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HomeMy WebLinkAbout05-004 ConfidentialOPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella Reverend Scott Pilarz DATE DECIDED: 6/7/05 DATE MAILED: 6/17/05 05 -004 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; Appeal of Advice. This Opinion is issued in response to the appeal of Confidential Advice, 05 -534, which was issued on April 13, 2005. I. ISSUE: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.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. II. FACTUAL BASIS FOR DETERMINATION: By letter dated April 22, 2005, you appealed Confidential Advice, 05 -534 issued April 13, 2005. In your initial letter requesting an advisory, you presented the following facts. You are Solicitor for School District A. You are seeking an advisory on behalf of Individual B, who is a School Director for School District A and a High School science teacher employed at the Middle /High School of School District C. School District A is hiring a Middle School Principal to fill a 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 three candidates is Individual D, who is currently employed as one of four administrators, specifically an Assistant Principal, at the Middle /High School of School Confidential Opinion, 05 -004 June 17, 2005 Page 2 District C where Individual B is employed. The other three administrators at the Middle /High School of School District C include a High School Principal, an Academic Principal, and a Middle School Principal. As Assistant Principal, Individual D is not involved in teacher evaluations of Individual B. The Academic Principal is assigned to evaluate teachers in the Science Department. As Assistant Principal, Individual D is responsible for student matters involving students in the 9 and 10 grades, which grades Individual B teaches. 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: a verbal or written reprimand would require approval of the High School Principal; a disciplinary suspension would require the approval of the Superintendent; and dismissal proceedings would require the approval of the Superintendent and the School Board President. 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 have asked whether 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. Confidential Advice, 05 -534 determined that 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. Confidential Advice, 05 -534 stated that 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) of the Ethics Act. By letter of April 22, 2005, you have appealed Confidential Advice, 05 -534. Your appeal letter did not state any particular basis for the appeal, but merely exercised the right to appeal the Advice of Counsel. By letter dated April 26, 2005, you were notified of the date, time and location of the executive meeting at which your request would be considered. On May 30, 2005, this Commission received from Individual B additional materials consisting of a letter dated May 19, 2005, from Individual E, High School Principal for School District C, to Individual B, and an undated letter from Individual B to this Commission's Chief Counsel. Individual E's letter states, in pertinent part, that Individual D is an Assistant Principal /Athletic Director for School District C whose administrative responsibilities include freshman and sophomore discipline; that the district's Academic Principal makes Individual B's schedule; and that Individual E and the district's Academic Principal would handle any disciplinary procedures against Individual B. Individual B's letter states, in pertinent part: It is my belief, due to the unique administrative structure within ... [School District C], that there is not a conflict of interest on my part in voting for a middle school principal. As was stated in ... [Individual E's] letter, ... [Individual D] does not have a supervisory role as it relates to my position." With respect to Individual B's above assertion, we administratively note that Confidential Opinion, 05 -004 June 17, 2005 Page 3 Individual E's letter does not specifically state that Individual D does not have a supervisory role as it relates to Individual B's position. Additionally, neither of the aforesaid letters contradicts the prior factual submission that Individual D has authority to investigate student complaints about Individual B. Our review of this matter is de novo. Spear, Opinion 04 -011. III. 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, this 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, this Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint, which will be investigated by this 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 pertaining to conflicts of interest under the Ethics Act are defined 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 Confidential Opinion, 05 -004 June 17, 2005 Page 4 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. 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 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 /public employee anything of monetary value and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public 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). Confidential Opinion, 05 -004 June 17, 2005 Page 5 Subject to certain voting conflict exceptions, in each instance of a conflict of interest, Section 1103(j) requires the public official /public employee to abstain completely 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. The exception for breaking a tie vote despite a conflict is available exclusively to members of three - member governing bodies who first abstain and disclose their conflicts as required by Section 1103(j) of the Ethics Act. See, Pavlovic, Opinion 02 -005. The other exception is not limited to three - member boards but requires that the following conditions be met: (1) the board must be unable to take any action on the matter before it because the number of members required to abstain from voting under the provisions of the Ethics Act makes the majority or other legally required vote of approval unattainable; and (2) prior to voting, such members with conflicts under the Ethics Act must disclose their conflicts as required by Section 1103(j). Id. This Commission has cautioned that when applicable, the voting conflicts exceptions would allow for voting only, and would not permit other forms of participation. See, Whitlock, Opinion 04 -015. In applying the above provisions of the Ethics Act to the submitted facts, Confidential Advice, 05 -534 concluded 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. The conclusion was based upon the reciprocity of power between Individual B and Individual D in their respective current positions. The Advice of Counsel cited and reviewed certain prior Opinions of this Commission, specifically, Bassi, Opinion No. 86- 007 -R, Woodrinq, Opinion No. 90 -001, and Elisco, Opinion 00 -003. The Advice of Counsel's recitation as to Bassi, Woodrinq, and Elisco, supra, is accurate and is incorporated herein by reference. Based upon the submitted facts, we agree with Confidential Advice, 05 -534. There is reciprocity of power between Individual B and Individual D. 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. As noted in the Advice of Counsel, Individual D exercises some administrative authority and influence over Individual B as to the Tatter's employment as a High School science teacher in School District C. Although Individual D does not participate in teacher evaluations of Individual B, Individual D is responsible for student matters involving students in the 9 and 10 grades, which grades Individual B teaches. A student complaint about Individual B could be assigned to Individual D for investigation. We find such authority to be significant. Furthermore, even though Individual D would not have sole authority to impose disciplinary action against Individual B, it would seem from the submitted facts that the results of such an investigation as well as recommendations by Individual D could form the basis for disciplinary action against Individual B. Therefore, for the reasons enunciated in Bassi, Woodrinq, and Elisco, supra, we determine that 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. Under the submitted facts, there would not be any basis for applying the voting conflict exception of Section 1103(j) of the Ethics Act. 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 course of conduct has only been addressed under the Ethics Act. Confidential Opinion, 05 -004 June 17, 2005 Page 6 IV. CONCLUSION: A school director 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. A school director 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 the school district when one of the candidates for the position exercises some administrative authority and influence over the school director as to the latter's employment as a teacher in a different school district. In each instance of a conflict of interest, the school director would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 1103(j) as set forth above. The appeal is denied. Advice of Counsel, 05 -534 is affirmed. The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). By the Commission, Louis W. Fryman Chair