HomeMy WebLinkAbout04-593 HelbigThomas Helbig
9 Arlington Avenue
Carnegie, PA 15106
Dear Mr. Helbig:
ADVICE OF COUNSEL
September 17, 2004
04 -593
Re: Conflict; Public Official /Employee; School Director; Employment as Business
Manager for the School District.
This responds to your letter of August 23, 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 applying for and accepting employment with the school district as the
business manager.
Facts: You are currently serving in your 11 year and third term of office as a
School Director for the Chartiers Valley School District ( "School District "). You served
as Board President for the past ten years, and Chairperson of the Budget and Finance
Committee during your first eight years of office. You served on the Board during the
past two construction /renovation projects of the School District, which is now starting a
$30 million district -wide construction and renovation program.
By way of personal background, you are a graduate of The Pennsylvania State
University with a bachelor's degree in Business Administration, and a major in accounting.
You are currently employed as a financial planner and a Registered Investment Advisor,
with 27 years of experience in the financial services industry.
The School Board recently accepted the retirement letter of the Business
Manager, who will be retiring from the School District on February 28, 2005. The
Business Manager also serves as the Board Secretary.
You are interested in applying for employment with the School District as the
Business Manager. You ask whether your service as a School Director would preclude
you from applying for employment with the School District. If you may apply for the
Helbiq, 04 -593
September 17, 2004
Page 2
position, you ask what your obligations as a School Director would be in order to apply
for, and if selected, accept employment by the School District.
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.
As a School Director, 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.
Helbiq, 04 -593
September 17, 2004
Page 3
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
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.
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.
Helbiq, 04 -593
September 17, 2004
Page 4
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:
§ 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) (Emphasis added).
Section 3- 324(a) quoted above, 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. Thus, if during your term as School
Director, you would accept employment as the Business Manager for the School District,
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 the Business Manager during your
term as School Director 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.
Helbiq, 04 -593
September 17, 2004
Page 5
Conclusion: As a School Director in the Chartiers Valley 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. In that the Public School
Code of 1949 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, you may not, during your term as School Director, accept
employment as the Business Manager for the School District, as 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