HomeMy WebLinkAbout04-601 HelbigThomas Helbig
9 Arlington Avenue
Carnegie, PA 15106
ADVICE OF COUNSEL
November 19, 2004
04 -601
Re: Conflict; Public Official; School Director; Board President; Board Secretary; Third
Class School District; Compensation; Functions Similar to Business Manager.
Dear Mr. Helbig:
This responds to your letter of October 14, 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., would present any restrictions upon a school director of a third
class school district with regard to serving as board secretary for compensation and
performing functions similar to those of a business manager.
Facts: As a school director for the Chartiers Valley School District ( "School
District "), a third class school district, you are seeking a second advisory from the State
Ethics Commission regarding your desire to both serve as a school director and perform
work for compensation for the School District.
The first Advice issued to you was Advice of Counsel 04 -593, issued September
17, 2004. That Advice addressed the question of whether as a school director you
could accept employment with the School District as business manager. Based upon a
prohibition in Section 3 -324 of the Public School Code of 1949 as amended ( "Public
School Code"), 24 P.S. § 3-324(a), the Advice concluded that you would be prohibited
under Section 1103(a) of the Ethics Act from being employed as the School District's
business manager while serving as its school director. (We need not address your
characterization of Advice of Counsel 04 -593, as the Advice speaks for itself.)
You now seek to serve as both a school director and board secretary for the
School District. You note that in a third class school district, a board member may be
elected board secretary. 24 P.S. § 4 -404. You further note that a board secretary has
general supervision of the business affairs of the school district, 24 P.S. § 4- 433(5), and
may receive compensation as fixed by the board. 24 P.S. § 4 -432.
Noting your experience on the school board, your current status as board
president, and your professional background, you ask whether as a school director, you
may accept employment and receive compensation as board secretary and erform
functions similar to those of a business manager. You state that you fully understand
that you may not participate in the decision making process or cast a vote as to your
election, and that if elected, you would have to resign as board president.
Helbiq, 04 -601
November 19, 2004
Page 2
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 that the requestor has submitted. In issuing the advisory based upon the
facts that the requestor 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 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 subject to the provisions of the
Ethics 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:
Helbiq, 04 -601
November 19, 2004
Page 3
§ 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. In issuing advisories under the Ethics Act, the
Commission sometimes reviews other laws to determine whether a given benefit would
be authorized, so that it may determine whether a public official /public employee would
be receiving a private pecuniary benefit contrary to the Ethics Act. However, the
Commission may not perform a judicial function of interpreting laws other than the
Ethics Act.
In the instant matter, the Public School Code of 1949 as amended ( "Public
School Code "), provides, in pertinent part, as follows:
Helbiq, 04 -601
November 19, 2004
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 . . . 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, 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 ... .
24 P.S. § 3- 324(a).
§ 4 -404. Districts second, third and fourth class
permanent organization; election of officers
. In school districts of the second class the secretary and
treasurer shall not be members of the board. In districts of
the third and fourth class they may be members of the
board. The same person shall not hold at the same time
more than one of the offices of resident, vice - president,
secretary, or treasurer of any board of school directors.
24 P.S. § 4 -404 (Emphasis added).
§ 4 -432. Compensation
The secretary of the board of school directors may
receive for his services such compensation as the board
shall fix, the amount of which shall be reported annually to
the Superintendent of Public Instruction and be printed in his
report.
24 P.S. § 4 -432.
On its face, Section 4 -404 of the Public School Code permits a school director of
a third class school district to serve as board secretary as long as he is not also serving
as board president, vice - president or treasurer. 24 P.S. § 4 -404. Therefore, Section
1103(a) of the Ethics Act would not prohibit you as a school director for a third class
school district from serving as board secretary under the submitted fact that you would
resign as board president.
However, the questions of whether, as board secretary, you would be permitted:
(1) to be compensated; and (2) to perform functions similar to those of the business
manager for compensation, may not be answered in this Advice as they would require
an interpretation of the Public School Code that only a court could provide.
The first of these questions necessitates a review and interpretation of multiple
sections of the Public School Code, none of which directly answers the question.
Additionally, there does not appear to be any case law answering this specific question
under the Public School Code of 1949.
Helbiq, 04 -601
November 19, 2004
Page 5
As for the second question, you are cautioned that under Pennsylvania law, form
is not elevated over substance. Baehr Brothers v. Commonwealth of Pennsylvania, 487
Pa. 233, 409 A.2d 326 (1979). A legal issue may exist as to whether, in performing
functions similar to those of the business manager, you would be exceeding the scope
of duties of a board secretary.
Therefore, the necessary response to your most recent request for an advisory is
that although Section 1103(a) of the Ethics Act would not prohibit you as a school
director for a third class school district from serving as board secretary under the
submitted fact that you would resign as board president, you would not be permitted to
receive compensation as board secretary or to perform functions similar to those of the
business manager for compensation unless you would be permitted to do so under the
provisions of the Public School Code of 1949 as amended.
Act.
The propriety of the proposed conduct has only been addressed under the Ethics
Conclusion: As a School Director for the Chartiers Valley School District ( "School
District "), a third class 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.
Although Section 1103(a) of the Ethics Act would not prohibit you as a school director
for a third class school district from serving as board secretary under the submitted fact
that you would resign as board president, you would not be permitted to receive
compensation as board secretary or to perform functions similar to those of the
business manager for compensation unless you would be permitted to do so under the
provisions of the Public School Code of 1949 as amended. 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