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HomeMy WebLinkAbout05-578 RodellaJ.V. Rodella, Vice President Mt. Lebanon School Board 845 Academy Place Pittsburgh, PA 15243 ADVICE OF COUNSEL October 11, 2005 05 -578 Re: Conflict; Public Official /Employee; School Director; Trustee; Non - Profit Organization; Parents Athletic Council; Business With Which Associated. Dear Mr. Rodella: This responds to your letter of September 4, 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., presents any prohibition or restrictions upon a school director who also serves as a trustee for a non - profit parents athletics council ( "PAC ") with regard to participating in matters involving organizations that receive funding from the PAC and interact with the school district. Facts: As a School Director for the Mt. Lebanon School District ( "School District "), you seek an advisory from the State Ethics Commission. You have submitted facts that may be fairly summarized as follows. You currently serve on the board of the Parents Athletic Council ( "PAC "), a registered nonprofit organization that promotes youth sports related activities. PAC has been in existence for 50 years. PAC primarily raises funds through a letter campaign sent to all residents once a year and an occasional raffle. In addition, PAC has, in the past, raised funds through silent auctions at banquets. PAC's annual operating budget of approximately $20,000 is used to respond to requests for funding from various athletic organizations such as Little League Baseball, Girls' Softball, and Junior Tennis to defray operating expenses. The budget is also used to purchase tokens of commemoration to any athlete or team from the School district varsity programs when a state championship is won. Rodella, 05 -578 October 11, 2005 Page 2 You state that there is little interaction between the School District and PAC. You further state that at no time does PAC solicit any funding from the School District. To the contrary, there have been instances whereby the district athletic office has requested that a project to enhance district facilities be underwritten by PAC. The vast majority of funds dispersed by PAC are directed to youth sports that are not affiliated with the School District. A resident has charged that you have a conflict of interest in serving as a School Director and trustee to the PAC because PAC funds the Mt. Lebanon Aquatic Club in the amount of $1,500 to $2,000 annually and the Mt. Lebanon Aquatic Club is interested in the construction by the School District of a new natatorium. 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 for Mt. Lebanon School District ( "School District "), 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. Rodella, 05 -578 October 11, 2005 Page 3 "Immediate family." A parent, spouse, child, brother or sister. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 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: § 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 Rodella, 05 -578 October 11, 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 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. Based upon the submitted facts, PAC is not a business with which you or a member of your immediate family is associated. This conclusion is based upon the assumption that neither you nor a member of your immediate family is a director, officer, owner, employee or has a financial interest in PAC. Because PAC is not a business with which you are associated, you would not have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the School Board of Directors involving PAC. Having established the above general principles, your specific inquiry shall now be addressed. Under Section 1103(a) of the Ethics Act, as a School Director, you would not be prohibited from participating in matters before the School Board involving organizations that receive funding from PAC and interact with the School District, such as the Mt. Lebanon Aquatic Club, where such participation by you would not result in a private pecuniary benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. Without the possibility of a private pecuniary benefit as noted above, you would not have a conflict of interest under 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. Specifically not addressed herein is the applicability of the Public School Code of 1949. Conclusion: As a School Director for Mt. Lebanon 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. The Parents Athletic Council ( "PAC ") for which you are a trustee is not a business with which you or a member of your immediate family is associated. This conclusion is based upon the assumption that neither you nor a member of your immediate family is a director, officer, owner, employee or has a financial interest in PAC. Because PAC is not a business with which you are associated, you would not have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the School Board of Directors involving PAC. Under Section 1103(a) of the Ethics Act, as a School Director, you would not be prohibited from participating in matters before the School Board involving organizations that receive funding from PAC and interact with the School District, such as the Mt. Lebanon Aquatic Club, where such participation by you would not result in a private pecuniary benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. Without the possibility of a private pecuniary benefit as noted above, you would not have a conflict of interest under Section 1103(a) of the Ethics Act. Rodella, 05 -578 October 11, 2005 Page 5 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