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Home My WebLink About05-550 NalesnikBernard Nalesnik 1117 Frederick's Grove Road Lehighton, PA 18235 Dear Mr. Nalesnik: ADVICE OF COUNSEL June 3, 2005 05 -550 Re: Simultaneous Service, School Director and Principal of Vocational Technical School. This responds to your letter of May 2, 2005, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., imposes any prohibition or restrictions upon a school director from simultaneously serving or being employed as a principal of a vocational technical school. Facts: You are a member of the Board of Directors of the Lehighton Area School District ( "School District "). You are also a member of the Carbon County Area Vocational Technical School Operating Committee ( "Vo -Tech Operating Committee "), which is composed of one member from each of the five sending schools. In your capacity as a member of the Vo -Tech Operating Committee, you represent the School District. The position of Principal of the Carbon County Area Vocational Technical School ( "Vo- Tech ") has been available for some time. You state that the position was advertised and four people were initially interviewed, none of whom had experience or met the criteria. The position was re- advertised, but no one submitted an application within the allotted time. You state that you are fully certified and are experienced in vocational /technical education. You have offered your assistance in filling this position, perhaps as an acting principal, until someone with the appropriate background is found. You state that after talking to the School Solicitor and an attorney for the Pennsylvania School Boards Association, you have concluded that you would have to resign as a member of the Vo -Tech Operating Committee in order to help the Director of the Vo -Tech. You note that the Director would be responsible for your supervision and evaluations, while the Vo -Tech Operating Committee would be responsible for salary adjustments. Nalesnik, 05 -550 June 3, 2005 Page 2 You indicate that you would be willing to resign as a member of the Vo -Tech Operating Committee in order to serve as a Principal of the Vo -Tech. You seek guidance from the State Ethics Commission as to whether you may simultaneously serve as a School Director and Principal of the Vo -Tech. 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. As a School Director and a Vo -Tech Operating Committee Member, you are a "public official" as that term is defined in the Ethics Act and hence you are subject to the provisions of the Ethics Act. 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted Activities (a) Conflict of interest. —No public official or public employee shall engage in conduct that constitutes a conflict of interest. (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(a), (j). The following terms pertaining to conflicts of interest under the Ethics Act are defined as follows: § 1102. Definitions Nalesnik, 05 -550 June 3, 2005 Page 3 "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 applying the above provisions of the Ethics Act to the question of simultaneous service, it is initially noted that the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa. Const. Art. 6, § 2. There does not appear to be any statutorily - declared incompatibility precluding simultaneous service in the positions in question. Turning to the question of conflict of interest, 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, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Where simultaneous service would place the public official /public employee in a continual state of conflict, such as where in one position he would be accounting to himself in another position on a continual basis, there would be an inherent conflict. (See, McCain, Opinion 02 -009). Where an inherent conflict would exist, it would appear to be impossible, as a practical matter, for the public official /public employee to function in the conflicting positions without running afoul of Section 1103(a). Absent a statutorily - declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not preclude an individual from simultaneously serving in more than one position, but in each instance of a conflict of interest, the individual would be required to abstain and to satisfy the disclosure requirements of Section 1103(j) as set forth above. In this case, based upon the facts that you have submitted, wherein you indicate that you will resign as a member of the Vo -Tech Operating Committee, there does not appear to be an inherent conflict that would preclude simultaneous service as a School Director and Principal of the Vo -Tech. Consequently, such simultaneous service would be permitted within the parameters of Sections 1103(a) and 1103(j). Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Public School Code of 1949. Nalesnik, 05 -550 June 3, 2005 Page 4 Conclusion: As a School Director for the Lehighton Area School District and a member of the Carbon County Area Vocational Technical School Operating Committee, 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. Based upon the facts that you have submitted, wherein you indicate that you will resign as a member of the Vo -Tech Operating Committee, you may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of School Director and Principal of the Carbon County Area Vocational Technical School, subject to the restrictions, conditions and qualifications set forth above. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), this 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