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HomeMy WebLinkAbout08-541 SparePhilip H. Spare, Esquire Stock and Leader Susquehanna Commerce Center East 221 W. Philadelphia Street -Suite 600 York, PA 17401 -2994 ADVICE OF COUNSEL April 22, 2008 08 -541 Dear Mr. Spare: This responds to your letters of January 30, 2008, and March 12, 2008, by which you requested advice from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 § 1101 et sect., would present any prohibitions or restrictions upon a school director, whose immediate family member is employed as one of the school district's non - unionized support staff members, with regard to the negotiation and approval of a compensation /benefit agreement between the school district and support staff, specifically with regard to: (1) attending a school board executive session to be informed as to the status of negotiations pertaining to such compensation /benefit agreement; (2) providing an opinion to school district administrators as to how such negotiations should be handled; (3) engaging in general discussions with school district administrators regarding their opinions as to making improvements or adjustments to the overall wage structure for support staff; or (4) receiving a copy of the final proposed compensation /benefit agreement prior to the vote to approve or disapprove it. Facts: As Solicitor for the Eastern York School District ( "School District "), you have been authorized by a School District School Director (hereinafter referred to as the School Director ") to request an advisory from the Pennsylvania State Ethics Commission on his /her behalf. You have submitted facts that may be fairly summarized as follows. You state that three of the nine members of the School District School Board ( "School Board "), including the School Director, have "immediate family" members who are School District employees classified as "support staff." Support staff positions within the School District include, but are not limited to: bookkeeper; school secretary; clerk; maintenance; classroom assistant; cafeteria cook; and custodian. Support staff employees are not members of an organized collective bargaining unit. Instead, representatives of support staff typically engage in discussions or negotiations with School District administrators to arrive at an agreement that is Spare, 08 -541 April 22, 2008 Page 2 documented in a support staff "Compensation /Benefit Manual" (hereinafter referred to as the Manual "), which Manual is effective for dates covering several fiscal years. You state that the current Manual is effective from July 1, 2005, through June 30, 2008. The current Manual covers such topics as personnel practices, paid leave, wage /salary ranges, compensation, pay procedures, and fringe benefits. You state that since the current Manual ceases to be effective June 30, 2008, discussions and negotiations regarding a new Manual are planned for the near future. Based upon the above submitted facts, you pose the following specific questions: 1. Whether the Commission's holding in Van Rensler, Opinion 90 -017, would be applicable to non -union situations such as the instant matter; 2. Whether the School Director would be permitted to engage in the following activities pertaining to the negotiation of a new agreement between the School District and the support staff: a. Attending an executive session to be informed as to the status of discussions or negotiations; b. Providing an opinion to School District administrators as to how discussions or negotiations should be handled; or c. Engaging in general discussions with School District administrators regarding their opinions as to making improvements or adjustments to the overall wage structure for support staff; and 3. Whether the School Director would be permitted to receive a copy of the new Manual prior to the vote to approve or disapprove the new Manual, and if so, how far in advance of the vote the School Director could receive such information. 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. As a School Director for the School District, the School Director on whose behalf you have inquired is 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 Spare, 08 -541 April 22, 2008 Page 3 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 related 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 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. "Immediate family." A parent, spouse, child, brother or sister. 65 Pa.C.S. § 1102. 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 above statutory definition of "conflict" or "conflict of interest" contains two Spare, 08 -541 April 22, 2008 Page 4 exclusions, referred to herein 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. Thus, when a matter that would otherwise constitute a conflict of interest under the Ethics Act would have an insignificant economic impact, a conflict would not exist and Section 1103(a) of the Ethics Act would not be implicated. 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, Opinion 90- 017); Rubenstein, Opinion 01 -007. The first criterion of the exclusion is satisfied where the members of the proposed subclass are similarly situated as the result of relevant shared characteristics. The second criterion of the exclusion is satisfied where the individual /business in question and the other members of the class /subclass are reasonably affected to the same degree by the proposed action. Kablack, supra. In each instance of a voting conflict, Section 1103(j) 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. 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. Pavlovic, Opinion 02- 005. In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. Pursuant to Section 1103(a) of the Ethics Act, the School Director would generally have a conflict of interest in matters before the School Board that would financially impact the School Director, a member of the School Director's "immediate family" as that term is defined in the Ethics Act, or a business with which the School Director or an immediate family member is associated. In each instance of a conflict of interest, the School Director would be required to abstain fully from participation. The abstention requirement would not be limited to voting, but rather, would extend to any use of authority of office, such as discussing, conferring with others, or lobbying for a particular result. See, Juliante, Order 809. In the event of a voting conflict, the School Director would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. The seminal Commission decision that applies Section 1103(a) of the Ethics Act under facts similar to those that you have submitted is Van Rensler, supra. The issue in Van Rensler was whether the Ethics Act prohibited school directors from participating on a negotiating team and voting on a collective bargaining agreement where members of their immediate families were school district employees who were represented by the bargaining units. The Commission held that the school directors could vote on the finalized agreement as long as the prerequisites for applying the class /subclass exclusion were met. However, the Commission held that the Ethics Act would preclude the participation of such school directors in the negotiation process. In so holding, the Commission noted that the negotiation process would be free of any influence of such a Spare, 08 -541 April 22, 2008 Page 5 school director and that the potential for the use of confidential information would be "minimized if not eliminated." Id. at 4 -5. Thus, a fundamental focus of the Van Rensler Opinion was precluding the use of confidential information obtained through the public office as school director to defeat the bargaining process. Mattie, Advice 91 -508, applied the Van Rensler principles to a situation where collective bargaining was taking place coincidentally with budget preparations. Per the submitted facts in Mattie, some of the budgetary information that was to be provided to the school directors would show proposed changes for total salary and fringe benefits as well as categorized information regarding proposed increases or decreases in salaries. Furthermore, information was to be provided by the negotiating team to the administration, which information would be used by the administration in preparing financial figures for the proposed budget. The Advice concluded that a school director with such a conflict could receive general financial information for the proposed budget which information did not impact upon the negotiation process with the bargaining unit. However, such a school director could not receive any financial information related to the budget which would impact upon the negotiation process with the bargaining unit, including but not limited to line -by -line items such as salaries, or specific information from which one could deduce such line -by -line items. The Mattie Advice concluded that the school director could not receive information regarding the background of negotiations or the analysis of negotiations at any time, but could have access to information once public. Having set forth the above principles, your specific inquiries shall now be addressed. In response to your first specific inquiry, you are advised that the Commission's holding in Van Rensler, supra, would be applicable to the instant matter even though the support staff employees are not members of a collective bargaining unit. Thus, the School Director could vote on the finalized Manual as long as the prerequisites for applying the class /subclass exclusion would be met as to the School Director's immediate family member. However, the Ethics Act would preclude the participation of the School Director in the negotiation process. As to your second specific inquiry, you are advised as follows. Based upon Van Rensler, supra, the School Director would be prohibited from attending an executive session of the School Board where the status of the discussions or negotiations with the representatives of the support staff would be discussed. See, Mattie, supra; Fox, Advice 00 -593. The School Director would further be prohibited from: (1) giving an opinion to School District administrators as to how discussions or negotiations should be handled; or (2) engaging in general discussions with School District administrators regarding their opinions as to making improvements or adjustments to the overall wage structure for support staff, as such activity(ies) would constitute a use of authority of office that could affect the direction and outcome of the negotiation process. In response to your third specific inquiry, you are advised that the School Director would be permitted to receive a copy of the new Manual prior to the vote on such Manual, at the earliest of the following points in time: (1) the point at which the new Manual would be publicly available; or (2) the point at which the negotiations would be concluded and the new Manual would be finalized for presentation to the School Board for a vote. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Public School Code. Conclusion: The School Director ( "the School Director ") for the Eastern York School District ( "School District ") on whose behalf you have inquired is a public official Spare, 08 -541 April 22, 2008 Page 6 subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Pursuant to Section 1103(a) of the Ethics Act, the School Director would enerally have a conflict of interest in matters before the School District School Board "School Board ") that would financially impact the School Director, a member of the chool Director's "immediate family" as that term is defined in the Ethics Act, or a business with which the School Director or an immediate family member is associated. In each instance of a conflict of interest, the School Director would be required to abstain fully from participation, and in the instance of a voting conflict, to abstain and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Based upon the submitted facts that: (1) a member of the School Director's immediate family is employed with the School District in a position classified as "support staff "; (2) support staff employees are not members of an organized collective bargaining unit; (3) representatives of support staff typically engage in discussions or negotiations with School District administrators to arrive at an agreement as to compensation and benefits, which is documented in a support staff "Compensation /Benefit Manual" (hereinafter referred to as the Manual "); (4) the current Manual ceases to be effective June 30, 2008; and (5) discussions and negotiations regarding a new Manual are planned for the near future, you are advised as follows. The School Director could vote on the finalized Manual as long as the prerequisites for applying the class /subclass exclusion would be met as to the School Director's immediate family member. However, the Ethics Act would preclude the participation of the School Director in the negotiation process. The School Director would be prohibited from attending an executive session of the School Board where the status of the discussions or negotiations with the representatives of the support staff would be discussed. The School Director would further be prohibited from: (1) giving an opinion to School District administrators as to how discussions or negotiations should be handled; or (2) engaging in general discussions with School District administrators regarding their opinions as to making improvements or adjustments to the overall wage structure for support staff, as such activity(ies) would constitute a use of authority of office that could affect the direction and outcome of the negotiation process. The School Director would be permitted to receive a copy of the new Manual prior to the vote on such Manual, at the earliest of the following points in time: (1) the point at which the new Manual would be publicly available; or (2) the point at which the negotiations would be concluded and the new Manual would be finalized for presentation to the School Board for a vote. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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 Spare, 08 -541 April 22, 2008 Page 7 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