HomeMy WebLinkAbout06-568 Binder HeathRoberta Binder Heath, Esquire
Andrews & Beard Law Offices
3366 Lynnwood Drive
P.O. Box 1311
Altoona, PA 16603 -1311
Dear Ms. Binder Heath:
ADVICE OF COUNSEL
June 15, 2006
06 -568
This responds to your letters of May 15, 2006, and May 16, 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., would impose any prohibitions or restrictions upon a school
director with regard to resigning from his school director position and being considered
for an employment position as superintendent with the same school district.
Facts: You request an advisory from the State Ethics Commission on behalf of
Dr. Merrill S. Arnold, a School Director for the Forbes Road School District ( "School
District "). You have submitted facts that may be fairly summarized as follows.
Prior to serving as a School Director, Dr. Arnold served as Superintendent in
various Pennsylvania school districts. Dr. Arnold retired from employment as a
Superintendent on June 30, 2004. Dr. Arnold has served as a School Director for the
School District since approximately May 2005.
The current School District Superintendent is planning to retire. Dr. Arnold would
like to resign from his position as School Director in order to be considered for the
Superintendent position with the School District. Referencing the one -year revolving
door provision of the Ethics Act, 65 Pa.C.S. § 1103(g), as well as certain provisions of
the Public School Code, you state your view that there is no specific prohibition that
would preclude Dr. Arnold from proceeding as planned. However, you request an
advisory from the State Ethics Commission as to any restrictions the Ethics Act would
impose upon Dr. Arnold under the submitted facts.
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
Binder Heath /Arnold, 06 -568
June 15, 2006
Page 2
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, 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 a School Director for the School District, Dr. Arnold would be considered a
public official subject to the Ethics Act and Regulations of the State Ethics Commission.
See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. 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), (j).
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
Binder Heath /Arnold, 06 -568
June 15, 2006
Page 3
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. You are advised that 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.
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. A
reasonable expectation that a business relationship will form may support a finding of a
conflict of interest. Amato, Opinion 89 -002.
Subject to certain voting conflict exceptions, Section 1103(j) of the Ethics Act
requires a public official /public employee with a conflict of interest to abstain 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.
In applying the above provisions of the Ethics Act to your inquiry, you are advised
that Section 1103(a) of the Ethics Act would prohibit Dr. Arnold from using the authority
of his current public position as a School Director or confidential information received by
being a School Director to advance an opportunity of employment with the School
District. In his capacity as a School Director, Dr. Arnold would generally have a conflict
of interest in matters pertaining to the hiring of a School District Superintendent given
his intention to apply for the position. Such matters would include, but would not be
limited to, determining the necessary qualifications for the position, reviewing
applications, or screening or interviewing applicants. In each instance of a conflict of
interest, Dr. Arnold would be required to abstain fully and to fully satisfy the disclosure
requirements of Section 1103(j) of the Ethics Act.
Conditioned upon the assumption that there would be no use of the authority of
Dr. Arnold's public position or confidential information received by being in such position
to advance the prospects of his obtaining employment as School District
Superintendent, Dr. Arnold's acceptance of employment in that position would not
transgress Section 1103(a) of the Ethics Act.
The one -year revolving door provision of the Ethics Act, 65 Pa.C.S. § 1103(g),
shall now be addressed.
Binder Heath /Arnold, 06 -568
June 15, 2006
Page 4
It is initially noted that if Dr. Arnold's resignation from the position of School
Director would occur contemporaneously with his assumption of the position of School
District Superintendent, Dr. Arnold would not become a former public official /public
employee as to the School District, and Section 1103(g) of the Ethics Act would not
apply to him insofar as the School District would be concerned. Boonin, Opinion 90-
003.
However, if there would be a hiatus between Dr. Arnold's service as a School
Director and as Superintendent for the School District, upon termination of service as a
School Director, Dr. Arnold would become a "former public official" subject to Section
1103(g) of the Ethics Act.
Section 1103(g) of the Ethics Act restricts the 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).
The terms "represent," "person," and "governmental body with which a public
official or public employee is or has been associated" are specifically defined in the
Ethics Act as follows:
§ 1102. Definitions
"Represent." To act on behalf of any other person in
any activity which includes, but is not limited to, the
following: personal appearances, negotiations, lobbying and
submitting bid or contract proposals which are signed by or
contain the name of a former public official or public
employee.
"Person." A business, governmental body,
individual, corporation, union, association, firm, partnership,
committee, club or other organization or group of persons.
"Governmental body with which a public official
or public employee is or has been associated." The
governmental body within State government or a political
subdivision by which the public official or employee is or has
been employed or to which the public official or employee is
or has been appointed or elected and subdivisions and
offices within that governmental body.
65 Pa.C.S. § 1102.
The term "person" is very broadly defined. It includes, inter alia, corporations and
other businesses. It also includes the former public employee himself, Confidential
Opinion, 93 -005, as well as a new governmental employer. Ledebur, Opinion 95 -007.
Binder Heath /Arnold, 06 -568
June 15, 2006
Page 5
The term "representation" is also broadly defined to prohibit acting on behalf of
any person in any activity. Examples of prohibited representation include: (1) personal
appearances before the former governmental body or bodies; (2) attempts to influence;
(3) submission of bid or contract proposals which are signed by or contain the name of
the former public official /public employee; (4) participating in any matters before the
former governmental body as to acting on behalf of a person; and (5) lobbying.
Popovich, Opinion 89 -005.
Listing one's name as the person who will provide technical assistance on a
proposal, document, or bid, if submitted to or reviewed by the former governmental
body, constitutes an attempt to influence the former governmental body. Section
1103(g) also generally prohibits the inclusion of the name of a former public
official /public employee on invoices submitted by his new employer to the former
governmental body, even though the invoices pertain to a contract that existed prior to
termination of public service. Shay, Opinion 91 -012. However, if such a pre - existing
contract does not involve the unit where the former public employee worked, the name
of the former public employee may appear on routine invoices if required by the
regulations of the agency to which the billing is being submitted. Abrams/Webster,
Opinion 95 -011.
A former public official /public employee may assist in the preparation of any
documents presented to his former governmental body. However, the former ublic
official /public employee may not be identified on documents submitted to the former
governmental body. The former public official /public employee may also counsel any
person regarding that person's appearance before his former governmental body. Once
again, however, the activity in this respect should not be revealed to the former
governmental body. The Ethics Act would not prohibit or preclude making general
informational inquiries to the former governmental body to secure information which is
available to the general public, but this must not be done in an effort to indirectly
influence the former governmental body or to otherwise make known to that body the
representation of, or work for the new employer.
Section 1103(g) only restricts the former public official /public employee with
regard to representation before his former governmental body. The former public official/
public employee is not restricted as to representation before other agencies or entities.
However, the "governmental body with which a public official /public employee is or has
been associated" is not limited to the particular subdivision of the agency or other
governmental body where the public official /public employee had influence or control
but extends to the entire body. See, Legislative Journal of House, 1989 Session, No.
15 at 290, 291; Sirolli, Opinion 90 -006; Sharp, Opinion 90- 009 -R.
The governmental body with which Dr. Arnold would be deemed to have been
associated upon termination of service as a School Director would be the School District
in its entirety.
Per State Ethics Commission precedents, Section 1103(g) of the Ethics Act does
not prohibit the appointment /rehiring of a former public official /public employee to a
public office or position of public 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. A question that might arise is whether, during
any hiatus following Dr. Arnold's resignation from the School Director position, Section
1103(g) would prohibit Dr. Arnold from contacting the School District for the purpose of
obtaining employment as the School District Superintendent. Genard, Advice 05 -605
recognized the potential for such questions. However, the aforesaid Commission
precedents appear to have placed the appointment /rehiring of a former public
official /public employee to a public office or position of public employment with the
former governmental body beyond the ambit of the Section 1103(g) restrictions.
Therefore, you are advised that following Dr. Arnold's resignation from the position of
Binder Heath /Arnold, 06 -568
June 15, 2006
Page 6
School Director, Section 1103(g) of the Ethics Act would not prohibit Dr. Arnold from
submitting an application and pursuing employment as to the position of School District
Superintendent.
Following his resignation from the position of School Director, if Dr. Arnold would
be appointed School District Superintendent, he would in that capacity once again
become subject to the Ethics Act, and Section 1103(g) of the Ethics Act would cease to
apply to him with respect to the School District. If Dr. Arnold would not resume status
as a public official /public employee as to the School District, Section 1103(g) of the
Ethics Act would apply to restrict him for the full one -year period following his
resignation from the position of School Director.
Based upon the facts that have been submitted, this Advice has addressed the
applicability of Sections 1103(a), 1103(g), and 1103(j) of the Ethics Act only. It is
expressly assumed that there has been no use of authority of office for a private
pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further, you are
advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no
person shall offer to a public official /public employee 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.
Lastly, 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, which provides in part:
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 [sic]
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
Binder Heath /Arnold, 06 -568
June 15, 2006
Page 7
Act.
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).
The State Ethics Commission does not have the statutory authority to interpret
the Public School Code. Therefore, it is recommended that Dr. Arnold obtain legal
advice in that regard.
Conclusion: As a School Director with Forbes Road School District ( "School District "),
Dr. Merrill S. Arnold would be considered a "public official" 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 Dr. Arnold from using the authority of
his current public position as a School Director or confidential information received by
being a School Director to advance an opportunity of employment with the School
District. In his capacity as a School Director, Dr. Arnold would generally have a conflict
of interest in matters pertaining to the hiring of a School District Superintendent given
his intention to apply for the position. In each instance of a conflict of interest, Dr.
Arnold would be required to abstain fully and to fully satisfy the disclosure requirements
of Section 1103(j) of the Ethics Act. Conditioned upon the assumption that there would
be no use of the authority of Dr. Arnold's public position or confidential information
received by being in such position to advance the prospects of his obtaining
employment as School District Superintendent, Dr. Arnold's acceptance of employment
in that position would not transgress Section 1103(a) of the Ethics Act. If Dr. Arnold's
resignation from the position of School Director would occur contemporaneously with
his assumption of the position of School District Superintendent, Dr. Arnold would not
become a former public official /public employee as to the School District, and Section
1103(g) of the Ethics Act would not apply to Dr. Arnold insofar as the School District
would be concerned. If there would be a hiatus between Dr. Arnold's service as a
School Director and as Superintendent for the School District, upon termination of
service as a School Director, Dr. Arnold would become a "former public official" subject
to Section 1103(g) of the Ethics Act. The former governmental body would be the
School District in its entirety. The restrictions of Section 1103(g) of the Ethics Act as
outlined above would have to be followed by Dr. Arnold during such times that he would
be a former public official. Section 1103(g) of the Ethics Act does not prohibit the
appointment /rehiring of a former public official /public employee to a public office or
position of public employment with the former governmental body. Following Dr.
Arnold's resignation from the position of School Director, Section 1103(g) of the Ethics
Act would not prohibit Dr. Arnold from submitting an application and pursuing
employment as to the position of School District Superintendent. If Dr. Arnold would be
appointed School District Superintendent, he would in that capacity once again become
subject to the Ethics Act, and Section 1103(g) of the Ethics Act would cease to apply to
him with respect to the School District. If r. Arnold would not resume status as a
public official /public employee as to the School District, Section 1103(g) of the Ethics
Act would apply to restrict him for the full one -year period following his resignation from
the position of School Director.
The propriety of the proposed conduct has only been addressed under the Ethics
Further, should service be terminated, as outlined above, the Ethics Act would
require that a Statement of Financial Interests be filed by no later than May 1 of the year
after termination of service.
Pursuant to Section 1107(11), an Advice is a complete defense in any
enforcement proceeding initiated by the Commission, and evidence of good faith
Binder Heath /Arnold, 06 -568
June 15, 2006
Page 8
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