HomeMy WebLinkAbout08-008 SANTILLOOPINION 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