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HomeMy WebLinkAbout06-546-S DobrowolskiSandra Dobrowolski 69 Valley View Drive Hunlock Creek, PA 18621 Dear Ms. Dobrowolski: ADVICE OF COUNSEL May 23, 2006 06 -546 -S This responds to your letter of May 5, 2003, by which you requested supplemental 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: By letter dated March 15, 2006, you initially sought an advisory from the tate Ethics Commission. In response to your request, Dobrowolski, Advice 06 -546 was issued to you on April 13, 2006, which Advice is incorporated herein by reference. Based upon the facts that you originally submitted, Advice 06 -546 concluded, inter alia, that 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. By letter dated April 18, 2006, you sought further guidance based upon the following additional information. You state that your contract with the School District is limited to providing van service, specifically, four van runs. You further state that the School District runs 46 buses and 13 vans and that van service is a very small part of the School District's transportation department. You ask whether it would be possible for you to continue as Transportation Coordinator provided: (1) you would "divert" the business to your adult children; and /or (2) another School District employee would deal with the van contracts, taking responsibility for determining all van routes prior to the approval of the Business Manager, Superintendent and Board of Directors and leaving you to deal with the bus contracts and the day -to -day operations for van runs such as obtaining school calendars, calling other schools if there would be scheduling conflicts, and fielding complaints. Dobrowolski, 06 -546 -S May 23, 2006 Page 2 Discussion: In that Dombrowolski, Advice of Counsel, 06 -546 is incorporated herein by reference, the quotations, citations and commentary as to the Ethics Act set forth within that Advice will not be repeated here. In response to the question that you have posed, your proposed action in "diverting" your private transportation business to your adult children and /or having another School District employee take responsibility for determining all van routes while you deal with day -to -day operations for van runs such as obtaining school calendars, calling other schools if there would be scheduling conflicts, and fielding complaints, would not change the result reached in the base advice for the following reasons. First, assuming you would transfer your ownership interest in your business to your children, that business would be considered a business with which your children, immediate family members, are associated. Pursuant to Section 1103(a) of the Ethics Act, you as a Transportation Coordinator would generally have a conflict of interest in participating in matters that would financially impact yourself, your children's business, or a private customer /client of that business. Thus, transferring the business into your children's names would not, in and of itself, avoid conflicts of interests under Section 1103(a) of the Ethics Act. Second, even if you would delegate your duties relative to van contracts to another School District employee, you would still have a conflict of interest in matters relating to buses, as for example, changing a bus route to a van route. As to your residual day -to- day duties relative to vans, you would specifically have a conflict of interest in fielding complaints pertaining to van runs serviced through your /your children's transportation business as well as any other matter(s) that would financially impact that business. Further, as a general rule, your day -to -day duties could provide the basis for a conflict of interest if you would use the authority of your public position or confidential information to effectuate a private pecuniary benefit to your /your children's transportation business through a detriment to a business competitor. See, Pepper, Opinion 87 -008. In each instance of a conflict, you would be required to abstain and to fully satisfy the disclosure requirements of Section 1103(j) 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, as amended. Conclusion: As Transportation Coordinator for the Lake - Lehman School District ("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. In response to your question of whether it would be possible for you to continue as Transportation Coordinator provided: (1) you would "divert" the business to your adult children; and /or (2) another School District employee would deal with the van contracts, taking responsibility for determining all van routes prior to the approval of the Business Manager, Superintendent and Board of Directors and leaving you to deal with the bus contracts and the day -to -day operations for van runs such as obtaining school calendars, calling other schools if there would be scheduling conflicts, and fielding complaints, you are advised as follows. First, assuming you would transfer your ownership interest in your business to your children, that business would be considered a business with which your children, immediate family members, are associated. Pursuant to Section 1103(a) of the Ethics Act, you as a Transportation Coordinator would generally have a conflict of interest in participating in matters that would financially impact yourself, your children's business, or a private customer /client of that business. Thus, transferring the business into your children's names would not, in and of itself, avoid conflicts of interests under Section 1103(a) of the Ethics Act. Second, even if you would delegate your duties relative to van contracts to another School District Dobrowolski, 06 -546 -S May 23, 2006 Page 3 employee, you would still have a conflict of interest in matters relating to buses, as for example, changing a bus route to a van route. As to your residual day-to-day duties relative to vans, you would specifically have a conflict of interest in fielding complaints pertaining to van runs serviced through your /your children's transportation business as well as any other matter(s) that would financially impact that business. Further, as a general rule, your day -to -day duties could provide the basis for a conflict of interest if you would use the authority of your public position or confidential information to effectuate a private pecuniary benefit to your /your children's transportation business through a detriment to a business competitor. See, Pepper, Opinion 87 -008. In each instance of a conflict, you would be required to abstain and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. 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 requestor 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