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HomeMy WebLinkAbout08-008 MACKAYOPINION OF THE COMMISSION Gregory S. Fox, Esquire Fox & Fox, P.C. 323 Sixth Street Ellwood City, PA 16117 Dear Mr. Fox: I. ISSUE: 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 -008 This Opinion is issued in response to your advisory request letters dated September 5, 2008, September 12, 2008, and September 25, 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 a particular bargaining unit within the school district, where: (1) the school director's spouse is employed with the school district and is part of a different bargaining unit in the school district; (2) the collective bargaining agreements with such bargaining units will expire at the same time and will be negotiated at the same time by different negotiating committees; (3) the current collective bargaining agreements with such bargaining units have different provisions concerning health insurance coverage; and (4) during the contract negotiations process, the school board could decide to offer the same health insurance package to both such bargaining units. II. FACTUAL BASIS FOR DETERMINATION: As Solicitor for the Riverside Beaver County School District ( "the School District "), you have been authorized by School District School Directors Emmett Santillo ( "Mr. Santillo ") and Derek MacKay ( "Mr. MacKay ") to request an advisory from this Commission on their behalf. You have submitted facts that may be fairly summarized as follows. The collective bargaining agreement for the School District's teachers (hereinafter Fox, Opinion 08 -008 December 12, 2008 Page 2 referred to as the Teachers Agreement ") will expire on June 30, 2009. The collective bargaining agreement for the School District's janitors, cafeteria staff, and other personnel (hereinafter referred to as the Support Personnel Agreement ") also will expire on June 30, 2009. The Teachers Agreement and Support Personnel Agreement (hereinafter collectively referred to as the Agreements ") have different provisions concerning health insurance coverage. The next Teachers Agreement and Support Personnel Agreement will be negotiated at the same time by different negotiating committees. You state that during the contract negotiations process, the School District School Board ( "School Board ") could decide to offer the same health insurance coverage package to both bargaining units. Mr. MacKay is married to a teacher who is covered by the Teachers Agreement. Mr. Santillo is married to a School District cafeteria employee who is covered by the Support Personnel Agreement. You state that Mr. Santillo, as the spouse of an employee covered by the Support Personnel Agreement, could be covered by the health insurance provisions of said agreement, but he has elected to forego such coverage. The School Board President is considering appointing Mr. MacKay to the negotiating committee for the Support Personnel Agreement and appointing Mr. Santillo to the negotiating committee for the Teachers Agreement. You state that if the School Board would decide to offer the same health insurance coverage package to both bargaining units, each of the aforesaid School Directors would become aware of the health insurance coverage package offered to his spouse's bargaining unit. You further state that because the negotiations are handled by committee and in executive sessions, Mr. MacKay and Mr. Santillo may become aware of any contentious issues concerning health insurance before the information is released to the public. You have submitted a copy of Fox, Advice of Counsel 00 -593, which was issued to you on July 20, 2000, in an unrelated matter. You express your understanding that consistent with the aforesaid Advice of Counsel, Mr. Santillo would be prohibited from participating in the negotiations for the Support Personnel Agreement, and Mr. MacKay would be prohibited from participating in the negotiations for the Teachers Agreement. Based upon the above submitted facts, you pose the following specific inquiries: 1. Whether the Ethics Act would permit Mr. Santillo, as a member of the negotiating committee for the Teachers Agreement, to receive confidential information concerning the health insurance coverage package offered to the support personnel; 2. Whether the Ethics Act would permit Mr. MacKay, as a member of the negotiating committee for the Support Personnel Agreement, to receive confidential information concerning the health insurance coverage package offered to the teachers; 3. If the School Board would offer the same health insurance coverage package to both bargaining units, whether Mr. MacKay and Mr. Santillo could avoid a conflict of interest by removing themselves from their respective negotiating committees; and 4. Whether the Ethics Act would require Mr. Santillo and Mr. MacKay to be excluded from the negotiations for the Agreements and receive information on the Agreements as that information is released to the public. By letter dated October 6, 2008, you were notified of the date, time and location of Fox, Opinion 08 -008 December 12, 2008 Page 3 the public meeting at which your request would be considered. 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. As School Directors for the School District, Mr. Santillo and Mr. MacKay are public officials subject to the Ethics Act. Cf., Corcoran, Opinion 08 -003; Quinn, Opinion 07 -014; Confidential Opinion, 05 -004; Means, Opinion 04 -007. 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 related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public Fox, Opinion 08 -008 December 12, 2008 Page 4 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 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; 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 Davison, Opinion 08 -006, we held 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. Id., at 5 (overruling Van Fox, Opinion 08 -008 December 12, 2008 Page 5 Rensler, Opinion 90 -017, to the limited extent it was inconsistent with our holding). In applying Section 1103(a) of the Ethics Act to your first two specific inquiries, you are advised that as to each School Director (that is, Mr. Santillo or Mr. MacKay), Section 1103(a) of the Ethics Act would not prohibit the School Director from participating in the contract negotiations with a bargaining unit of which his spouse either is or is not a member, subject to the condition that the class /subclass exclusion would be applicable as to any impact upon his spouse. You are further advised that Section 1103(a) of the Ethics Act would not restrict either School Director from receiving confidential information regarding the health insurance coverage package offered to his spouse's collective bargaining unit during the negotiations process, as long as the class /subclass exclusion would be applicable as to any impact upon his spouse. Turning to your third specific inquiry, you are advised as follows. As we noted in Davison, supra, 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. Your fourth specific inquiry has been addressed above. 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. Santillo and Mr. MacKay obtain legal advice as to any potential impact of that Act. IV. CONCLUSION: As School Directors for the Riverside Beaver County School District ( "School District "), Emmett Santillo ( "Mr. Santillo") and Derek MacKay ( "Mr. MacKay ") are public officials subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § Fox, Opinion 08 -008 December 12, 2008 Page 6 1101 et seq. Under the submitted facts that: (1) both the collective bargaining agreement for the School District's teachers (hereinafter referred to as the Teachers Agreement ") and the collective bargaining agreement for the School District's janitors, cafeteria staff, and other personnel (hereinafter referred to as the Support Personnel Agreement ") will expire on June 30, 2009; (2) the Teachers Agreement and Support Personnel Agreement have different provisions concerning health care coverage; (3) the next Teachers Agreement and Support Personnel Agreement will be negotiated at the same time by different negotiating committees; (4) during the contract negotiations process, the School District School Board ( "School Board ") could decide to offer the same health insurance coverage package to both unions; (5) Mr. MacKay is married to a teacher who is covered by the Teachers Agreement; (6) Mr. Santillo is married to a School District cafeteria employee who is covered by the Support Personnel Agreement; and (7) the School Board President is considering appointing Mr. MacKay to the negotiating committee for the Support Personnel Agreement and appointing Mr. Santillo to the negotiating committee for the Teachers Agreement, you are advised as follows. As to each School Director (that is, Mr. Santillo or Mr. MacKay), Section 1103(a) of the Ethics Act would not prohibit the School Director from participating in the contract negotiations with a bargaining unit of which his spouse either is or is not a member, subject to the condition that the class /subclass exclusion would be applicable as to any impact upon his spouse. Section 1103(a) of the Ethics Act would not restrict either School Director from receiving confidential information regarding the health insurance coverage package offered to his spouse's collective bargaining unit during the negotiations process, as long as the class /subclass exclusion would be applicable as to any impact upon his spouse. 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. Act. The propriety of the proposed conduct has only been addressed under the Ethics Pursuant to Section 1107(10) of the Ethics Act, 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