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HomeMy WebLinkAbout05-534 ConfidentialADVICE OF COUNSEL April 13, 2005 05 -534 Re: Conflict; Public Official /Employee; School Director; Vote to Hire Principal; Employment; Science Teacher; Assistant Principal /Applicant; Bassi, Opinion 86- 007-R; Woodrinq, Opinion 90 -001; Elisco, Opinion 00 -003. This responds to your faxed letter of March 15, 2005, 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 prohibition or restrictions upon a school director with regard to participating in the hiring of a middle school principal when one of the candidates for the position is the school director's administrative superior in a different school district. Facts: As Solicitor for School District A, you request an advisory on behalf of Individual B, who is both a School Director of School District A and a High School science teacher employed at the Middle /High School of School District C. You have submitted facts that may be fairly summarized as follows. School District A is seeking to hire a Middle School Principal to fill an existing vacancy. The position has been advertised, and a committee of administrators and board members has screened the applications, interviewed candidates, and narrowed the field down to three candidates. One of these candidates is Individual D. Individual D is currently employed as one of four administrators, specifically an Assistant Principal, at the Middle /High School of School District C where Individual B is employed. You state that as Assistant Principal, Individual D is not involved in teacher evaluations, which are divided by the principals according to teaching department. Teachers in the Science Department are evaluated by the Academic Principal. You state that although a student complaint about Individual B could be assigned to Individual D for investigation, any disciplinary action against Individual B would require the approval of other individuals. For example, a verbal or written reprimand would require approval of the High School Principal; a disciplinary suspension would Confidential Advice, 05 -534 April 13, 2005 Page 2 require the approval of the Superintendent; and dismissal proceedings would require the approval of the Superintendent and the School Board President. You state that Individual B's compensation and benefits as a teacher are defined by the terms of a collective bargaining agreement between School District C and the teacher's union to which Individual B belongs. The administrators have no discretion to either increase or decrease such compensation or benefits. Based upon the foregoing facts, you ask whether in the capacity as a School Director, Individual B would have a conflict of interest in participating in and voting on the matter of hiring a Middle School Principal for School District A. 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 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 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 requester 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 will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall be addressed. As a School Director, Individual B is 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 Confidential Advice, 05 -534 April 13, 2005 Page 3 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. The use of authority of office is more than the mere mechanics of voting and encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order 809. Use of authority of office includes, for example, discussing, conferring with others, and lobbying for a particular result. 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: § 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 /public employee to abstain and to publicly disclose the abstention and reasons for same, both Confidential Advice, 05 -534 April 13, 2005 Page 4 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 submitted facts, you are advised that pursuant to Section 1103(a) of the Ethics Act, Individual B would have a conflict of interest as a School Director and would be prohibited from voting or otherwise participating in the hiring of the next Middle School Principal for School District A. This conclusion is based upon the reciprocity of power between Individual B and one of the applicants, Individual D, in their respective current positions in School District A and School District C. See, Bassi, Opinion No. 86- 007 -R, Woodrinq, Opinion No. 90 -001, and Elisco, Opinion 00 -003. In Bassi, Opinion No. 86- 007 -R, the State Ethics Commission held, inter alia, that a County ommissioner (Edward Paluso) could not enter into a lease with a municipal authority, where one of the members of the authority (Norman Carson) was a county employee directly responsible to the commissioners of the county, unless the execution of the lease was accomplished after an open and public process, with the authority member abstaining from participating in the review and award of said lease, and the county commissioner abstaining from participating in any matter relating to the authority member in his position as a county employee. The Commission stated, inter alia: . we cannot ignore the fact that Mr. Carson is an authority member and has influence and control over authority decisions. In this respect, Mr. Carson, by voting on the final adoption of a lease, would be voting on a matter directly related to his employer. Even though that employer is another governmental body, we have held, in the past, that a public official may not vote or participate in a matter if it somehow relates to a financial interest which he may have. See, Welz, 86 -001. In the instant situation, Mr. Carson would be called upon to determine the advisability of renting property for the authority. The property which they are seeking to rent is owned by the individual or one of the individuals who currently supervises him and controls his public employment with the county. As a result of this, Mr. Carson, as an authority member, should abstain from participating in any matter relating to this particular lease. See, Bassi, 86 -007 at 3. The Commission further stated: Mr. Paluso as a county commissioner, is, in part, responsible for the general supervision of Mr. Carson. Mr. Carson, on the other hand, is an authority member in a position to grant Mr. Paluso a lease which results in Mr. Paluso receiving a financial gain. It may be difficult for the public to perceive how Mr. Paluso's actions as a county official, would not somehow be influenced by this potential leasing arrangement. It may be argued that Mr. Paluso, in dealing with Mr. Carson, to date, has done so in order to effect the favorable outcome of this lease. Additionally, it could be argued that Mr. Carson voted in favor of the lease in order to advance his position as a full -time county employee. The above factual scenarios, while hypothetical in nature, nonetheless create the types of conflicts of interest that are to be addressed by this Commission. Id. at 4. Confidential Advice, 05 -534 April 13, 2005 Page 5 In Woodring, Opinion No. 90 -001, the State Ethics Commission reviewed a similar situation. Jesse Woodring, Chairman of the Sunbury Redevelopment Authority, had applied to the City for a rehabilitation grant through the Federal Rental Rehabilitation Program (hereinafter, the "Program ") Kenneth Pick, who was employed as the Executive Director of the Redevelopment Authority (chaired by Woodring) also served as the Community Development Coordinator for Sunbury. In the latter capacity, Pick was administrator in charge of the Program for the City. Pick's functions included administering the Program, reviewing all applications, and determining eligibility. The Commission stated: . we are concerned that Mr. Pick, who is an employee of the Redevelopment Authority of which you are Chairman, has the duty of reviewing all applications and determining eligibility in his capacity as Community Development Coordinator for the city. In particular, the potential exists, given the employer - employee relationship between the Redevelopment Authority and Mr. Pick, that your application might be reviewed in a more favorable light than other applications. To forestall such a situation, you must not participate or take any action as to Mr. Pick if your application is approved and you receive benefits. Bassi, Opinion 86 -007. In addition, Section 3(j) of the Ethics Law would require you to publicly note that you would have a conflict as to any matter involving Mr. Pick. In addition, you must file a written memorandum to that effect with the person responsible for recording the minutes. Woodrinq, Opinion No. 90 -001 at 6. In Elisco, Opinion 00 -003, the Commission similarly held that where a City Council Member was an Assistant Principal and another City Council Member's spouse was a Principal in a certain School District, both Council Members would have a conflict of interest with regard to voting to invest pension funds through an investment company and its sales representative who was a School Director in that School District. As was the case in the rulings discussed above, the facts that you have submitted reflect that as a School Director, Individual B would have authority over the appointment /employment of the Middle School Principal for School District A, a position for which Individual D is a candidate. Meanwhile, Individual D exercises some administrative authority and influence over Individual B as to the latter's employment as a High School science teacher in School District C. For the reasons enunciated in Bassi, Woodring, and Elisco, supra, Individual B would have a conflict of interest pursuant to Section 1103(a) of the Ethics Act in matters pertaining to the appointment/employment of a Middle School Principal for School District A when one of the candidates for the position exercises some administrative authority and influence over Individual B as to the latter's employment as a High School science teacher in School District C. In each instance of a conflict of interest, Individual B would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 1103(j) as set forth above. 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. Confidential Advice, 05 -534 April 13, 2005 Page 6 Conclusion: As a School Director for School District A, Individual B is a public official subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act "), 65 Pa.C.S. § 1101 et seq. As a School Director, Individual B would have a conflict of interest pursuant to Section 1103(a) of the Ethics Act in matters pertaining to the appointment /employment of a Middle School Principal for School District A when one of the candidates for the position exercises some administrative authority and influence over Individual B as to the latter's employment as a High School science teacher in School District C. In each instance of a conflict of interest, Individual B would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 1103(j) as set forth above. 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 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. Sincerely, Vincent J. Dopko Chief Counsel