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HomeMy WebLinkAbout04-578 MakuchGary J. Makuch 222 Blueberry Lane Weatherly, PA 18255 Dear Mr. Makuch: ADVICE OF COUNSEL August 4, 2004 04 -578 Re: Conflict; Public Official /Employee; School Director; Immediate Family; Hiring of Spouse as Superintendent; Contract. This responds to your letter of July 4, 2004, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., presents any prohibition or restrictions upon a school director with regard to the hiring of his spouse as superintendent for the school district. Facts: You are a School Director for the Weatherly Area School District ( "School District "). The current Superintendent is leaving the School District to take another position. Your spouse has applied for the now vacant Superintendent position with the School District. You state that you have not been and will not be involved in any aspect of the screening, interviewing, selection, and hiring of the new Superintendent. You ask whether you may, under the Ethics Act, continue to serve as a School Director if your wife accepts the position of Superintendent for the School District. You state your understanding that if your spouse is selected to be the next Superintendent for the School District, you may not be involved in her evaluation(s) or any disciplinary action or compensation decisions, and may not vote on any motion regarding her employment. 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 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. Makuch, 04 -578 August 4, 2004 Page 2 As a School Director for Weatherly Area 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. "Immediate family." A parent, spouse, child, brother or sister. "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. Makuch, 04 -578 August 4, 2004 Page 3 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: (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 Makuch, 04 -578 August 4, 2004 Page 4 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. Section 1103(a) of the Ethics Act prohibits a public official /public employee 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. Under the submitted facts, it is clear that your spouse is a member of your "immediate family" as that term is defined under the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, you would not be prohibited from continuing to serve as a School Director. However, as a School Director, you would be prohibited from participating in actions of the Board to hire the next Superintendent when your spouse is an applicant for the position. Davis, Opinion 89 -012. If you were to participate, such action would be a conflict of interest in contravention of Section 1103(a) of the Ethics Act because you would be using the authority of office for the private pecuniary benefit of your spouse. A conflict would exist even as to making recommendations against or disapproving the other applicant(s) for the position when such action would assure or increase the possibility that the Board would hire your spouse to the position of Superintendent. See, Pepper, Opinion 87 -008. If your spouse would be hired to the position, you would have a conflict of interest in the future as to employment issues pertaining to your spouse such as her compensation, evaluation(s), raises and other matters that would financially impact her. In each instance of a conflict of interest, you would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) set forth above. As for Section 1103(f), if your spouse would be the successful applicant, the restrictions as set forth above would apply given that the contract between your spouse and the School District would be valued at $500 or more. Under Section 1103(f) of the Ethics Act, you in your capacity as a public official, would be prohibited from having any supervisory or overall responsibility for the implementation or administration of the School District's contract with your spouse. Makuch, 04 -578 August 4, 2004 Page 5 Lastly, 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. Specifically not addressed herein is the applicability of the Public School Code of 1949, as amended. Conclusion: As a School Director for the Weatherly Area School District ("School District "), you are a "public official" subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Your spouse is a member of your "immediate family." You would not be prohibited from continuing to serve as a School Director. Pursuant to Section 1103(a) of the Ethics Act, you would not be prohibited from continuing to serve as a School Director. However, as a School Director, you would be prohibited from participating in actions of the Board to hire the next Superintendent when your spouse is an applicant for the position because you would be using the authority of office for the private pecuniary benefit of your spouse. A conflict would exist even as to making recommendations against or disapproving the other applicant(s) for the position when such action would assure or increase the possibility that the Board would hire your spouse to the position of Superintendent. If your spouse would be hired to the position, you would have a conflict of interest in the future as to employment issues pertaining to your spouse such as her compensation, evaluation(s), raises and other matters that would financially impact her. In each instance of a conflict of interest, you would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) set forth above. The restrictions of Section 1103(f) noted above would have to be observed if the contract between your spouse and the School District would be valued at $500 or more. 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