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HomeMy WebLinkAbout06-546 DobrowolskiSandra Dobrowolski 69 Valley View Drive Hunlock Creek, PA 18621 Dear Ms. Dobrowolski: ADVICE OF COUNSEL April 13, 2006 06 -546 This responds to your letter of March 15, 2006, 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 an individual serving as the transportation coordinator for a school district when the individual has a business that contracts with the school district to provide student busing services.. Facts: As Transportation Coordinator for the Lake - Lehman School District (District), you seek an advisory from the State Ethics Commission. You have submitted the following facts which may be fairly summarized as follows. You hold the position of Transportation Coordinator for the District. Because the position is within the support staff contract, it does not entail the making of any type of management decisions. You also operate a business, owned by yourself and your adult children, that contracts with the District to transport students. The duties of the Transportation Coordinator include but are not limited to setting up routes and assigning students to buses and vans contracted by the District. After the routes are set up and assigned, they are sent first to the Business Manager, then to the District Superintendent, and finally to the School Board for approval. In addition to the chain of command approval for busing routes, you suggest that other safeguards could be established, as for example, limiting changes to existing routes unless there would be written justification that such changes would be in the best financial interest for the District. In that you have been hired to this position contingent upon a ruling from this Commission, you ask whether you may serve in the capacity as Transportation Coordinator under the Ethics Act. Dobrowolski, 06 -546 April 13, 2006 Page 2 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 noted that ursuant to Sections 1107(10) and (11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (111), 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 Transportation Coordinator for the Lake - Lehman School District, you are a public employee 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. Dobrowolski, 06 -546 April 13, 2006 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. "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. The term shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 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(f) of the Ethics Act provides as follows: § 1103. Restricted activities (f) Contract. - -No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. Dobrowolski, 06 -546 April 13, 2006 Page 4 65 Pa.C.S. § 1103(f). Section 1103(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official /public employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an "open and public process" be observed as to the contract with the governmental body. Pursuant to Section 1103(f), an "open and public process" includes: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered; and (4) public disclosure of the contract awarded and offered and accepted. Section 1103(f) of the Ethics Act also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. 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 Dobrowolski, 06 -546 April 13, 2006 Page 5 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. The question you have posed will now be addressed under Section 1103(a) of the Ethics Act. In Fletcher, Opinion 89 -018, the Commission considered whether a School Board Member could serve on the Board's transportation committee, given that the member was employed by a contractor who transported students in the district. The Commission is ruling that the School Board Member could not serve on the transportation committee noted: In the instant matter, since you are employed by the contractor who transports the school district students, that is a business with which you are associated. If you were to serve on the transportation committee, you as a member of the transportation committee would consider contracts of the business with which you are associated as well as other transportation contractors. You acknowledge that you may not vote on the transportation contract of your employer. However, the restriction under the Ethics Law would require your abstention on other transportation contracts because they could be competitors of the business with which you are associated. If you were to vote on other transportation contracts, you could cast negative votes so as to limit or eliminate the competition. See Pepper, Opinion 87 -008. Therefore, your employment with the contractor who transports students is adverse to your position on the transportation committee and the Ethics Law would prohibit your service on that committee. Fletcher, at 3. See also, McConahy, Opinion 96 -006. In this case, as Transportation Coordinator, your function is to set the bus routes and assign students, subject to subsequent approval. However, you, by the authority of your position, would be making the initial determinations, which when approved, would financially impact your private transportation business. The Commission has determined that where the job functions of a public official or public employee place the individual in a continuing state of conflict, such a situation constitutes an "inherent conflict" that would make it impossible, as a practical matter, for the public official /public employee to function in the conflicting positions without running afoul of Section 1103(a). See, Johnson, Opinion 86 -004. In McCain, Opinion 02 -009, the Commission determined that a school district secretary who was responsible for auditing the township's tax collector's reports would have an inherent conflict if she would also become the township tax collector: Despite your contention that there is no place in the process for misconduct, given the oversight of the Business Manager and the County, as well as the performance of certain audits, the functions which you Dobrowolski, 06 -546 April 13, 2006 Page 6 currently perform for the School District are an important and practical component of a check - and - balance system designed to ensure the propriety of the tax collection process. Permitting an individual performing such a role to audit her own Tax Collector reports would undermine the check - and - balance system. McCain, at 7. Based upon the above Commission precedent, Section 1103(a) of the Ethics Act would prohibit you from serving as transportation coordinator when you have a business that contracts with the school district to provide student busing services for the school district. 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 School Code. Conclusion: As Transportation Coordinator for the Lake - Lehman School District, you are a public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Section 1103(a) of the Ethics Act would prohibit you from serving as transportation coordinator when you have a business that contracts with the school district to provide student busing services for the school district. 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