HomeMy WebLinkAbout07-002 DOBROWOLSKII. ISSUE:
OPINION OF THE COMMISSION
Sandra Dobrowolski
69 Valley View Drive
Hunlock Creek, PA 18621
Dear Ms. Dobrowolski:
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Paul M. Henry
Raquel K. Bergen
Nicholas A. Colafella
Reverend Scott Pilarz
DATE DECIDED: 1/9/07
DATE MAILED: 1/23/07
This Opinion is issued in response to the appeal of Advice of Counsel, 06- 546 -S,
which was issued on May 23, 2006.
Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §
1101 et seq., would impose any prohibitions or restrictions upon an individual with
regard to serving as the transportation coordinator /clerk for a school district when the
individual and /or her immediate family members own /operate or are employed by a
business that contracts with the school district to provide student transportation
services.
II. FACTUAL BASIS FOR DETERMINATION:
07 -002
By faxed letter dated June 22, 2006, you appealed Advice of Counsel, 06 -546 -S
issued May 23, 2006.
In your initial letter dated March 15, 2006, requesting an advisory, you presented
the following material facts.
You stated that you had recently been hired, contingent on this Commission's
assessment, as Transportation Coordinator for the Lake - Lehman School District
( "District "). You stated that the Transportation Coordinator position is covered by the
support staff contract and does not involve any type of management decisions.
Dobrowolski, 07 -002
January 23, 2007
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In your private capacity, you contractually provide student transportation services
to the District utilizing vans. You provide such services to the District through a
business that you own and operate with your adult children. You have provided such
services to the District since 1987.
The duties of the District's 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 your
advisory request letter, you suggested that in addition to the above approval process for
busing routes, other safeguards could be established, such as, for example, requiring
that any changes to existing routes that would benefit you or your immediate family
members be justified in writing demonstrating that the change would be the best
financial alternative for the District.
Dobrowolski, Advice of Counsel, 06 -546 determined that as the District's
Transportation Coordinator, you would be a public employee subject to the provisions of
the Ethics Act. The Advice noted that as Transportation Coordinator, you would be
making initial determinations setting bus routes and assigning students, which
determinations, when approved, would financially impact your private transportation
business. Citing Johnson, Opinion 86 -004, Fletcher, Opinion 89 -018, McConahy,
Opinion 96 -006, and McCain, Opinion 02 -009, Advice of Counsel, 06 -546 determined
that Section 1103(a) of the Ethics Act would prohibit you from serving as the District's
Transportation Coordinator when you have a business that contracts with the District to
provide student busing services for the District.
By letter dated April 18, 2006, you sought further guidance based upon the
following additional information. You stated that your contract with the District is limited
to providing van service, specifically, four van runs. You further stated that the District
runs 46 buses and 13 vans and that van service is a very small part of the District's
transportation department. You asked whether it would be possible for you to serve as
the District's Transportation Coordinator provided: (1) you would divert the business to
your adult children; and /or (2) another 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, Advice of Counsel, 06 -546 -S incorporated by reference the base
advice, Dobrowolski, Advice of Counsel, 06 -546. In addressing your additional
questions, Dobrowolski, Advice of Counsel, 06 -546 -S held that your proposed action of
diverting your private transportation business to your adult children and /or having
another District employee take responsibility for determining all van routes while you
would deal with what you characterized as the day -to -day operations for van runs,
would not change the result reached in the base advice. Advice of Counsel, 06 -546 -S
determined that 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. The Advice of
Counsel further concluded that even if your duties relative to van contracts would be
delegated to another District employee, you would still have a conflict of interest in
matters relating to buses, such as for example, changing a bus route to a van route. As
for the day -to -day duties relative to vans, the Advice of Counsel determined that 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, and that 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
Dobrowolski, 07 -002
January 23, 2007
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pecuniary benefit to your /your children's transportation business through a detriment to a
business competitor.
By letter dated June 22, 2006, you appealed Advice of Counsel 06- 546 -S. Your
appeal letter did not state any particular basis for the appeal, but merely exercised the
right to appeal the Advice of Counsel.
By letter dated September 13, 2006, you posed a new question, specifically,
whether you would have a conflict of interest under the Ethics Act in serving as the
District's Transportation Coordinator if you would sell your van transportation business
to a disinterested party in an arms length transaction and the new owner would hire
your two daughters and your son -in -law as employees. By letter dated September 15,
2006, this Commission's Chief Counsel informed you that your new question would be
submitted to this Commission together with the Appeal of Advice of Counsel 06- 546 -S.
Chief Counsel stated that this Commission could consider the new question but would
not be required to do so at this time because, pursuant to Commission Regulations, the
new question would be considered a request for supplemental advice. 51 Pa. Code §
13.2(f).
On September 22, 2006, this Commission received from you a faxed
transmission, which included a letter from you dated September 22, 2006, and a letter
from Richard A. Bombick ( "Bombick "), the District Business Manager, dated September
19, 2006. In your letter you stated that your current contract with the District for student
van transportation services became effective August 2005. The contract continues
through June 2010. The District's payments to you for van transportation services have
dropped in recent years from $191,000 for five van routes in 2003 -2004 to $138,553.16
for four van routes in 2005 -2006. For the current school year, your company has only
three van routes. You stated that you are willing to sell your business, but your adult
children rely on the business for their income. You further stated that if you obtain a
transportation contract with another school district, you will ask the District to release
you from your current transportation contract.
Bombick's letter included facts not previously submitted. Bombick stated that
your van service provides transportation for special needs children of the District.
Bombick further stated that the selection process for the use of vans begins with a
Transportation Committee of the School Board, which has established a seniority listing
of all van operators and the order in which they will be used. The Transportation
Coordinator works through this listing in supplying van service for transportation
requests. Bombick also reiterated some of the facts that you had already submitted.
Bombick stated that in essence, the District's Transportation Coordinator position has a
Job classification of clerk status with no management decision - making responsibilities.
Bombick stated that prior to School Board review, the van runs are reviewed by the
Business Manager and Superintendent. Bombick asserted that the controls of the
selection process ultimately prevent any conflict of interest.
At the public meeting on October 5, 2006, you appeared and offered
commentary, which may be fairly summarized as follows.
You stated that the School Board recently specified that the position you hold is a
clerk position and not a coordinator position. This clarification by the School Board
occurred after you had received the aforesaid Advice from this Commission's Chief
Counsel. You began serving as the District's Transportation Clerk approximately two
years ago. You serve in this capacity as a consultant rather than as a District
employee. You are paid at an hourly rate, and you receive a 1099 form from the District
for tax purposes.
Dobrowolski, 07 -002
January 23, 2007
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As Transportation Clerk, you assign students who travel by bus to particular bus
routes. Likewise, for van transportation, you assign children to particular van routes
based upon factors such as location and the timing of the schools the children attend.
You provide this information to the Business Manager. You stated that you do not
decide which contractors receive which routes. The Business Manager assigns the van
routes among seven contractors based upon the aforesaid seniority list. There are two
or three van contractors with more seniority than you have.
You claimed that the Transportation Clerk is a clerical position without any
authority. You stated that anything that is done in the Transportation Department must
go before the Business Manager, the Superintendent, and ultimately the School Board
for final approval. You stated that although you can recommend changes in routes,
there is no possibility that a change in routes, if accepted, could benefit your company.
You stated that the compensation for the van runs is set according to a state
formula. If a van breaks down such that the contractor is unable to transport the
children assigned to that van, you must find another contractor to transport the children.
You stated that usually the contractor who fills in does not receive extra compensation,
but rather, performs such service as a courtesy.
The District has a job description for the employee position you seek to hold.
You stated that you were not involved in drafting that document.
Finally, you stated that none of your competitors have expressed any problem
with you serving as the District's Transportation Clerk.
At the close of your presentation at the October 5, 2006, public meeting, we
deferred this matter pending receipt of additional information, specifically: (1) a copy of
the District's formal job description for the transportation coordinator /clerk employee
position, which job description was to be forwarded by the District directly to this
Commission's Chief Counsel; and (2) information pertaining to the structure of the
District's contracts and compensation for van runs.
By letter dated November 16, 2006, you submitted a copy of the District's
position description for the transportation coordinator /clerk employee position, which
position description is incorporated herein by reference. According to the position
description, the position title is "Secretarial /Clerical- Business Office Staff [Emphasis in
the areas of transportation, federal programs bookkeeping, athletic and activity funds
record keeping]." At this juncture, we note that for purposes of this advisory Opinion,
the aforesaid position title as stated on the position description and the titles
"Transportation Coordinator," "Transportation Clerk," and "Transportation
Coordinator /Clerk" are interchangeable and all refer to the single District position that
you presently hold as a consultant and that you seek to hold in the future as a District
employee. For purposes of consistency, the position is hereinafter referred to as
"District Transportation Coordinator /Clerk."
Per the position description, the specific authority and duties of the District
Transportation Coordinator /Clerk include, inter alia, the following:
• Developing, evaluating and administering transportation routes to meet the
needs of public, non-public and special education students in order to maximize
safety, efficiency, and cost savings;
• Preparing contracts for approved transportation routes;
• Arranging transportation for student activities in cooperation with the principals
and athletic director;
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January 23, 2007
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• Maintaining records and preparing reports required by the Pennsylvania
Department of Education (DOE");
• Responding to transportation - related problems;
• Functioning as the contact /liaison for the District with Intermediate Unit #18 and
DOE regarding transportation;
• Enforcing established policies and recommending adoption and revision of
transportation - related policies;
• Preparing all Federal Program Budgets for submission to DOE;
• Reviewing all requisitions for purchases from Federal Program Funds;
• Receiving and accounting for all Federal Programs purchases;
• Maintaining inventory of Federal Program supplies;
• Maintaining appropriate accounting records for all Federal Programs;
• Preparing and filing required quarterly cash reconciliations, reports, letters and
other applicable documents; and
• Performing internal audits on Building Level Activity Funds.
In your letter dated November 16, 2006, you reiterated that the District pays van
contractors strictly according to the Pennsylvania State Reimbursement Formula. You
submitted a sample "Contracted Carrier Reimbursement Computation." You also stated
that without approval of the Board of Directors Transportation Committee, no van /car
could be added to the vans /cars presently providing District transportation. You stated
that should a new student need to be added to a route, the following factors would be
taken into consideration: the proximity of the student's home and /or school to the
contractor's home or place of business; whether a current contractor was already
transporting to the school in question; time schedules; seat availability; contractor
seniority; and cost to the District. You asserted that as District Transportation
Coordinator /Clerk, you would not have any influence regarding which contractors would
get additional students or routes.
At the public meeting on January 9, 2007, you appeared together with the
District's new Superintendent, Mr. James McGovern, and offered commentary, which
may be fairly summarized as follows.
You stated that the accurate title for the position in question is "Transportation
Clerk." You submitted a copy of a "Nisi Order of Unit Clarification" dated October 19,
2006, from the Pennsylvania Labor Relations Board under Case Number PERA -U -06-
249-E, which document refers to the position as "Transportation Clerk." You reiterated
that anything that is done by the Transportation Clerk must be approved through various
persons within the District.
Both you and Mr. McGovern stated that the job description that you most recently
provided to this Commission is the accurate job description for the Transportation Clerk
position.
Mr. McGovern stated that the Transportation Clerk position is a non - managerial,
support staff union position. Mr. McGovern indicated that District support staff does not
Dobrowolski, 07 -002
January 23, 2007
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make decisions, and that there are multiple levels of review above the Transportation
Clerk.
III. 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 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, this Commission may not issue an
opinion /advice, but any person may then submit a signed and sworn complaint, which
will be investigated by this 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.
It is clear that upon assuming employment as the District Transportation
Coordinator /Clerk, you would become a "public employee" as that term is defined in the
Ethics Act and Regulations of this Commission. The Ethics Act defines the term "public
employee" as follows:
§ 1102. Definitions
"Public employee." Any individual employed by the
Commonwealth or a political subdivision who is responsible
for taking or recommending official action of a nonministerial
nature with regard to:
(1) contracting or procurement;
(2) administering or monitoring grants or subsidies;
(3) planning or zoning;
(4) inspecting, licensing, regulating or auditing any
person; or
(5) any other activity where the official action has an
economic impact of greater than a de minimis nature
on the interests of any person.
The term shall not include individuals who are employed by
this Commonwealth or any political subdivision thereof in
teaching as distinguished from administrative duties.
65 Pa.C.S. § 1102. The Regulations of this Commission similarly define the term
"public employee" and set forth the following additional criteria:
(ii) The following criteria will be used, in part, to
determine whether an individual is within the definition of
"public employe ":
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January 23, 2007
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(A) The individual normally performs his responsibility
in the field without onsite supervision.
(B) The individual is the immediate supervisor of a
person who normally performs his responsibility in the field
without onsite supervision.
(C) The individual is the supervisor of a highest level
field office.
(D) The individual has the authority to make final
decisions.
(E) The individual has the authority to forward or
stop recommendations from being sent to the person or
body with the authority to make final decisions.
(F) The individual prepares or supervises the
preparation of final recommendations.
(G) The individual makes final technical recommen-
dations.
(H) The individual's recommendations or actions are
an inherent and recurring part of his position.
(1) The individual's recommendations or actions
affect organizations other than his own organization.
(iii) The term does not include individuals who are
employed by the Commonwealth or a political subdivision of
the Commonwealth in teaching as distinguished from
administrative duties.
(iv) Persons in the following positions are generally
considered public employes:
(A) Executive and special directors or assistants
reporting directly to the agency head or governing body.
(B) Commonwealth bureau directors, division chiefs
or heads of equivalent organization elements and other
governmental body department heads.
(C) Staff attorneys engaged in representing the
department, agency or other governmental bodies.
(D) Engineers, managers and secretary- treasurers
acting as managers, police chiefs, chief clerks, chief purchasing
agents, grant and contract managers, administrative officers,
housing and building inspectors, investigators, auditors, sewer
enforcement officers and zoning officers in all governmental
bodies.
(E) Court administrators, assistants for fiscal affairs
and deputies for the minor judiciary.
(F) School superintendents, assistant superintendents,
school business managers and principals.
Dobrowolski, 07 -002
January 23, 2007
Page 8 of 10
(G) Persons who report directly to heads of
executive, legislative and independent agencies, boards and
commissions except clerical personnel.
(v) Persons in the following positions are generally
not considered public employes:
(A) City clerks, other clerical staff, road masters,
secretaries, police officers, maintenance workers, construction
workers, equipment operators and recreation directors.
(B) Law clerks, court criers, court reporters, probation
officers, security guards and writ servers.
(C) School teachers and clerks of the schools.
51 Pa. Code § 11.1.
Status as a "public employee" subject to the Ethics Act is determined by an
objective test. The objective test applies the Ethics Act's definition of the term "public
employee" and the related regulatory criteria to the powers and duties of the position
itself. Typically, the powers and duties of the position are established by objective
sources that define the position, such as the job description, job classification
specifications, and organizational chart. The objective test considers what an individual
has the authority to do in a given position based upon these objective sources, rather
than the variable functions that the individual may actually perform in the position. See,
Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Reese /Gilliland,
Opinion 05 -005; Eiben, Opinion 04 -002; Shienvold, Opinion 04 -001; Shearer, Opinion 03-
011. The Commonwealth Court of Pennsylvania has specifically considered and
approved this Commission's objective test and has directed that coverage under the
Ethics Act be construed broadly and that exclusions under the Ethics Act be construed
narrowly. See, Phillips, supra.
When reviewed on an objective basis, the submitted position description for the
District Transportation Coordinator /Clerk indicates clearly that the position includes
authority to take or recommend official action of a non - ministerial nature with respect to
contracting, procurement, and other activities where the economic impact is greater
than de minimis on the interests of another person. (See, 65 Pa.C.S. § 1102 (definition
of "public employee "); 51 Pa. Code § 11.1 (definition of "public employee ")). The
necessary conclusion is that upon assuming employment as the District Transportation
Coordinator /Clerk, you would become a "public employee" subject to the provisions of
the Ethics Act.
We note that the relevant provisions of the Ethics Act were accurately set forth in
Advice 06 -546. We incorporate those provisions herein by reference.
In applying the 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. Your daughters are members of
your immediate family. (65 Pa.C.S. § 1102 (definition of "immediate family ")). Any
business as to which you are a director, officer, owner, employee or holder of a financial
interest is a business with which you are associated. (65 Pa.C.S. § 1102 (definition of
"business with which he is associated ")). Any business as to which an immediate family
member is a director, officer, owner, employee or holder of a financial interest is a
business with which the immediate family member is associated. (65 Pa.C.S. § 1102
(definition of "business with which he is associated ")).
Dobrowolski, 07 -002
January 23, 2007
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In reviewing Advice of Counsel 06- 546 -S, we agree with the Advice that Section
1103(a) of the Ethics Act would generally prohibit an individual from being employed as
the District Transportation Coordinator /Clerk while the individual, her immediate family
member(s), or any business with which the individual or her immediate family
members would be associated would contractually provide student transportation
services to the District. See, Johnson, Opinion 86-004; Fletcher, Opinion 89 -018;
McConahy, Opinion 96 -006; McCain, Opinion 02 -009.
However, a significant new fact has been submitted that necessitates a modified
result. Specifically, it is now clear that the only services provided to the District by your
business are van transportation services for special needs students. In light of the
limited nature of the services provided by your business to the District, the apparent lack
of competition between your van transportation business and the District's bus
contractors, and the feasibility of the District's reallocation of the van - related portion of
your duties to other person(s), we determine that Section 1103(a) of the Ethics Act
would not prohibit you from being employed as the District Transportation
Coordinator /Clerk where all of the following conditions would be satisfied: (1) the
contractual services provided to the District by you, your immediate family members,
and /or any business with which you or your immediate family members would be
associated would be strictly limited to van transportation services for special needs
students, such that the services would not be expanded under any circumstances; (2)
the District, through the School Board, Superintendent, or Business Manager, would
reallocate all matters and work involving van transportation services within the District to
persons who would not be subordinates within your chain of command; and (3) there
would be no means by which you could use the authority of the position as District
Transportation Coordinator /Clerk or confidential information accessed as a result of
being in that position for the private pecuniary benefit of yourself, your immediate family
members, or any business with which you or your immediate family members would be
associated. You are reminded that upon accepting employment as the District
Transportation Coordinator /Clerk, you would become a public employee subject to the
full range of restrictions and requirements of the Ethics Act that are applicable to public
employees, including but not limited to Sections 1103(a) and 1103(j) (pertaining to
conflicts of interest), Section 1103(f) (pertaining to contracting), and Sections 1104 and
1105 (pertaining to Statements of Financial Interests).
Advice of Counsel, 06 -546 -S is modified as set forth herein.
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.
IV. CONCLUSION:
An individual employed as a school district "transportation coordinator /clerk,"
whose functions would include making decisions or recommendations as to setting up
bus or van routes, assigning students to buses or vans contracted by the school district,
preparing contracts for approved transportation routes, and handling day -to -day
operations including fielding complaints, would be considered 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 generally prohibit an
individual from being employed as a school district transportation coordinator /clerk while
the individual, her immediate family members, or a business with which she or her
immediate family members would be associated would contractually provide student
transportation services to the school district. However, Section 1103(a) of the Ethics
Act would not prohibit such an individual from being employed as the school district's
Dobrowolski, 07 -002
January 23, 2007
Page 10 of 10
transportation coordinator /clerk where all of the following conditions would be satisfied:
(1) the contractual services provided to the school district by the individual, the
individual's immediate family members, and /or any business with which the individual or
her immediate family members would be associated would be strictly limited to van
transportation services for special needs students, such that the services would not be
expanded under any circumstances; (2) the school district, through the school board,
superintendent, or business manager, would reallocate all matters and work involving
van transportation services within the school district to persons who would not be
subordinates within the chain of command of the individual in question; and (3) there
would be no means by which the individual as school district transportation
coordinator /clerk could use the authority of that position or confidential information
accessed as a result of being in that position for the private pecuniary benefit of herself,
her immediate family members, or any business with which she or her immediate family
members would be associated. Advice of Counsel, 06 -546 -S is modified as set forth
above.
Act.
The propriety of the proposed conduct has only been addressed under the Ethics
Pursuant to Section 1107(10) of the Ethics Act, the person who acts in good faith
on this Opinion issued to him shall not be subject to criminal or civil penalties for so
acting provided the material facts are as stated in the request.
This letter is a public record and will be made available as such.
Finally, a party may request the Commission to reconsider its Opinion. The
reconsideration request must be received at this Commission within thirty days of the
mailing date of this Opinion. The party requesting reconsideration must include a
detailed explanation of the reasons as to why reconsideration should be granted in
conformity with 51 Pa. Code § 21.29(b).
By the Commission,
Louis W. Fryman
Chair