HomeMy WebLinkAbout07-513 GehmanJohn L. Gehman
3243 Gehman Road
Barto, PA 19504
Dear Mr. Gehman:
ADVICE OF COUNSEL
March 2, 2007
07 -513
This responds to your letter of January 20, 2007, by which you requested an
advisory from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa. .S. § 1101 et seq., would present any prohibitions or restrictions upon a school
director, who is also an athletic official for the Pennsylvania Interscholastic Athletic
Association, with regard to receiving payment(s) from his school district for officiating
athletic contests held on the school district's home field.
Facts: You are a School Director for the Upper Perkiomen School District
(" chool District "). You are also an athletic official for the Pennsylvania Interscholastic
Athletic Association "PIAA "). You state that you might be assigned by the PIAA's
central assignor to referee athletic contests held on the School District's home field. As
with all contests that you officiate outside of the School District, you would request fees
from the School District for your services, consistent with the pre - established league -
wide fee structure.
Per the submitted facts, to the extent you would be assigned by PIAA to officiate
athletic contest(s) held on the School District's home field, your business transaction(s)
would be directly with the School District, such that you would request and receive
compensation directly from the School District.
You ask whether you would transgress the Ethics Act by receiving payment from
the School District for services that you would render as an athletic official assigned by
the PIAA to an athletic contest held on the School District's home field. You specifically
ask whether, pursuant to the Ethics Act, your receipt of such payment(s) would be
considered: (1) accepting improper influence; (2) a prohibited honorarium; or (3) a
prohibited contract.
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
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March 2, 2007
Page 2
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, 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 that your inquiries relate to
conduct that has already occurred, such past conduct may not be addressed in the
context of an advisory opinion. However, to the extent that your inquiries relate to future
conduct, your inquiries may and shall be addressed
As a School Director, you are a public official subject to the provisions of the
Ethics Act. 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 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
Gehman, 07 -513
March 2, 2007
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.
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 statutory definition of "conflict" or "conflict of interest" includes two
exclusions, hereinafter referred to as the "de minimis" exclusion and the "class /subclass
exclusion." The de minimis exclusion precludes a finding of conflict of interest as to an
action having a de minimis (insignificant) economic impact. See, Kolb, Order 1322;
Schweinsburq, Order 900. In order for the class /subclass exclusion to apply, two
criteria must be met: (1) the affected public official /public employee, immediate family
member, or business with which the public official /public employee or immediate family
member is associated must be a member of a class consisting of the general public or a
true subclass consisting of more than one member; and (2) the public official /public
employee, immediate family member, or business with which the public official /public
employee or immediate family member is associated must be affected "to the same
degree" in no way differently) than the other members of the class /subclass. 65
Pa.C.S. 1102; see, Kablack, Opinion 02 -003; Graham, Opinion 95 -002 (citing Van
Rensler, pinion 90 -017); Rubenstein, Opinion 01 -007.
In each instance of a conflict of interest, Section 1103(] of the Ethics Act requires
the public official /public employee 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. The abstention requirement 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 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.
Sections 1103(b) and 1103(c) of the Ethics Act, pertaining to improper influence,
provide as follows:
§ 1103. Restricted activities
(b) Seeking improper influence. —No person shall
offer or give to a public official, public employee or nominee
or candidate for public office or a member of his immediate
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March 2, 2007
Page 4
family or a business with which he is associated, anything of
monetary value, including a gift, loan, political contribution,
reward or promise of future employment based on the
offeror's or donor's understanding that the vote, official
action or judgment of the public official or public employee or
nominee or candidate for public office would be influenced
thereby.
(c) Accepting improper influence. —No public
official, public employee or nominee or candidate for public
office shall solicit or accept anything of monetary value,
including a gift, loan, political contribution, reward or promise
of future employment, based on any understanding of that
public official, public employee or nominee that the vote,
official action or judgment of the public official or public
employee or nominee or candidate for public office would be
influenced thereby.
65 Pa.C.S. §§ 1103(b), (c).
The term "person" is defined in the Ethics Act as follows:
§ 1102. Definitions
"Person." A business, governmental body,
individual, corporation, union, association, firm, partnership,
committee, club or other organization or group of persons.
65 Pa.C.S. § 1102.
Section 1103(d) of the Ethics Act provides:
§1103. Restricted activities
(d) Honorarium. —No public official or public
employee shall accept an honorarium.
65 Pa.C.S. §1103(d).
The term "honorarium" is defined in the Ethics Act as follows:
§1102. Definitions
"Honorarium." Payment made in recognition of
published works, appearances, speeches and presentations
and which is not intended as consideration for the value of
such services which are nonpublic occupational or
professional in nature. The term does not include tokens
presented or provided which are of de minimis economic
impact.
65 Pa.C.S. §1102 (Emphasis added).
Section 1103(f) of the Ethics Act provides as follows:
§ 1103. Restricted activities
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March 2, 2007
Page 5
(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.
65 Pa.C.S. § 1103(f).
The following terms pertaining to Section 1103(f) are defined in the Ethics Act as
follows:
§ 1102. Definitions
"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.
"Governmental body." Any department, authority,
commission, committee, council, board, bureau, division,
service, office, officer, administration, legislative body, or
other establishment in the executive, legislative or judicial
branch of a state, a nation or a political subdivision thereof or
any agency performing a governmental function.
"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.
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
Gehman, 07 -513
March 2, 2007
Page 6
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)
(2)
(3)
(4)
prior public notice of the employment or contracting possibility;
sufficient time for a reasonable and prudent competitor /applicant to be
able to prepare and present an application or proposal;
public disclosure of all applications or proposals considered; and
public disclosure of the contract awarded and offered and accepted.
Section 1103(f) of the Ethics Act also requires that the public official /public
employee may not have any supervisory or overall responsibility as to the
implementation or administration of the contract with the governmental body.
Having set forth the above provisions of the Ethics Act about which you have
inquired, it is noted that the State Ethics Commission, in the exercise of its jurisdiction,
is limited to making determinations under the Ethics Act. However, in issuing advisories
under the Ethics Act, it is necessary at times to review other laws to determine whether
a particular benefit would be unauthorized, so that it may be determined whether a
public official /public employee would be receiving a private pecuniary benefit contrary to
the Ethics Act.
It is noted that because school directors are not compensated, you do not
receive compensation for holding public office. Therefore, the only financial benefit at
issue as to your inquiry would be the compensation you would receive from the School
District in your private capacity as a PIAA athletic official.
In the instant matter, it is administratively noted that Section 3- 324(a) of the
Public School Code of 1949, as amended ( "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
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March 2, 2007
Page 7
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).
On its face, Section 3- 324(a) of the Public School Code specifically prohibits a
school director, during the term for which he was elected or appointed, from receiving
from the school district in which he is elected or appointed any pay for services
rendered to the school district.
You are advised that if during your term as School Director ou would use the
authority of your public office with relation to receiving payment(s) from the School
District for rendering services as an athletic official for contests held on the School
District's home field, you would be using the authority of your public office for a
prohibited private pecuniary benefit. Cf., Paucke, Opinion 02 -002. You are advised that
subject to the statutory exclusions to the definition of "conflict" or "conflict of interest,"
you would have a conflict of interest pursuant to Section 1103(a) of the Ethics Act in
using the authority of your public office as School Director with relation to payment(s)
from the School District for your services as a PIAA athletic official.
Turning to your other specific inquiries, you ask whether your receipt of
payment(s) from the School District for rendering services as an athletic official would
be considered: (1) accepting improper influence; (2) a prohibited honorarium; or (3) a
prohibited contract.
You are advised that absent an improper understanding that your vote, official
action, or judgment as a School Director would be influenced thereby, your receipt of
fees as an athletic official would not transgress Sections 1103(b) and 1103(c) of the
Ethics Act.
Based upon the submitted fact that your fees as an athletic official for contests at
the School District's home field would be consistent with the pre - established league
wide fee structure, and the obvious fact that such services would be nonpublic
occupational or professional in nature, you are advised that your acceptance of such
fees would not transgress Section 1103(d) of the Ethics Act because such payments
would not constitute honoraria. See, Fiorello, Order 1363; Confidential Opinion, 01 -001.
As for whether your provision of such services for a fee would constitute a
prohibited contract under Section 1103(f) of the Ethics Act, as noted above, Section
1103(f) does not operate to make contracting with the governmental body permissible
where it is otherwise prohibited. However, the restrictions of Section 1103(f) address
contracting procedures and the conduct of public officials /public employees in their
public capacities where contracting /subcontracting occurs as otherwise permitted. The
requirements of Section 1103(f) of the Ethics Act would have to be observed whenever
applicable.
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.
Gehman, 07 -513
March 2, 2007
Page 8
Conclusion: As a School Director for the Upper Perkiomen School District
( "School District "), you are a public official subject to the provisions of the Public Official
and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. On its face, Section
3- 324(a) of the Public School Code of 1949, 24 P.S. § 3- 324(a), prohibits a school
director, during the term for which he was elected or appointed, from receiving from the
school district in which he is elected or appointed any pay for services rendered to the
school district. Subject to the statutory exclusions to the definition of "conflict" or
"conflict of interest," you would have a conflict of interest pursuant to Section 1103(a) of
the Ethics Act in using the authority of your public office as School Director with relation
to payment(s) from the School District for your services as a PIAA athletic official.
Absent an improper understanding that your vote, official action, or judgment as a
School Director would be influenced thereby, your receipt of fees as an athletic official
would not transgress Sections 1103(b) and 1103(c) of the Ethics Act. Based upon the
submitted fact that your fees as an athletic official for contests at the School District's
home field would be consistent with the pre - established league wide fee structure, and
the obvious fact that such services would be nonpublic occupational or professional in
nature, you are advised that your acceptance of such fees would not transgress Section
1103(d) of the Ethics Act because such payments would not constitute honoraria.
Section 1103(f) of the Ethics Act does not operate to make contracting with the
governmental body permissible where it is otherwise prohibited. The restrictions of
Section 1103(f) address contracting procedures and the conduct of public officials /public
employees in their public capacities where contracting /sub - contracting occurs as
otherwise permitted. The requirements of Section 1103(f) of the Ethics Act would have
to be observed whenever applicable.
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,
Robin M. Hittie
Chief Counsel