HomeMy WebLinkAbout04-571 ConfidentialADVICE OF COUNSEL
July 20, 2004
04 -571
Re: Conflict; Public Official /Employee; School District; C; Immediate Family; Spouse;
Contract; G.
This responds to your letter of [date], by which you requested confidential 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 district
employee with respect to contracting between the school district and a business with
which the school district employee's spouse is associated.
Facts: As Solicitor for the A School District, you have been authorized to seek a
cadential advice on behalf of the School District and B, a School District employee.
You have submitted facts, the pertinent portions of which may be fairly summarized as
follows.
In [month and year], the Board of School Directors ( "Board ") appointed B to the
position of C. As C, B's responsibilities include planning, organizing, coordinating,
evaluating, and directing all aspects relating to the business affairs of the School
District. B reports directly to the Superintendent and has the responsibility for keeping
the Superintendent properly informed of all aspects relating to the business affairs of the
School District. You have submitted a copy of B's job description, which is incorporated
herein by reference.
B's spouse, D, is employed as an E for F. In or about [month and year], the
School District entered into an exclusive five -year G lease with F whereby F supplied
Gs sufficient to meet the H needs for all district facilities throughout the School District.
During this period, B was employed by the School District as the I, while D was
employed by F as a J.
You state that as the I, B was indirectly involved with the implementation of the G
contract, to the extent that he had supervisory authority over the K who in turn oversaw
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Page 2
the installation of wiring required to connect the Gs throughout the School District to the
computer network and for loading print drivers on network computers throughout the
School District. However, as the I, B did not exercise any direct supervisory or any
overall responsibility for the implementation or administration of the contract with F.
Rather, supervisory and overall responsibility for the implementation and administration
of the contract fell squarely upon the L, who reported directly to the Superintendent.
The L was responsible for monitoring F's compliance with the terms and conditions of
the lease agreement, monitoring performance, scheduling service calls, accepting
delivery of Gs, negotiating contract addenda and scheduling regular lease payments.
You further state that as a J, D had no responsibility for or involvement with F's
business relationship with the School District.
The multi -year lease agreement with F expired on [date], soon after B was
appointed to the new position of C. Thereafter, in [month and year], the School District
solicited and received proposals from interested bidders. However, due to procedural
problems, the Board voted to reject all bids and proposals. Further, questions arose
relating to whether B would run afoul of Section 1103(f) if he would have direct
responsibility as to the implementation and administration of a contract between the
School District and F. Pending resolution of these issues by the School District, F
agreed to extend the original lease through [date], in order to ensure that the School
District would have G service through the remainder of the [year] academic year.
The School District is now in the process of soliciting proposals from qualified G
vendors for the purpose of supplying equipment and services required to fulfill the
school district's H needs. The School District requires [number] Gs to be distributed
among the various buildings throughout the School District for use by teachers and
administrators. In addition to the [number] Gs, the vendor would be expected to set up
and staff an M for larger, more sophisticated Ns. You state that it is anticipated that the
total monthly average Os throughout the district will exceed [number] Os per month,
including in excess of [number] Os per month at the M staffed by the vendor. You
further state that the successful vendor would be required to meet certain performance
standards and to provide certain specialized services. You have submitted a copy of
the School District s G proposal specifications setting forth the scope, specifications and
performance standards of the proposed multi -year G lease program, which document is
incorporated herein by reference.
After quoting Section 8-807.1(a) and referencing Section 8-807.1(b) of the Public
School Code of 1949, as amended, (relating to the purchase of supplies), you state that
the School District is not necessarily required to comply with the competitive bidding
requirements set forth in Section 8 -807.1 with respect to the proposed G vendor
contract to the extent such contract is a service agreement and not a traditional lease
agreement. However, you note your understanding that the issue of whether the School
District is required in this instance to comply with the competitive bidding requirements
set forth in Section 807.1 of the Public School Code is beyond the jurisdiction of the
State Ethics Commission. You further note that you have provided this information for
background purposes only as it applies to the "open and public" contracting process
required by Section 1103(f) of the Ethics Act.
You state that if the School District elects to forego the competitive bidding
procedure set forth in Section 8 -807.1 of the Public School Code, the School District will
instead solicit proposals from G vendors by publishing a request for proposal ("RFP")
which will incorporate the School District's G proposal specifications. You state that the
RFP process will be conducted in such a manner so as to comply with the "open and
public" contracting requirement set forth in Section 1103(f) of the Ethics Act. The
School District will provide prior public notice of the RFP by publishing in a newspaper
of general circulation an advertisement announcing that the School District is requesting
proposals for the G services and directing interested vendors to contact the School
District for a copy of the G proposal specifications. In addition, the School District will
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July 20, 2004
Page 3
send its RFP and G proposal specifications to the following vendors which have
previously expressed interest in participating in the proposal process: P and F. After
the vendors have submitted their proposals, the School District administration will
review the proposals with respect to compliance with the specifications and prepare a
cost analysis of each proposal. The proposal will then be presented at a public meeting
of the School District and the contract will be awarded by a public vote at that time.
You state that in the alternative, the School District may purchase or lease its Gs
through the PEPPM Program, a program that was initiated by the Central Susquehanna
Intermediate Unit ( "CSIU ") to assist Pennsylvania school districts in purchasing
technology - related equipment. You state that the PEPPM Program was developed
pursuant to Section 521 of the Public School Code, 24 P.S. § 5 -521, which allows each
board of school directors to enter into agreements with other political subdivisions for the
purpose of, inter alia, performing governmental powers, duties, and functions. In the
instant case, the PEPPM Program was developed to create a conduit by which CSIU
could assist public school districts in complying with the competitive bidding requirements
set forth in Section 807.1 of the Public School Code, 24 P.S. § 8- 807.1, for the purchase
of technology - related equipment. Participating public school districts may be able to
realize savings by benefiting from lower prices because of a greater volume of sales.
Under the PEPPM Program, bids are solicited from vendors for the purchase or
lease of various types of technology - related equipment. PEPPM solicits bids for specific
product lines and equipment. Once the bids are evaluated, PEPPM awards the contract
to the lowest responsible bidder. The contract is then published to all public school
districts, which may then elect to purchase technology - related equipment through that
contract in compliance with the competitive bidding requirements set forth in Section
807.1 of the Public School Code. You state that in the absence of any statutory
constraints under the Ethics Act which might apply, the School District could decide upon
a specific G manufacturer and modeF which it could purchase through PEPPM.
However, the contract for the M would have to be awarded through an RFP or
competitive bidding process, since that contract requires the vendor to staff the M, and
such service contracts are not offered through PEPPM. You have submitted a copy of
the The Buyer's Guide to PEPPM, which document is incorporated herein by reference.
You indicate that a potential conflict of interest may exist given that D is an E for
F. As an E, D supervises the Q who has primary responsibility for F's business
relationship with the School District. However, you state that D's supervisor has
represented to the School District that she will receive no compensation from F in the
event that the School District renews its current contract with F. You have submitted a
copy of F's letter dated [date] containing this representation, which letter is incorporated
herein by reference.
You note that even if D would not realize a personal financial gain, the award of
the contract to F could result in a private pecuniary benefit to a business with which she
is associated. You further note that Section 1103(f) of the Ethics Act would be
implicated to the extent that if the School District were to award a contract to F, the
contract would have to be awarded through an open and public process, and B could
not have any supervisory or overall responsibility as to the implementation or
administration of the contract.
Based upon the foregoing facts, you pose the following specific inquiries with
accompanying commentary, the relevant portions of which commentary may be
summarized as follows:
1. Given that the Superintendent maintains ultimate responsibility for the
business affairs of the school district, may B be involved with the implementation
and administration of the multi -year G vendor contract, if the contract is awarded
to F?
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Page 4
You state that as the C, B has the responsibility of coordinating and directing the
business affairs of the School District. Under normal circumstances, B would be
involved with the implementation and administration of the multi -year G vendor contract.
Nonetheless, B is directly responsible to the Superintendent, who in turn ultimately is
responsible to the Board for the business affairs of the School District. You state that
arguably, B would exercise limited, if any, autonomy over the day -to -day administration
of the contract. To the extent B is responsible to the Superintendent, any controversies
arising under the implementation or administration would require oversight approval by
the Superintendent. Thus, arguendo, B technically would not have supervisory or
overall responsibility for the implementation or administration of the contract.
2. If the contract is awarded to F and B is barred from being involved with the
implementation and administration of the contract, would it be permissible for the
school district administration to establish a "Chinese Wall" whereby supervisory
and overall responsibility for the implementation and administration of the
contract would be shifted away from B and his immediate subordinates?
You state that assuming B is barred from the implementation and administration
of the contract under Section 1103(f) of the Ethics Act, supervisory and overall
responsibility for the implementation and administration of the contact could be shifted
to an Assistant Superintendent. In order to implement and administer the contract, the
Assistant Superintendent would have to work in unison with the K, as well as various
Business Office personnel, who fall within the chain of command of the C. You state
that the issue is complicated by the fact that the C has the responsibility for the
oversight of all School District business affairs and by definition has supervisory
authority over all personnel involved with school district business affairs. However, you
state that under the foregoing scenario, any personnel involved with the implementation
or administration of the contract would report directly to the Assistant Superintendent for
purposes related to the contract. In the meantime, B would maintain responsibility for
making payments under the contract to F. You state that any payments to F would be
ministerial in nature, in that payments would be mandated by virtue of the terms of the
contract and would require approval by the Board.
3. Given B's position of C and his resultant supervisory responsibilities, is F
automatically barred from submitting a bid or proposal for the multi -year G
vendor contract?
You state that B and the School
conflict of interest. Your main concern
despite the fact that the contract would
process. You ask whether the fact that
the implementation and administration
participating in the competitive bidding or
District acknowledge that he must avoid any
is whether F may participate in the process,
be awarded through a fair, open and public
B would be directly or indirectly involved with
of the contract automatically bars F from
proposal process.
4. Would the analysis under the State Ethics Act change with respect to
whether B could oversee implementation and administration of the contract or
whether F could participate in the competitive bidding or proposal process, if in
fact F would be the only vendor capable of meeting or exceeding the G proposal
specifications and performance standards?
You state that while several companies may manufacture equipment which
produce Os at rates similar to F equipment, not all Gs are equal. You state that a
compelling argument could be made that no other vendor is capable of supplying
hardware, software, and personnel able to fulfill the needs of the School District.
5. Assuming F is not automatically barred from entering into a multi -year G
vendor contract with the School District as a result of B's direct or indirect
Confidential Advice 04 -571
July 20, 2004
Page 5
involvement with the implementation and administration of the contract, does the
PEPPM program satisfy the State Ethics Act in terms of that program constituting
an "open and public process" in compliance with Section 1103(t) of the Act?
You state that the Ethics Act does not require that a contract be awarded to the
lowest responsible bidder; the Act appears to simply require that the governmental body
disclose to members of the public the steps which were followed in evaluating various
options available. You further state that while the Ethics Act requires prior public notice,
it does not specifically require publication of a notice in a newspaper of general
circulation, as is required under Section 807.1 of the Public School Code, 24 P.S. 8-
807.1. You argue that the public notice requirement under Section 1103(f) of the Ethics
Act can be interpreted as simply requiring that the governmental body give public notice
of its intent to award a contract, and that the award can be made only at a public
meeting after having disclosed all proposals. You argue that it would seem reasonable
to be able to purchase or lease Gs, specifically F Gs, through the PEPPM Program.
6. Assuming F is not automatically barred from entering into a multi -year G
vendor contract with the School District as a result of B's direct or indirect
involvement with the implementation and administration of the contract would it
be permissible for the School District to award the contract for the NI through
either a competitive bidding or request- for - proposal process, and as a condition
of the competitive bidding or request- for - proposal process require that the
vendor have compatible Gs available through the PEPPM Program through which
the school district can then lease the [number] Gs to be placed in facilities
throughout the school district?
You state that this issue involves whether the PEPPM Program satisfies the
"open and public process" required under Section 1103(f) of the Ethics Act. Unlike the
fifth issue, this issue considers the PEPPM Program as being integrated into the
competitive bidding or RFP process. You state that in this scenario, the lease contract
for the [number] Gs awarded through the PEPPM Program would be awarded to the
vendor having the PEPPM contract for the equipment that is compatible with the
equipment utilized in the M, noting that it is necessary for the [number] Gs to be able to
interface with the network and to interface with the Gs located in the M. You state that
the contract for the M would be awarded through either competitive bidding or an RFP
process, each of which would satisfy the "open and public process." A condition of the
bid or proposal specifications could include a statement that the School District requires
that whichever vendor submits the successful bid or proposal must have compatible
equipment available through the PEPPM Program, and that the School District will be
leasing approximately [number] Gs through that program to be installed at locations
throughout the School District. Thus, although the PEPPM Program might not, standing
alone, satisfy the "open and public" requirements of Section 1103(f) of the Ethics Act, an
argument could be made that the lease contract awarded through the PEPPM Program
would be permissible when integrated into the competitive bidding or RFP process.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the Ethics Act, 65 Pa.C.S. §§ 1 (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 the same aforesaid sections of the
Ethics Act, 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
Confidential Advice 04 -571
July 20, 2004
Page 6
will be investigated by the Commission if there are allegations of Ethics Act violations by
a person who is subject to the Ethics Act.
It is finally noted that the prospective conduct of the School District as a
governmental body shall not be addressed in this Advice. The conduct of a
governmental body does not fall within the scope of Section 1103(a) or Section 1103(f)
of the Ethics Act, and therefore this Commission does not have jurisdiction to address
the prospective conduct of the School District in this matter.
As the C for the School District, B is a public official /employee as those terms are
defined in the Ethics Act, and hence he is 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.
"Immediate family." A parent, spouse, child, brother
or sister.
"Business." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self - employed individual, holding company, 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
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July 20, 2004
Page 7
immediate family is a director, officer, owner, employee or
has a financial interest.
"Contract." An agreement or arrangement for the
acquisition, use or disposal by the Commonwealth or a
political subdivision of consulting or other services or of
supplies, materials, equipment, land or other personal or real
property. The term shall not mean an agreement or
arrangement between the State or political subdivision as
one party and a public official or public employee as the
other party, concerning his expense, reimbursement, salary,
wage, retirement or other benefit, tenure or other matters in
consideration of his current public employment with the
Commonwealth or a political subdivision.
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(f) of the Ethics Act provides as follows:
§ 1103. Restricted activities
(f) Contract. - -No public official or public employee or
his spouse or child or any business in which the person or
his spouse or child is associated shall enter into any contract
valued at $500 or more with the governmental body with
which the public official or public employee is associated or
any subcontract valued at $500 or more with any person
who has been awarded a contract with the governmental
body with which the public official or public employee is
associated, unless the contract has been awarded through
an open and public process, including prior public notice and
subsequent public disclosure of all proposals considered and
contracts awarded. In such a case, the public official or
public employee shall not have any supervisory or overall
responsibility for the implementation or administration of the
contract. Any contract or subcontract made in violation of
this subsection shall be voidable by a court of competent
jurisdiction if the suit is commenced within 90 days of the
making of the contract or subcontract.
65 Pa.C.S. § 1103(f).
Section 1103(f) does not operate to make contracting with the governmental
body permissible where it is otherwise prohibited. Rather, where a public official /public
employee, his spouse or child, or a business with which he, his spouse or child is
associated, is otherwise appropriately contracting with the governmental body, or
subcontracting with any person who has been awarded a contract with the
governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an
open and public process" be observed as to the contract with the governmental body.
Pursuant to Section 1103(f), an "open and public process" includes:
Confidential Advice 04 -571
July 20, 2004
Page 8
(1) prior public notice of the employment or contracting possibility;
(2) sufficient time for a reasonable and prudent competitor /applicant to be
able to prepare and present an application or proposal;
(3) public disclosure of all applications or proposals considered; and
(4) public disclosure of the contract awarded and offered and accepted.
Section 1103(f) of the Ethics Act also requires that the public official /employee
may not have any supervisory or overall responsibility as to the implementation or
administration of the contract with the governmental body.
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 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, Pavlovic, Opinion 02 -005.
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
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July 20, 2004
Page 9
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.
It is clear that B's spouse, D, is a member of his immediate family, and that F is a
business with which D is associated. Therefore, pursuant to Section 1103(a) of the
Ethics Act, B would generally have a conflict of interest in matters that would financially
impact himself, his spouse, or F, including any contract between the School District and
F. In each instance of a conflict, B would be required to abstain from participating and
to observe the disclosure requirements of Section 1103(j) of the Ethics Act.
Having established the above principles, your six specific inquiries shall now be
addressed.
In response to your first specific inquiry, Section 1103(f) of the Ethics Act
provides that "the public employee shall not have any supervisory or overall
responsibility as to the implementation or administration of the contract." 65 Pa.C.S. §
1103(f). Section 1103(f) does not carve out an exception for instances where a public
official /employee whose responsibilities include implementation and administration of a
contract must report to a superior who has ultimate responsibility. Based upon a
straightforward application of Section 1103(f) of the Ethics Act, B may not have any
supervisory or overall responsibility as to the implementation or administration of a
contract between F and the School District.
In response to your second specific inquiry, while the State Ethics Commission
may not decide the appropriate measures to be taken by the School District
Administration with respect to shifting the supervisory or overall responsibility as to the
implementation or administration of the contract away from B, it is noted that where
there would be a pre- existing mechanism in place for delegation of B's authority to a
superior rather than to a subordinate, he would not run afoul of Section 1103(a) of the
Ethics Act. See, Confidential Opinion, 02 -004 (wherein the State Ethics Commission
held that a pu�fic official could not delegate his full authority to a subordinate with
respect to the matter of appointing an immediate family member to a compensated
position within the political subdivision. The Commission held that pursuant to Section
1103(a) of the Ethics Act, where there is no pre- existing mechanism in place specifying
how and by whom the public official's authority is to be exercised in the event of a
conflict, the public official's delegation of such authority to a subordinate is itself a use of
authority of office in contravention of Section 1103(a) of the Ethics Act). As to the sole
action of B's responsibility for making payments under the contract to F, you state that
his actions would be "ministerial in nature" in that the payments would be mandated by
virtue of the terms of the contact and would require approval by the Board. Under such
a scenario, it would appear that B would merely be performing a non - discretionary
perfunctory role, which action in and of itself would not be problematic under Section
1103(a) of the Ethics Act. See, Kraines v. State Ethics Commission, 805 A.2d 677 (Pa.
Commw. 2002), alloc. den., 572 Pa. 781, 818 A.2d 508 (2003).
In response to your third specific inquiry, the Ethics Act does not address
whether a business with which a public official /employee's spouse is associated is
permitted or prohibited from submitting bids or proposals. Section 1103(f) of the Ethics
Act does provide that where a public official/ public employee, his spouse or child, or a
business with which he, his spouse or child is associated, is otherwise appropriately
contracting with the governmental body, or subcontracting with any person who has
been awarded a contract with the governmental body, in an amount of $500.00 or more,
the contract must be awarded through an "open and public process," and the public
official /employee may not have any supervisory or overall responsibility as to the
implementation or administration of the contract with the governmental body.
Confidential Advice 04 -571
July 20, 2004
Page 10
In response to your fourth specific inquiry, the fact that F would be the only
vendor capable of meeting or exceeding the G proposal specifications would not be
legally relevant in making a determination as to whether B could have any supervisory
or overall responsibility as to the implementation or administration of the contract
between F and the School District, or whether F could participate in the competitive
bidding or proposal process.
In response to your fifth specific inquiry, in order for the PEPPM Program to
satisfy Section 1103(f) as to an 'open and public process," it must include: (1) prior
public notice of the employment or contracting possibility; (2) sufficient time for a
reasonable and prudent competitor /applicant to be able to prepare and present an
application or proposal; (3) public disclosure of all applications or proposals considered;
and (4) public disclosure of the contract awarded and offered and accepted. See,
Fields, Opinion 82 -006. See also, Pennsylvania Training School v. Independent Mutual
iF re Insurance Co., 127 Pa. 55
Finally, your sixth question is beyond the jurisdiction of the State Ethics
Commission because it relates to the prospective conduct of the School District as a
governmental body, which matter does not fall within the scope of Section 1103(a) or
Section 1103(f) 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.
Conclusion: As the C for the A School District, B is a public official /employee
subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1101 et seq. B's spouse, D, is a member of his immediate family. F, through
which D is emplyed, is a business with which she is associated. Pursuant to Section
1103(a) of the Ethics Act, B would generally have a conflict of interest in matters that
would financially impact himself, his spouse, or F, including any contract between the
School District and F. In each instance of a conflict, B would be required to abstain
from participating and to observe the disclosure requirements of Section 1103(j) of the
Ethics Act. The restrictions with respect to Sections 1103(a), 1103(j) and 1103(f)
outlined above and as discussed in the responses to the above specific inquiries must
be observed. 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
Confidential Advice 04 -571
July 20, 2004
Page 11
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