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HomeMy WebLinkAbout08-006 DavisonDear Mr. Davison: I. ISSUE: OPINION OF THE COMMISSION Joseph R. Davison, Esquire 175 Strafford Avenue Suite One Wayne, PA 19087 Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella DATE DECIDED: 12/4/08 DATE MAILED: 12/12/08 08 -006 This Opinion is issued in response to the appeal of Advice of Counsel, 08 -566, which was issued on August 13, 2008. Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.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. II. FACTUAL BASIS FOR DETERMINATION: As counsel for James B. Davison ( "Mr. Davison "), an elected School Director for the West Chester Area School District ( "School District "), you have appealed Unruh, Advice of Counsel 08 -566, issued to Mr. Davison on August 13, 2008, through his former attorney, Ross A. Unruh, Esquire. Davison, 08 -006 December 12, 2008 Page 2 The initial advisory request submitted by Attorney Unruh on behalf of Mr. Davison presented facts that were summarized in the Advice of Counsel 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. 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. Unruh, Advice of Counsel 08 -566, at 1 -2 (Emphasis added). The facts as summarized by the Advice of Counsel were drawn from Attorney Unruh's advisory request, which stated, in part: The following facts have occasioned the request for an advisory opinion....The School Board has an unwritten practice that whatever agreement is reached with the teachers' union on benefits shall be the framework for the benefit package Davison, 08 -006 December 12, 2008 Page 3 negotiated with the other employee bargaining units. In other words, the School Board wants to provide the same benefit package to all employees. Furthermore, the Board is considering establishing an overall wage and benefits percent increase which will be the same for all bargaining units. More particularly, if the School Board settles with the teachers on an overall economic package (that is, for wages and benefits) which results in a X% increase, the goal of the Board would be to settle with the other bargaining units for an overall economic package increase of X %. Unruh letter of July 1, 2008, at 1 -2. Advice of Counsel 08 -566 determined that as a School Director for the School District, Mr. Davison is a public official subject to the provisions of the Ethics Act. Based upon this Commission's holding in Van Rensler, Opinion 90 -017, the Advice determined 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. By letter dated September 11, 2008, you appealed Advice of Counsel 08 -566. In your appeal letter, you contend that the Advice of Counsel is based upon "assumptions rather than actual facts." Davison letter of September 11, 2008, at paragraph 2. You further contend that the Advice of Counsel is inconsistent with prior Opinions of this Commission. Id. By letter dated October 6, 2008, you were notified of the date, time and location of the public meeting at which your request would be considered. On November 26, 2008, this Commission received your Brief, in which you contend that the School District does not have a policy -- unstated, unwritten, or otherwise- -that contact negotiations with any bargaining unit will influence, dictate, or be a framework/template for future contract negotiations with other bargaining units that negotiate with the School Board. You assert that Van Rensler should not be applied to exclude Mr. Davison from participating in contract negotiations with a bargaining unit of which his spouse is not a member. On December 2, 2008, Mr. Davison submitted in support of his appeal a letter dated December 2, 2008, from James T. Smith, President of the School Board. Mr. Smith's letter states, in pertinent part, that the West Chester Area School Board of Directors does not have a policy, unstated, unwritten, or otherwise that overall wage and benefits percent increases will be the same for all bargaining units." At the public meeting on December 4, 2008, you appeared and offered commentary, which may be fairly summarized as follows. Although you acknowledged the existence of the factual recitation set forth in Attorney Unruh's advisory request letter, you asserted that based upon a resolution of the School Board passed by a 7 -2 vote at a December 1, 2008, meeting, the School Board does not have a policy that the collective bargaining agreement reached with the teachers' bargaining unit would serve as the framework for contract negotiations with the other employee bargaining units. You reiterated your view that Van Rensler should be limited to situations where the immediate family member of the public Davison, 08 -006 December 12, 2008 Page 4 official /public employee is a member of the bargaining unit. You proposed that this Commission decide the appeal based upon the submitted fact that Mr. Davison's spouse is not a member of the teachers' bargaining unit or, in the alternative, based upon your submission that the School Board does not have a policy that the collective bargaining agreement reached with the teachers' bargaining unit would serve as the framework for contract negotiations with the other employee bargaining units. 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, this 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 clear that as a School Director for the School District, Mr. Davison is a public official subject to the provisions of the Ethics Act. Cf., Corcoran, Opinion 08 -003; Quinn, Opinion 07 -014; Confidential Opinion, 05 -004; Means, Opinion 04 -007. We note that the relevant provisions of the Ethics Act were accurately set forth in Advice of Counsel 08 -566, and they are incorporated 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. Mr. Davison's spouse is a member of his immediate family (see, 65 Pa.C.S. § 1102 (definition of "immediate family ")). Subject to the "de minimis exclusion" and the "class /subclass exclusion" contained within the statutory definition of "conflict" or "conflict of interest" as set forth in the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, Mr. Davison, in his public capacity as a School Director, would 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 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; 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. We shall now address your contentions that Advice of Counsel 08 -566 is based upon assumptions rather than actual facts and is inconsistent with prior Opinions of this Commission. Davison, 08 -006 December 12, 2008 Page 5 With regard to the contention that Advice of Counsel 08 -566 is based upon assumptions rather than actual facts, we determine that the Advice of Counsel accurately summarized the facts submitted by Attorney Unruh in the advisory request. Furthermore, the Advice of Counsel rendered its determination based upon the submitted facts. With respect to your remaining contention that Advice of Counsel 08 -566 is inconsistent with prior Opinions of this Commission, we note the following. In Van Rensler, supra, issued August 24, 1990, we considered whether the Ethics Act prohibited school directors from participating on a negotiating team and voting on a collective bargaining agreement when members of their immediate families were school district employees who were represented by the bargaining units. We held that school directors would not be prohibited from voting on a finalized collective bargaining agreement when members of their immediate families were school district employees represented by the bargaining unit, as long as the criteria for the class /subclass exclusion to the statutory definition of "conflict" or "conflict of interest" would be met. However, we further held that the school directors with affected immediate family members could not participate on the negotiating team. Our rationale for the latter conclusion was that the bargaining process would be free of any influence of such school directors and that the possibility of the use or transmission of confidential information would be minimized if not eliminated. Subsequently, in Esposito, Order 832, issued February 27, 1992, we held that a borough business manager did not violate Section 3(a), now Section 1103(a), of the Ethics Act when he negotiated a contract with the borough union of which his brother was a member, because the borough manager's action in negotiating the contract affected to the same degree a subclass consisting of an occupation or other group that included a member of his immediate family. In considering the above, it is our view that to the extent our rulings in Esposito and Van Rensler conflict, Esposito represents the proper application of Section 1103(a). We conclude that just as Section 1103(a) of the Ethics Act would allow a public official /public employee to vote on a collective bargaining agreement covering or impacting a member of the public official's /public employee's immediate family as long as the class /subclass exclusion would apply, Section 1103(a) of the Ethics Act would also allow the public official /public employee to participate on the negotiating team for such collective bargaining agreement as long as the class /subclass exclusion would apply. There is no basis in the Ethics Act for distinguishing between voting and participating in negotiations when the class /subclass exclusion is applicable. Based upon the above analysis, we hold that Section 1103(a) of the Ethics Act would allow a public official /public employee to participate in negotiations for a collective bargaining agreement covering or impacting an immediate family member subject to the condition that the class /subclass exclusion would be applicable. Van Rensler, Opinion 90- 017, is overruled to the limited extent it is inconsistent with our holding in this matter. We would note that there may be uncertainty as to the direction negotiations will take during the process of negotiating a collective bargaining agreement. We would generally advise that where the class /subclass exclusion initially would apply to permit a public official /public employee to participate in negotiations for a collective bargaining agreement covering or impacting an immediate family member, the public official /public employee would have to remain cognizant as to whether developments during the negotiating process would render the class /subclass exclusion no longer applicable, such that the public official /public employee would be required to abstain from further participation in the negotiations. Davison, 08 -006 December 12, 2008 Page 6 In light of our holding above, we grant the appeal and reverse Unruh, Advice of Counsel 08 -566. Based upon the submitted facts, you are advised that Section 1103(a) of the Ethics Act would not prohibit Mr. Davison 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, subject to the condition that the class /subclass exclusion would be applicable as to any impact upon Mr. Davison's spouse. The propriety of the proposed course of conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Public School Code or the Public Employee Relations Act. We note the following provision of the Public Employee Relations Act: § 1101.1801. Conflict of interest (a) No person who is a member of the same local, State, national or international organization as the employe organization with which the public employer is bargaining or who has an interest in the outcome of such bargaining which interest is in conflict with the interest of the public employer, shall participate on behalf of the public employer in the collective bargaining processes with the proviso that such person may, where entitled, vote on the ratification of an agreement. (b) Any person who violates subsection (a) of this section shall be immediately removed by the public employer from his role, if any, in the collective bargaining negations or in any matter in connection with such negotiations. 43 P.S. § 1101.1801. Since this Commission does not have the statutory jurisdiction to administer or interpret the Public Employee Relations Act, it is recommended that Mr. Davison obtain legal advice as to any potential impact of that Act. IV. CONCLUSION: A School Director is a public official subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Section 1103(a) of the Ethics Act would allow a public official /public employee to participate in negotiations for a collective bargaining agreement covering or impacting an immediate family member subject to the condition that the "class /subclass exclusion" contained within the statutory definition of "conflict" or "conflict of interest" as set forth in the Ethics Act, 65 Pa.C.S. § 1102, would be applicable. Van Rensler, Opinion 90 -017, is overruled to the limited extent it is inconsistent with our holding in this matter. Under the submitted facts that: (1) James B. Davison ( "Mr. Davison ") is a School Director for the West Chester Area School District ( "School District "); (2) Mr. Davison's spouse is employed by the School District as a secretary; (3) 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; (4) 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 (5) 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 as follows. Section 1103(a) of the Ethics Act would not prohibit Mr. Davison Davison, 08 -006 December 12, 2008 Page 7 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, subject to the condition that the class /subclass exclusion would be applicable as to any impact upon Mr. Davison's spouse. The appeal is granted, and Unruh, Advice of Counsel 08 -566 is reversed. Act. The propriety of the proposed conduct has only been addressed under the Ethics Pursuant to Section 1107(10), 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