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HomeMy WebLinkAbout08-566 UnruhRoss A. Unruh, Esquire Unruh Turner Burke & Frees, P.C. P.O. Box 515 West Chester, PA 19381 -0515 Dear Mr. Unruh: ADVICE OF COUNSEL August 13, 2008 08 -566 This responds to your letter dated July 1, 2008, received July 7, 2008, and your faxed transmission received July 11, 2008, loy which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would present any prohibition or restrictions upon a school director with regard to participating in contract negotiations with the bargaining unit for the school district's teachers where: (1) any collective bargaining agreement reached with the teachers' bargaining unit would serve as the framework for the benefit package negotiated with the other school district employee bargaining units; (2) if the school board would settle with the teachers' bargaining unit on an overall economic package resulting in a specific percentage increase for wages and benefits, the school board would seek to settle with the other bargaining units for an overall economic package increase of the same percentage; (3) the school director's spouse is employed by the school district as a secretary; and (4) the school director's spouse is not a member of the bargaining unit for the school district secretaries but would receive the wages and benefits negotiated by the school district secretaries' bargaining unit. Facts: As the legal representative of the West Chester Area School District (" chool District "), you have been authorized by James B. Davison ( "Mr. Davison "), an elected School Director for the School District, to request an advisory from the Pennsylvania State Ethics Commission on his behalf. You have submitted facts, the material portion of which may be fairly summarized as follows. The Pennsylvania State Education Association ( "PSEA ") represents separate bargaining units for the School District's teachers and the School District's secretaries. A committee ( "Negotiating Committee ") of the School District School Board ( "School Board ") has commenced discussions with representatives of PSEA ( "the Association Team ") in an effort to reach an early agreement on the teachers' wages and benefits for the next collective bargaining agreement. The Negotiating Committee consists of Mr. Davison and two other School Board Members. Unruh, 08 -566 August 13, 2008 Page 2 You state that although the Negotiating Committee has commenced discussions with the Association Team, substantive discussions on wages and benefits have not yet occurred. You state that the School Board has an unwritten practice that whatever agreement is reached with the teachers' union as to benefits shall be the framework for the benefit package negotiated with the other employee bargaining units. As part of the negotiation process, the School Board is considering establishing an overall wage and benefits increase that would be the same percentage for all bargaining units. In particular, if the School Board would settle with the teachers' bargaining unit on an overall economic package (i.e., wages and benefits) resulting in a specific percentage increase, the Board would seek to settle with the other bargaining units for an overall economic package increase of the same percentage. Mr. Davison's spouse is employed by the School District as a secretary. Although Mr. Davison's spouse is not a member of PSEA, she receives the wages and benefits that PSEA negotiates in the collective bargaining agreement for the School District secretaries. Based upon the above submitted facts, you ask whether the Ethics Act would permit Mr. Davison to serve as one of three School Directors negotiating with the teachers' union representatives on the wage and benefit package for the next teachers' collective bargaining agreement. 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, 65 Pa.C.S. §§ 1107(10), (11), an advisory 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, Mr. Davison is a public official subject to the provisions of the Ethics Act. See, e.q., Quinn, Opinion 07 -014. 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 Unruh, 08 -566 August 13, 2008 Page 3 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 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. Unruh, 08 -566 August 13, 2008 Page 4 The above statutory definition of "conflict" or "conflict of interest" contains two 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. Mr. Davison's spouse is a member of his "immediate family" as that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, in his public capacity as a School Director, Mr. Davison would generally have a conflict of interest in matters that would financially impact him, his spouse, or a business with which he or his spouse is associated. In each instance of a conflict of interest, Mr. Davison 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, Mr. Davison 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 Unruh, 08 -566 August 13, 2008 Page 5 Commission noted that the negotiation process would be free of any influence of such a school director and that the potential for the use of confidential information would be "minimized if not eliminated." Id. at 4 -5. Thus, with respect to the negotiation process, the Van Rensler Opinion addressed: (1) having the negotiation process free of influence of school directors with affected immediate family members; and (2) precluding the use of confidential information obtained through the public office as school director to defeat the bargaining process. In the instant matter, Mr. Davison's spouse is not a member of the teachers' collective bargaining unit or the secretaries' collective bargaining unit. However, she is a School District secretary who would be reasonably expected to be impacted by or to receive the very benefit package or overall economic package percentage increase that would be negotiated for the teachers' contract. See, Amato, Opinion 89 -002. Therefore, based upon the Van Rensler Opinion and the submitted facts that: (1) Mr. Davison's spouse is employed as a secretary by the School District; (2) the School Board would use the collective bargaining agreement reached with the teachers' bargaining unit as the framework for the benefit package negotiated with the other School District employee bargaining units; (3) if the School Board would settle with the teachers' bargaining unit on an overall economic package resulting in a specific percentage increase for wages and benefits, the School Board would seek to settle with the other bargaining units for an overall economic package increase of the same percentage; and (4) Mr. Davison's spouse is not a member of the bargaining unit for the School District secretaries but would receive the wages and benefits negotiated by the School District secretaries' bargaining unit, you are advised that pursuant to Section 1103(a) of the Ethics Act, Mr. Davison would be prohibited from serving as a negotiator for the School District with the teachers' union representatives on the teachers' wage and benefit package for the next teachers' collective bargaining agreement. See, Van Rensler, supra; cf., Sekula, Advice 06 -525. 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: As a School Director for the West Chester Area School District ( "School District "), James B. Davison ( "Mr. Davison ") is a ublic official 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, in his public capacity as a School Director, Mr. Davison would generally have a conflict of interest in matters that would financially impact him, his spouse, or a business with which he or his spouse is associated. In each instance of a conflict of interest, Mr. Davison would be required to abstain fully from participation, and in each 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) Mr. Davison's spouse is employed as a secretary by the School District; (2) the School District School Board ("School Board ") would use the collective bargaining agreement reached with the teachers' bargaining unit as the framework for the benefit package negotiated with the other School District employee bargaining units; (3) if the School Board would settle with the teachers' bargaining unit on an overall economic package resulting in a specific percentage increase for wages and benefits, the School Board would seek to settle with the other bargaining units for an overall economic package increase of the same percentage; and (4) Mr. Davison's spouse is not a member of the bargaining unit for the School District secretaries but would receive the wages and benefits negotiated by the School District secretaries' bargaining unit, pursuant to Section 1103(a) of the Ethics Act, Mr. Davison would be prohibited from serving as a negotiator for the School District with the teachers' union representatives on the teachers' wage and benefit package for the next teachers' collective bargaining agreement. Unruh, 08 -566 August 13, 2008 Page 6 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 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