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STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
FACSIMILE: 717-787-0806
WEBSITE: www.ethics.pa.gov
ADVICE OF COUNSEL
December 13, 2021
To the Requester:
Department of Education
Office of Chief Counsel
Mr. Sean A. Fields
Assistant Counsel
333 Market Street
9th Floor
Harrisburg, PA 17126-0333
Dear Attorney Fields:
21-563
This responds to your correspondence dated November 5, 2021 (received November 12,
2021), by which you requested an Advice of Counsel from the Pennsylvania State Ethics
Commission ("Commission").
Issue:
Is a Member of the State Charter Appeal Board prohibited from taking action pursuant the
Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 etseq., on a�
matters before the State Charter Appeal Board involving the City of Philadelphia School
District, when the Member is also an employee of a management entity which manages
charter schools within the City of Philadelphia School District?
Brief Answer: NO. The Member would not be required to abstain/recuse from all
matters involving the City of Philadelphia School District. The Member would be required
to abstain/remove/recuse themselves in those matters which involve their employer (the
management entity) or a client of their employer or in any other matter where the Member
is consciously aware that their participation would advance a pecuniary benefit for
themself, a member of their immediate family, their employer or any other business with
which they or an immediate family member is associated.
Fields/Faustman. 21-563
December 13, 2021
Page 2
Facts:
As counsel for the State Charter Appeal Board ("Charter Appeal Board" or "CAB"), you
have been authorized by Jennifer Faustman, Charter Appeal Board Member, to request an Advice
of Counsel regarding whether her participation (including voting) in cases involving the School
District of Philadelphia (School District) would constitute a conflict of interest under the Public
Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. §1101 etseq.
The Charter Appeal Board consists of individuals appointed by the Governor and with the
consent of the majority of the Pennsylvania Senate. Pursuant to Section 1721-A, of the
Pennsylvania School Code, 24 P.S. §17-1721-A, CAB Members receive no payment for their
services and review appeals regarding the decisions of local school boards under the Charter
School Law. The CAB has the exclusive authority to review a decision by a local school board
denying a charter application and decisions whether to renew or revoke a charter. The CAB also
reviews decisions by the Pennsylvania Department of Education denying a cyber charter
application and decisions regarding renewing or revoking a cyber charter.
Section 1721-A of the School Code requires the members of the CAB to include: 1.) A
parent of a school -aged child; 2.) A school board member; 3.) A certified teacher actively
employed in a public school system; 4.) A faculty member or administrative employee of an
institution of higher education; 5.) A member of the business community; and 6.) A member of
the State Board of Education. 24 P.S. 17-1721-A. Ms. Faustman was appointed to the Charter
Appeal Board by Governor Wolf on June 25, 2021, to fill the seat of the parent of a school -aged
child.
In addition to serving as a Member of the CAB, Ms. Faustman is employed as the Chief
Executive Officer of the Belmont Charter Network, an entity that manages charter schools within
the network. The Belmont Charter Network includes Belmont Academy Charter School (Pre-K—
Kindergarten), Inquiry Charter (Pre-K— Grade 5), Belmont Charter Elementary School (Grades 1-
5), Belmont Charter Middle School (Grades 6-8), and Belmont Charter High School (Grades 9-
12). Due to the location of these schools, the City of Philadelphia School District was responsible
for the initial decision whether to grant charters for these schools and is also responsible for future
decisions regarding the renewal or termination of these charters consistent with Section 1729-A of
the Charter School Law, 24 P.S. 17-1729-A.
The City of Philadelphia School District asserts that Ms. Faustman must recuse herself
from any proceedings involving the School District as a party before the CAB in as much as her
participation may constitute a conflict of interest pursuant the Ethics Act. Ms. Faustman has
indicated that she understands that if a matter comes before the CAB involving one of the charter
schools within the Belmont Charter Network, she may be required to abstain from voting under
the Ethics Act.
Discussion:
It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65
Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the
Fields/Faustman. 21-563
December 13, 2021
Page 3
requester has submitted. In issuing the advisory based upon the facts that the requester has
submitted, the Commission does not engage in an independent investigation of the facts, nor does
it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully
disclose all of the material facts relevantto the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory
only affords a defense to the extent the requester has truthfully disclosed all of the material facts.
As a Member of the Charter Appeal Board, Ms. Jennifer Faustman is a "public official" as
that term is defined by 65 Pa.C.S. §1102 and is therefore subject to the provisions of the Ethics
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 related to Section 1103(a) 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
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." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association, organization,
self-employed individual, holding company, joint stock company,
receivership, trust or any legal entity organized for profit.
Fields/Faustman. 21-563
December 13, 2021
Page 4
"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.
"Financial interest." Any financial interest in a legal entity
engaged in business for profit which comprises more than 5% of the
equity of the business or more than 5% of the assets of the economic
interest in indebtedness.
"Immediate family." A parent, spouse, child, brother or
sister.
65 Pa.C.S. § 1102.
Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or
"conflict of interest," 65 Pa.C. S. § 1102, a public official is prohibited from using the authority of
public office or confidential information received by holding such a public position for the private
pecuniary benefit of the public official themself, any member of their immediate family, or a
business with which they or a member of their immediate family are associated.
The use of authority of office is not limited merely to voting but extends to any use of
authority of office including, but not limited to, discussing, conferring with others, and lobbying
for a particular result. Juliante, Order 809. In each instance of a conflict of interest, a public
official would be required to abstain from participation, which would include voting, unless one
of the statutory exceptions of Section 11030) of the Ethics Act would be applicable.
Per the Pennsylvania Supreme Court's decision in Kistler v. State Ethics Commission, 610
Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the Ethics Act, apublic official:
... must act in such a way as to put his [office/public position] to the
purpose of obtaining for himself a private pecuniary benefit. Such
directed action implies awareness on the part of the [public
official/public employee] of the potential pecuniary benefit as well
as the motivation to obtain that benefit for himself.
Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics Act, a
public official "must be consciously aware of a private pecuniary benefit for himself, his family,
or his business, and then must take action in the form of one or more specific steps to attain that
benefit." Id., 610 Pa. at 528, 22 A.3d at 231.
A conflict of interest would not exist to the extent the "de minimis exclusion" and/or the
"class/subclass exclusion" set forth within the Ethics Act's definition of the term "conflict" or
"conflict of interest," 65 Pa.C.S. § 1102, would be applicable.
The de minimis exclusion precludes a finding of conflict of interest as to an action having
a de minimis (insignificant) economic impact. Thus, when a matter that would otherwise
Fields/Faustman. 21-563
December 13, 2021
Page 5
constitute a conflict of interest under the Ethics Act would have an insignificant economic impact,
a conflict would not exist, and Section 1103(a) of the Ethics Act would not be implicated. See,
Kolb, Order 1322; Schweinsburg, Order 900.
In order for the class/subclass exclusion to apply, two criteria must be met: (1) the affected
public official, immediate family member, or business with which the public official or immediate
family member is associated must be a member of a class consisting of the general public or a true
subclass consisting of more than one member; and (2) the public official, immediate family
member, or business with which the public official or immediate family member is associated must
be affected "to the same degree" (in no way differently) than the other members of the
class/subclass. 65 Pa.C.S. § 1102; see, Kablack, Opinion 02-003; Rubenstein, Opinion 01-007.
The first criterion of the exclusion is satisfied where the members of the proposed subclass are
similarly situated as the result of relevant shared characteristics. The second criterion of the
exclusion is satisfied where the individual/business in question and the other members of the
class/subclass are reasonably affected to the same degree by the proposed action. Kablack, supra.
In applying the above provisions of the Ethics Act to the instant matter, you are advised as
follows:
As a Member of the State Charter Appeal Board, Ms. Jennifer Faustman is a Public Official
as that term is defined by the Ethics Act, 65 Pa.C.S.§1101 et seq. Additionally, as the Chief
Executive Officer of the Belmont Charter Network, that entity (Belmont Charter Network) is a
business with which she is associated for purposes of applying the Ethics Act. As a Public Official
Ms. Faustman is restricted from utilizing the authority of her public office for the pecuniary
(financial) benefit of herself, a member of her immediate family, or a business with which she or
a member of her immediate family is associated. As such, she is prohibited from participating in
actions of the State Charter Appeal Board which would result in a financial benefit to herself, her
employer — Belmont Charter Network, or any of the schools managed by the Belmont Charter
Network.
In the event a matter involving the Belmont Charter Network or a school managed by
Belmont Charter Network, would be before the State Charter Appeal Board, Ms. Faustman would
be required to abstain/remove/recuse herself in those matters as well as in any other matter where
she would be consciously aware that her participation as a Charter Appeal Board Member would
advance a pecuniary benefit in violation of the Ethics Act.
Pursuant the submitted facts, Ms. Faustman would not per se have a conflict of interest (as
delineated by Section 1103(a) of the Ethics Act) with regard to participating in matters before the
State Charter Appeal Board involving the City of Philadelphia School Board. The submitted facts
do not indicate whether any action/use of office Ms. Faustman may engage in would automatically
result in a financial impact on her, a member of her immediate family, or a business with which
she/family is associated.
Therefore, you are generally advised that Ms. Faustman does not have a conflict of interest
pursuant Section 1103(a) of the Ethics Act with regard to participating in official actions of the
State Charter Appeal Board unless: (1) she would be consciously aware of a private pecuniary
Fields/Faustman. 21-563
December 13, 2021
Page 6
benefit to herself, a member of her immediate family, or a business with which she or a member
of her immediate family is associated; (2) her action(s) would constitute one or more specific steps
to attain that benefit; and (3) neither the de minimis exclusion nor the class/subclass exclusion to
the definition of "conflict" or "conflict of interest" as set forth in the Ethics Act, 65 Pa.C.S. § 1102,
would be applicable.
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 Member of the State Charter Appeal Board, Ms. Jennifer Faustman is a Public Official
as that term is defined by the Ethics Act, 65 Pa.C.S.§1101 et seq. Additionally, as the Chief
Executive Officer of the Belmont Charter Network, that entity (Belmont Charter Network) is a
business with which she is associated for purposes of applying the Ethics Act.
Ms. Faustman would not per se have a conflict of interest (as delineated by Section 1103(a)
of the Ethics Act) with regard to participating in matters before the State Charter Appeal Board
involving the City of Philadelphia School Board. The submitted facts do not indicate whether any
action/use of office Ms. Faustman may engage in would automatically result in a financial impact
on her, a member of her immediate family, or a business with which she/family is associated.
Pursuant to Section 1107(11) of the Ethics Act, 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 requester has disclosed truthfully all the material
facts and committed the acts complained of in reliance on the Advice given.
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). The 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.
Respectfully,
rian D. Ja
Chief Coun