HomeMy WebLinkAbout11-546 Pandeladis
ADVICE OF COUNSEL
August 25, 2011
Leo Pandeladis, Chief Counsel
Pennsylvania State System of Higher Education
Dixon University Center
2986 North Second Street
Harrisburg, PA 17110-1201
11-546
Dear Mr. Pandeladis:
This responds to your letters dated July 18, 2011, and July 26, 2011, as
supplemented and revised by your two letters dated July 27, 2011, by which you
requested an advisory from the Pennsylvania State Ethics Commission.
Issue:
Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65
Pa.C.S. § 1101 et seq., would impose any prohibitions or restrictions upon a president
of a university within the Pennsylvania State System of Higher Education with regard to
the hiring of his spouse for the position of faculty member at the same university where
he serves as president.
Facts:
As Chief Counsel for the Pennsylvania State System of Higher Education
(“PASSHE”), you have been authorized by majority action of the Executive Committee
of the Board of Governors of the PASSHE to request an advisory from the Pennsylvania
State Ethics Commission. You have submitted facts that may be fairly summarized as
follows.
Universities within the PASSHE hire faculty pursuant to a collective bargaining
agreement (“Collective Bargaining Agreement”) with the Association of Pennsylvania
State College and University Faculties. Article 11 of the Collective Bargaining
Agreement governs the appointment of faculty for the PASSHE universities. You have
submitted a copy of Article 11 of the Collective Bargaining Agreement, which document
is incorporated herein by reference.
Article 11 of the Collective Bargaining Agreement provides, in pertinent part, as
follows:
Article 11
APPOINTMENT OF FACULTY
A. 1. In the event the President approves the filling
of a vacancy within a department, a candidate, who
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August 25, 2011
Page 2
may be secured from any source, first must be
recommended by the majority of the regular full-time
department FACULTY in accordance with the
procedure developed by that department
FACULTY….
4. If a candidate is not recommended by the
department FACULTY, he/she shall not be hired. If a
candidate is recommended to the department by
management and is rejected by the department, the
reasons therefore shall be given in writing to the
President or his/her designee within twenty-one (21)
calendar days of such rejection. If the department
fails to provide the specific reasons for the rejection of
the candidate recommended by management within
the twenty-one (21) calendar days, the President may
appoint the candidate.
B. The recommendation of the department FACULTY in
accordance with the provisions of Section A. above then
must be reviewed by the department chairperson….
C. After review by the department chairperson, the name
of a candidate(s) recommended by the majority of regular
full-time department FACULTY, irrespective of the
recommendation of the department chairperson, shall be
submitted to the President or his/her designee, together with
the recommendations both of the majority of regular full-time
department FACULTY and of the department chairperson.
The President or his/her designee may accept or reject the
recommendation of the department FACULTY, including the
recommendation of the department chairperson, and that
decision shall be final; provided, however, that if the
recommendation is rejected, the reasons therefore shall be
given to the department FACULTY, if requested; and
provided further, that in the event of any such rejection, the
procedure specified above shall be repeated until a
candidate shall have been appointed to fill the vacancy.
D. If the President agrees with the majority of the regular
full-time department FACULTY’S recommendation as to a
candidate, he/she shall make the appointment of that
candidate to such rank and at such salary as he/she shall
deem appropriate.
E. In the event there is no agreement between the
President and the majority of the regular full-time department
FACULTY as to a mutually acceptable candidate for
appointment to fill the approved vacancy, the President shall
have the right to appoint a person to fill the vacancy on an
interim basis for a period not to exceed nine (9) months or
one (1) academic year, unless a longer period is mutually
agreed upon. In no case may the President appoint a
person more than once under the provisions of this
subsection.
….
Collective Bargaining Agreement, Article 11.
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August 25, 2011
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A vacancy for an adjunct faculty position (“Faculty Position”) at a university
(“University”) within the PASSHE was posted. The posting for the Faculty Position
listed required qualifications and skills necessary for applicants to be considered for
such position. Applicants for the Faculty Position had to submit their materials to the
Chair of the Department. You state that Department review of such applicants and their
materials in accordance with the provisions of Article 11 of the Collective Bargaining
Agreement began immediately. You further state that the Faculty Position will be
awarded to the successful candidate in accordance with Article 11 of the Collective
Bargaining Agreement.
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would impose any prohibitions or restrictions upon the President of the
University with regard to the hiring of his spouse as a member of the University faculty.
You state that the conduct for which you are requesting guidance has not occurred, and
that the President of the University has not yet been included in the hiring process for
the Faculty Position and has not taken an action related to this matter.
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.
The President of the University, hereinafter also referred to as “President,” is a
public official/public employee subject to the provisions of the Ethics Act. Richardson,
Opinion 93-006; Richardson, Opinion 89-017; Kelchner, Advice 00-558.
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
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August 25, 2011
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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
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 use of authority of office is not limited merely to voting, but extends to any
use of authority of office including, but not limited to, discussing, conferring with others,
and lobbying for a particular result. Juliante, Order 809.
In each instance of a conflict of interest, a public official/public employee would
be required to abstain from participation, which would include voting unless one of the
statutory exceptions of Section 1103(j) of the Ethics Act would be applicable.
Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have
to be satisfied in the event of a voting conflict.
Section 1103(f) of the Ethics Act, pertaining to contracting, provides as follows:
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August 25, 2011
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§ 1103. Restricted activities
(f)Contract.--
No public official or public employee or
his spouse or child or any business in which the person or
his spouse or child is associated shall enter into any contract
valued at $500 or more with the governmental body with
which the public official or public employee is associated or
any subcontract valued at $500 or more with any person
who has been awarded a contract with the governmental
body with which the public official or public employee is
associated, unless the contract has been awarded through
an open and public process, including prior public notice and
subsequent public disclosure of all proposals considered and
contracts awarded. In such a case, the public official or
public employee shall not have any supervisory or overall
responsibility for the implementation or administration of the
contract. Any contract or subcontract made in violation of
this subsection shall be voidable by a court of competent
jurisdiction if the suit is commenced within 90 days of the
making of the contract or subcontract.
65 Pa.C.S. § 1103(f).
The term “contract” is defined in the Ethics Act as follows:
§ 1102. Definitions
"Contract."
An agreement or arrangement for the
acquisition, use or disposal by the Commonwealth or a
political subdivision of consulting or other services or of
supplies, materials, equipment, land or other personal or real
property. The term shall not mean an agreement or
arrangement between the State or political subdivision as
one party and a public official or public employee as the
other party, concerning his expense, reimbursement, salary,
wage, retirement or other benefit, tenure or other matters in
consideration of his current public employment with the
Commonwealth or a political subdivision.
65 Pa.C.S. § 1102.
Section 1103(f) does not operate to make contracting with the governmental
body permissible where it is otherwise prohibited. Rather, where a public official/public
employee, his spouse or child, or a business with which he, his spouse or child is
associated, is otherwise appropriately contracting with the governmental body, or
subcontracting with any person who has been awarded a contract with the
governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an
“open and public process” be observed as to the contract with the governmental body.
Section 1103(f) of the Ethics Act also requires that the public official/public employee
may not have any supervisory or overall responsibility as to the implementation or
administration of the contract with the governmental body.
In applying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
The President’s spouse is a member of his “immediate family” as that term is
defined by the Ethics Act. The President generally would have a conflict of interest under
Section 1103(a) of the Ethics Act in matters that would financially impact him, a member of
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August 25, 2011
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his immediate family such as his spouse, or a business with which he or a member of his
immediate family is associated. In each instance of a conflict of interest, the President
would be required to abstain from participation, which would include voting unless one
of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable.
Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have
to be satisfied in the event of a voting conflict.
Turning to your specific inquiry, you are advised as follows.
Per Article 11 of the Collective Bargaining Agreement, the authority of the office of
President of the University includes the authority to appoint member(s) of the University
faculty and set the rank and salary of such position(s). Section 1103(a) of the Ethics Act
would prohibit the President from hiring his spouse for the position of member of the
University faculty and/or setting her rank and salary, because such action(s) would
constitute use(s) of authority of his public position for the private pecuniary benefit of a
member of his immediate family. See, Yatron, Opinion 02-008; Confidential Opinion, 02-
004; Holvey, Orders 1039, 1039-2.
The submitted facts do not indicate whether there is a pre-existing mechanism in
place for delegation of the President’s authority in the event of a conflict of interest. You
are advised that if there is no pre-existing conflict mechanism in place specifying how and
by whom the President’s authority should be exercised in the event of a conflict of interest,
Section 1103(a) of the Ethics Act would prohibit the President from delegating to a
subordinate the authority that he has as President with respect to the appointment of his
spouse to the position of member of the University faculty.
Finally, the restrictions of Section 1103(f) of the Ethics Act must be observed when
applicable.
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability of any other statute, code, ordinance, regulation or other code of
conduct other than the Ethics Act has not been considered in that they do not involve an
interpretation of the Ethics Act.
Conclusion:
Based upon the submitted facts that: (1) universities within the
Pennsylvania State System of Higher Education (“PASSHE”) hire faculty pursuant to a
collective bargaining agreement (“Collective Bargaining Agreement”) with the
Association of Pennsylvania State College and University Faculties; (2) a vacancy for
an adjunct faculty position (“Faculty Position”) at a university (“University”) within the
PASSHE was posted; (3) the posting for the Faculty Position listed required
qualifications and skills necessary for applicants to be considered for such position; (4)
applicants for the Faculty Position had to submit their materials to the Chair of the
Department; (5) Department review of such applicants and their materials in accordance
with the provisions of Article 11 of the Collective Bargaining Agreement began
immediately; and (6) the Faculty Position will be awarded to the successful candidate in
accordance with Article 11 of the Collective Bargaining Agreement, you are advised as
follows.
The President of the University (“President”) is a public official/public employee
subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65
Pa.C.S. § 1101 et seq. The President’s spouse is a member of his “immediate family” as
that term is defined by the Ethics Act. The President generally would have a conflict of
interest under Section 1103(a) of the Ethics Act in matters that would financially impact him,
a member of his immediate family such as his spouse, or a business with which he or a
member of his immediate family is associated. In each instance of a conflict of interest,
the President would be required to abstain from participation, which would include
voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would
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August 25, 2011
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be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics
Act would have to be satisfied in the event of a voting conflict.
Section 1103(a) of the Ethics Act would prohibit the President from hiring his spouse
for the position of member of the University faculty and/or setting her rank and salary,
because such action(s) would constitute use(s) of authority of his public position for the
private pecuniary benefit of a member of his immediate family. The submitted facts do not
indicate whether there is a pre-existing mechanism in place for delegation of the
President’s authority in the event of a conflict of interest. If there is no pre-existing conflict
mechanism in place specifying how and by whom the President’s authority should be
exercised in the event of a conflict of interest, Section 1103(a) of the Ethics Act would
prohibit the President from delegating to a subordinate the authority that he has as
President with respect to the appointment of his spouse to the position of member of the
University faculty. The restrictions of Section 1103(f) of the Ethics Act must be observed
when applicable. 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