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HomeMy WebLinkAbout24-554 Gelsinger PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL August 9, 2024 To the Requester: Keith Gelsinger 24-554 Dear Mr. Gelsinger: This responds to your letter received July 30, 2024, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issue presented below: Issue: Whether the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an individual who owns and operates a gym, who also serves as a school director for a school district, with regard to providing a training program to approximately fifteen middle school students of the school district, where: (1) the school district would transport the students to the gym at no additional cost to the school district; (2) the gym would provide training to the students for approximately one and a half hours, one day per week, for six to nine weeks; (3) the school district would provide teachers to chaperone the students; (4) parents of the students would be charged a fee that would allow the gym to cover costs associated with the training program and make a small profit margin; and (5) the students would be picked up by their parents or other appropriate adults at the end of the training day. Brief Answer: NO. The Ethics Act would not prohibit the individual, in his capacity as the owner of the gym, from providing the training program to middle school students of the school district under the aforesaid circumstances. However, the individual, in his capacity as a school director, generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the school district school board that would financially impact him or the gym, including matters volvement with the training program such as, for example, any approval, facilitation, or oversight of the training program by the school district. Gelsinger, 24-554 August 9, 2024 Page 2 Facts: You request an advisory from the Commission based upon the following submitted facts. You are located in Hanover, Pennsylvania. In a private capacity, you are the owner and operator of a gym evision show American Ninja Warrior. The Gym has approximately five to seven employees and is fully insured. A School District teacher approached you about getting School District students involved in more athletic programs outside of the School District for an opportunity to explore sports that might not be offered by the School District. for School District middle school students has been proposed. The Training Program would initially be for approximately fifteen students with the potential to include more students at a later time. Attending the Training Program would be strictly voluntary and would require parental permission. The School District would transport the students to the Gym, which is located in the School District, instead of to their homes on the days chosen for the Training Program. There would be no additional cost to the School District for transporting the students to the Gym. The Gym would provide training to the students for approximately one and one half hours, one day per week, for six to nine weeks, and more training time might be added as the Training Program progresses. The parents of the students would be charged a fee that would allow the Gym to cover costs associated with the Training Program and make a small profit margin. The School District would provide teachers to chaperone the students and to ensure that the students are picked by their parents or other appropriate adults at the end of day. The Training Program would be similar to a program that the School District conducts with a local bowling alley. In that program, the School District transports students to the bowling alley and provides teachers as chaperones to ensure that all students are picked up at the end of the day. You state that these types of programs normally do not get voted on by the School District School Board. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you in relation to the provision of the Training Program to School District students. Discussion: 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 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 material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all material facts. Gelsinger, 24-554 August 9, 2024 Page 3 Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest. -- No public official or public employee shall engage in conduct that constitutes a conflict of interest. (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(a), 1103(j). 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 Gelsinger, 24-554 August 9, 2024 Page 4 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. 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. 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes restrictions upon public officials and public employees, and not their immediate family members or businesses. ,/public employee is prohibited from using the authority of public office or confidential information received by holding such a public position for the private pecuniary (financial) 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. 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/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a School Director for the School District, you are a public official subject to the provisions of the Ethics Act. The Gym is a business with which you are associated in your capacity as its owner. As a School Director for the School District, you generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact you or the Gym. Gelsinger, 24-554 August 9, 2024 Page 5 The Ethics Act would not prohibit you, in your capacity as the owner of the Gym, from providing the Training Program to School District students under the circumstances set forth in the submitted facts. However, in your capacity as a School Director for the School District, you generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the School District School Board that would financially impact you or the Gym, including nvolvement with the Training Program such as, for example, any approval, facilitation, or oversight of the Training Program by the School District. In each instance of a conflict of interest, you would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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. 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. Respectfully, Bridget K. Guilfoyle Chief Counsel