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HomeMy WebLinkAbout26-567 Bonner PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 304 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL October 13, 2026 To the Requester: Michael C. Bonner, Esquire 26-567 Dear Mr. Bonner: This responds to your letter dated September 11, 2026, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”) under the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., seeking guidance as to the issue presented below: Issue: Whether the Ethics Act would impose prohibitions or restrictions upon an individual serving as a school director with regard to being employed as the girls’ varsity softball coach for the school district following his resignation from the school district school board. Brief Answer:Subject to the condition that there has not been and would not be a use of the authority of the individual’s position as a school director or confidential information received through being a school director to advance the prospects of his obtaining employment with the school district, Section 1103(a) of the Ethics Act (pertaining to conflict of interest) would not prohibit the individual from being employed as the girls’ varsity softball coach for the school district following his resignation from the school district school board. However, there may be an issue under Section 3-324(a) of the Public School Code – which the Commission does not have the jurisdiction to interpret – as to whether the individual would be eligible to be employed as the girls’ varsity softball coach prior to the expiration of his current elected termas a school director. Facts: Bonner, 26-567 October 13, 2026 Page 2 As Solicitor for the Neshannock Township School District (“School District”), you request an advisory from the Commission on behalf of David Antuano(“Mr. Antuano”). You have submitted facts that may be fairly summarized as follows. Mr. Antuano has served as a School Director for the School District since 2013. Mr. Antuano’s current term as a School Director expires in approximately three years. The School District recently sought applicants for the position of Girls’ Varsity Softball Coach. Consistent with applicable collective bargaining agreements, the position was first posted internally within the School District and thereafter advertised in a local newspaper. As a relatively small school district, the School District has limited compensation resources available for coaching positions, which can significantly restrict the pool of qualified applicants for coaching positions. Mr. Antuano submitted an application for the Girls’ Varsity Softball Coach position and was interviewed on September 10, 2026. Based upon Mr. Antuano’s background and qualifications, the School District considers him to be a highly qualified candidate for the position, and he is the only individual who has applied for the position. Mr. Antuano is prepared to resign from the School District School Board in order to be considered for employment as the Girls’ Varsity Softball Coach. You state that Mr. Antuano understands that he could not participate as a School Director in the School District School Board’s consideration of his employment with the School District. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon Mr. Antuano with regard to being employed as the Girls’ Varsity Softball Coach for the School District following his resignation from the School District School Board. In particular, you pose the following questions: (1) Whether Mr. Antuano’s resignation from the School District School Board prior to any consideration or vote regarding his application for employment with the School District would sufficiently address any conflict of interest that may arise due to his present status as a School Director; (2) Whether the Ethics Act would impose any prohibitions or restrictions upon Mr. Antuano with regard to being employed by the School District during the one-year period following the termination of his service as a School Director; (3) Whether the fact that Mr. Antuano applied for the position of Girls’ Varsity Softball Coach while serving as a School Director creates any separate prohibition or restriction, provided that he has not participated in, influenced, or attempted to influence the selection or hiring process; and (4) Whether the Commission would recommend any additional safeguards or procedures that the School District should employ before considering Mr. Antuano for the position. Discussion: Bonner, 26-567 October 13, 2026 Page 3 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 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 material facts. 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), 1103(j). The following terms related to Section 1103(a) 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 Bonner, 26-567 October 13, 2026 Page 4 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. Subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict” or “conflict of interest,” 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public office or confidential information received by holding such a public position for the private pecuniary (financial) 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 not limited merely to voting but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. Section 1103(g) of the Ethics Act restricts a former public official/public employee with regard to “representing” a “person” before “the governmental body with which he has been associated”: § 1103. Restricted activities (g) Former official or employee.--No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 Pa.C.S. § 1103(g) (Emphasis added). Bonner, 26-567 October 13, 2026 Page 5 It is administratively noted that Section 3-324(a) of the Public School Code provides as follows: § 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, as a private person engaged in any business transaction with the school district in which he is 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, That one who has served as a school director for two consecutive terms, of six years each, may be elected to the position of attorney or solicitor for the board of which he was a member by the unanimous vote of all the other members of the board, and, after resigning his office as school director, shall be entitled to receive such pay for his services as solicitor as the board of school directors may determine: 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: And provided further, That one who has served as a school director may, after resigning from office as a school director, be elected to the position of teacher by the board of which he was a member by a vote of at least two-thirds of all other members of the board and shall be entitled to receive such pay for his services as a teacher as the board of school directors may lawfully determine. 24 P.S. § 3-324(a). Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a School Director for the School District, Mr. Antuano is a public official subject to the provisions of the Ethics Act. The fact that Mr. Antuano applied for the position of Girls’ Varsity Softball Coach for the School District while serving as a School Director in and of itself would not prohibit or restrict Mr. Antuano from being employed with the School District. Subject to the condition that there has not been and would not be a use of the authority of Mr. Antuano’s position as a School Director or confidential information received through being a School Director to Bonner,26-567 October 13, 2026 Page 6 advance the prospects of his obtaining employment with the School District, Section 1103(a) of the Ethics Act would not prohibit Mr. Antuano from being employed as the Girls’ Varsity Softball Coach for the School District following his resignation from the School District School Board. You are advised that Section 1103(g) of the Ethics Act would not prohibit Mr. Antuano from accepting employment as the Girls’ Varsity Softball Coach during the first year following his resignation from the School Board. The Commission has determined that Section 1103(g) does not prohibit the appointment/rehiring of a former public official/public employee to a public office or position of employment with the former governmental body. Confidential Opinion, 93-005; Confidential Opinion, 97-008; Long, Opinions 97-010 and 97-010-R; McGlathery, Opinion 00- 004. It is noted that there may be an issue under Section 3-324(a) of the Public School Code as to whether Mr. Antuano would be eligible to be employed as the Girls’ Varsity Softball Coach prior to the expiration of his current elected term as a School Director. Because this Advice may not interpret the provisions of the Public School Code, it is suggested that Mr. Antuanoseek legal advice in that regard. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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 receivedat 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. Respectfully, Bridget K. Guilfoyle Chief Counsel