) Voting conflict. - -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 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. 65 Pa.C.S. §1103(j). In applying the above provisions of the Ethics Act to your inquiry, it is noted that Section 1103(a) of the Ethics Act pertaining to conflicts of interest does not prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may not use the authority of his public position - -or confidential information obtained by being in that position- -for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited under Section 1103(a) would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order 1037; (2) the use of governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official /public employee is associated in his private capacity, Gorman, Order 1041, or private client(s). Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010. Flickinger 02 -608 October 17, 2002 Page 4 In response to your first specific inquiry, based upon the facts you have submitted, there would not appear to be any conflict of interest under Section 1103(a) of the Ethics Act as to your volunteering in the soccer program or volunteering in any other capacity, such as a playground aid, classroom reader, field trip chaperone or guest speaker within the School District as you would not be using the authority of your public office as a School Director or confidential information for the private pecuniary benefit of yourself, a member of your immediate family, or a business with which you or a member of your immediate family is associated. In particular, since you would be volunteering, you would not receive any financial gain, without which, there would be no conflict under Section 1103(a) of the Ethics Act. See, McGuire and Marchitello v. State Ethics Commission, 657 A.2d 1346 (1995). In response to your second specific inquiry, to the extent your inquiry relates to the propriety of conduct by your family members who may wish to apply for or accept a paid position with the School District, you are advised that the authority of the State Ethics Commission to issue an opinion /advice regarding a person's duties under the Ethics Act is limited by statute, to those persons who request it relative to their duties or to the appointing authority or 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 third parties under the Ethics Act. However, to the extent your inquiry relates to your own conduct, it is initially noted that the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa. Const. Art. 6, §2. Although the State Ethics Commission does not have the express statutory jurisdiction to interpret such other laws, it may review the Ethics Act to determine that a conflict exists based upon the statutory incompatibility. King, Opinion No. 85 -025. A conflict of interest exists under the Ethics Act where a pecuniary benefit or financial gain (such as salary, benefits, and the like) is derived as a result of holding incompatible positions simultaneously. The Commission has determined that if a particular statutory enactment prohibits an official from receiving a particular pecuniary benefit or financial gain, then that official's receipt of same, through the authority of public office, is unauthorized in law and hence, contrary to Section 1103(a) of the Ethics Act. In this case, in order to determine whether a particular pecuniary benefit or financial gain is prohibited by law, the provisions of the Public School Code of 1949 as amended ( "Public School Code ") must be reviewed: 3 -324. Not to be employed by or do business with district; exceptions (a) No school director shall, during the term for which he was elected or appointed, as a private person engaged in any business transaction with the school district in which he is elected or appointed, be employed in any capacity by the school district in which he is elected or appointed, or receive from such school district any pay for services rendered to the district except as provided in this act.... 24 P.S. § 3 -324. The above appears to forbid simultaneous service in the positions in question. Any financial gain or pecuniary benefit that the public official /public employee would receive while simultaneously holding these positions would be a gain other than compensation provided for by law. Kinq, Opinion 85 -025. Therefore, simultaneous Flickinger 02 -608 October 17, 2002 Page 5 service in the positions of School Director and School District employee would be contrary to Section 1103(a) of the Ethics Act to the extent a pecuniary benefit or financial gain would be received that would be unauthorized based upon the foregoing incompatibility provision. In response to your third specific inquiry relating to the propriety of conduct of another school director, such inquiry appears to be a third party request, which cannot be addressed in an advisory for the reasons set forth above. In addition, if the activity in question has already occurred, as noted above, the Commission may not issue an opinion /advice, but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. Be further advised that a complainant who: files a frivolous complaint (a complaint filed in a grossly negligent manner without basis in law or fact); files a complaint without probable cause and primarily for a purpose other than that of reporting a violation of the Ethics Act; or publicly discloses that a complaint against a person has been filed with the Commission, commits a "wrongful use" of the Ethics Act and may be civilly liable to the subject of the complaint. 65 Pa.C.S. Section 1110. There are also criminal penalties for breaching the confidentiality of a matter before the Commission. 65 Pa.C.S. Section 1109(e). This Advice is limited to addressing the applicability of Section 1103(a) of the Ethics Act. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public employee would be influenced thereby. Reference is made to 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. 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 a School Director for the Bermudian Springs School District ( "School District'), you are a public official subject to the provisions of the Ethics Act. Based upon the facts you have submitted, there would not appear to be any conflict of interest under Section 1103(a) of the Ethics Act as to your volunteering, without any financial gain, in the soccer program or volunteering in any other capacity, such as a playground aid, classroom reader, field trip chaperone or guest speaker within the School District as ou would not be using the authority of your public office as a School Director or confidential information for the private pecuniary benefit of yourself, a member of your immediate family, or a business with which you or a member of your immediate family is associated. You may not, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of School Director and School District employee. 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. Flickinger 02 -608 October 17, 2002 Page 6 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 ). TThe 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. Sincerely, Vincent J. Dopko Chief Counsel