Conflict of Interest – Part 3

Appointed Officials

 

As seen in the two previous blog posts, the Pennsylvania “Ethics Act” employs a definition of “Conflict of Interest” that is so weak and narrow—compared to the dictionary definition of the term—that few of Pennsylvania’s elected officials are likely to be dissuaded, much less indicted, by its feeble provisions.  

 

On the contrary, a case can be made that the current wording of the term “conflict of interest” in the Pennsylvania Ethics Act actually provides incentives for elected officials who engage in common parlance conflicts of interest to compound the financial penalty on taxpayers by simply playing the “get-out-of-jail-free” card by including other ‘subclasses’ as beneficiaries of their conflicted behavior.

Not surprisingly, Pennsylvania’s appointed public officials are held to the same low standard by the Ethics Act as are its elected public officials.  As a result, the only hope for an effective limit being placed on the potential mischief otherwise available to an ethically-challenged appointed public official would have to come from the specific bylaws under which a particular public agency operates.

 

That is, in the absence of an effective ethics law, strong ethical limits could only occur if each public entity were to voluntarily adopt them—an outcome which is not impossible, but very unlikely.  This forlorn hope, in fact, is cited in section § 1111 - Supplemental provisions, of the Ethics Act:  

Any governmental body may adopt requirements to supplement this chapter, provided that no such requirements shall in any way be less restrictive than the chapter.

 

Under the specific language of Act 188, with its frequent use of the verb “shall,” the PASSHE Board of Governors is clearly required to follow the law’s provisions.  Certain of those provisions require the BOG to create policies for itself that reflect specific provisions in the law.  And, over the years and under Boards with differing membership, the BOG has largely complied with the law in that regard. 

 

But examples also exist in which the PASSHE BOG—after complying with the legal requirements by creating key policies aligned with the law—has been seen brazenly ignoring those very same policies.

Consider, e.g., BOG Policy 1989-05-A: Student Fees, from which the following quotes are taken: 

Fee - A fixed charge established by a council of trustees or university president, according to authorities under Act 188 of 1982, to recover costs of certain services, materials, or activities provided. (Emphasis added.)

Tuition - The basic fee established by the Board of Governors for rendering educational services, as enumerated in Act 188 of 1982. Also, the technology tuition fee, a separate tuition fee established by the Board of Governors for rendering technology resources and services to enhance student learning experiences. (Emphasis added.)

 

After citing the above two definitions, which make it clear that fees are to be set by councils of trustees, and tuition is to be set by the Board of Governors, exactly as specified in Act 188, the BOG then goes on first to reaffirm—and then to ignore—that clear distinction in its policy statement, as seen below:

 

C.  Policy

1.   As enumerated in Act 188 of 1982, the councils of trustees may establish university fees. The councils of trustees may establish a mandatory instructional fee to support the educational mission of the university. The instructional fee assessable to a student shall be limited to tuition as follows: (Emphasis added.)

                               a.  Baccalaureate Degree - 10%

b.  Master’s Degree - 15%

c.  Graduate Professional Programs - 20%

d.  Doctoral Degree - 20%

 

Specifically, the policy then goes on to defy Act 188 and impose BOG limits on the fees that councils of trustees may set.  Not coincidentally, such an outcome—despite the law—has been a personal interest of recent Commonwealth governors.

 

But, unfortunately, for some key members of the Board of Governors for whom what’s best for their political patron, the Governor, quickly becomes what’s best for them, the Governor’s personal interest soon becomes theirs as well, often taking precedence over their official duties (to the students as called for in Act 188) as persons in a position of trust.  This is the very essence of the dictionary definition of a conflict of interest.

 

In short, the conflict of interest faced by appointees to the PASSHE Board of Governors stems from the problem of divided loyalties—represented by the Governor on the one hand (the person who first nominates appointees, and who may, or may not nominate them for another term), and the PASSHE students (most of whom the appointee never meets nor will ever be required to answer to) on the other.

And, of the two, whose interests are more likely to be neglected in this situation?