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HomeMy WebLinkAbout03-522 SturmThomas J. Sturm 1739 Lynch Drive North Huntingdon, PA 15642 Dear Mr. Sturm: ADVICE OF COUNSEL March 7, 2003 03 -522 Re: Conflict; Public Official /Employee; Former Public Official; Section 1103(a); Section 1103(g); School Director; Principal; School District. This responds to your letter of February 3, 2003, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., presents any prohibition or restrictions upon school director as to resigning prior to the expiration of his term and accepting employment as a principal for the school district. Facts: You are a School Director for the Norwin School District ( "School District "). oouu are also a certified teacher and school administrator, and serve as a school principal in another school district. You state that as the School Board prepares to formulate staffing plans for the 2003 -2004 school ear, you can foresee the need for new administrative personnel with the changes in administrative alignment and administrative retirements. Based upon your past work experience, you feel qualified to apply for one of the anticipated vacancies, specifically the position of building level principal for the School District. You state that you are aware that as a School Director, you would be prevented from debating candidates' qualifications relative to your own. You further state your understanding that you may not vote for yourself. You ask whether you may be employed by the School District as a building level principal if you would resign as School Director prior to the expiration of your term. 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 requestor based upon the facts which the requestor has submitted. In issuing the advisory based Sturm 03 -522 March 7, 2003 Page 2 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. As a School Director for the Norwin School District ( "School District "), you are a public official as that term is defined in 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 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. In addition, Sections 1103(b) and 1103(c) of the Ethics Act 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, official action, or judgment of the public official /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. Section 1103(j) of the Ethics Act provides as follows: § 1103. Restricted activities Sturm 03 -522 March 7, 2003 Page 3 (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 each instance of a conflict, Section 1103(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 the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Act to the instant matter, pursuant to Section 1103(a) of the Ethics Act, 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 which he or a member of his immediate family is associated. Having set forth the above provisions of the Ethics Act, your inquiry will now be addressed, noting that this advice will be limited to the single question you have posed. The State Ethics Commission, in the exercise of its jurisdiction, is limited to making determinations under the Ethics Act. It is beyond the scope of the Ethics Act and the function of the State Ethics Commission to make determinations as to other state laws, regulations or Constitutions. However, in issuing advisories under the Ethics Act, it is necessary at times to review other laws to determine whether a given benefit would be authorized, so that it may be determined whether a public official /public employee would be receiving a private pecuniary benefit contrary to the Ethics Act. In the instant matter, it is administratively noted that Section 3-324(a) of the Public School Code of 1949 as amended ( "Public School Code "), provides as follows: Sturm 03 -522 March 7, 2003 Page 4 § 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: Provided, That one who has served as a school director for two consecutive terms, of six years each, may be elected to the position of attorney or solicitor for the board of which he was a member by the unanimous vote of all the other members of the board, and, after resigning his office as school director, shall be entitled to receive such pay for his services as solicitor as the board of school directors may determine: Provided, however, That a school director may be appointed to the position of secretary to the board of a school district of the second class, of which he was a member during the term for which he was elected or appointed upon the unanimous consent of all the other members of the board after resigning his office as school director, and he shall be entitled to receive such pay for his services as secretary as the board of school directors shall determine: And provided further, That one who has served as a school director may, after resigning from office as a school director, be elected to the position of teacher by the board of which he was a member by a vote of at least two - thirds of all other members of the board and shall be entitled to receive such pay for his services as a teacher as the board of school directors may lawfully determine. 24 P.S. § 3- 324(a). As to whether you may be employed by the School District as a building level principal if you would resign as School Director prior to the expiration of your term, subparagraph (a) on its face clearly prohibits a school director, during the term for which he was elected or appointed, from being employed in any capacity by the school district in which he is elected or appointed, or receiving compensation from such school district for services rendered to the district except under certain limited instances which are inapplicable. 24 P.S. § 3- 324(a). Thus, if you would resign as School Director prior to the expiration of your term to accept employment with the School District as a principal, you would be using the authority of your public office for a private pecuniary benefit in contravention of Section 1103(a) of the Ethics Act. See, Paucke, Opinion 02 -002. In Paucke, supra, the Commission specifically noted that if a public official /public employee receives compensation that is not authorized in law, the receipt of that compensation through public office is a private pecuniary benefit in contravention of the Ethics Act. In this case, the receipt of the salary of a principal prior to the expiration of a school director's term when the Public School Code prohibits such employment would constitute a use of authority of office for a private pecuniary benefit in contravention of Section 1103(a) of the Ethics Act. 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. Sturm 03 -522 March 7, 2003 Page 5 Conclusion: As a School Director for the Norwin School District ( "School is ric , you are a public official subject to the rovisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 11 et seq. In determining your question as to whether you may be employed by the School District as a building level principal if you would resign as School Director prior to the expiration of your term, it is necessary to review other laws to determine whether a given benefit would be authorized, so that it may be determined whether a public official /public employee would be receiving a private pecuniary benefit contrary to the Ethics Act. Section 3- 324(a) of the Public School Code of 1949 as amended ( "Public School Code ") on its face clearly prohibits a school director, during the term for which he was elected or appointed, from being employed in any capacity by the school district in which he is elected or appointed, or receiving compensation from such school district for services rendered to the district except under certain limited instances which are inapplicable. Thus, if you would resign as School Director prior to the expiration of your term to accept employment with the School District as a principal, you could not be so employed because you would be using the authority of your public office for a private pecuniary benefit in contravention of Section 1103(a) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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. 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. Sincerely, Vincent J. Dopko Chief Counsel