HomeMy WebLinkAbout13-518 Rawls
ADVICE OF COUNSEL
April 9, 2013
Jesse Rawls, Sr.
th
528 North 36 Street
Harrisburg, PA 17109
13-518
Dear Mr. Rawls:
This responds to your letter dated February 26, 2013, 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 school
director, whose wife is employed by the school district as a certified school nurse, with
regard to participating in labor contract negotiations on behalf of the school district.
Facts:
You are a School Director for the Susquehanna Township School District
(“School District”). Your wife is employed by the School District as a Certified School
Nurse. You seek guidance as to whether the Ethics Act would impose any prohibitions
or restrictions upon you with regard to participating in labor contract negotiations on
behalf of the School District.
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.
As a School Director for the School District, you are a public official as that term
is defined in the Ethics Act, and therefore you are subject to the provisions of the Ethics
Act.
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.
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April 9, 2013
Page 2
(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 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.
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April 9, 2013
Page 3
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.
It is noted that 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; Schweinsburg, 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, the Commission 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 Rensler, Opinion 90-017, to the limited extent it was inconsistent with
the Commission’s holding). The Commission noted that there may be uncertainty as to
the direction negotiations will take during the process of negotiating a collective
bargaining agreement, and the Commission generally advised 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.
In applying the above provisions of the Ethics Act to the instant matter, you are
advised as follows. Your wife is a member of your “immediate family” as that term is
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April 9, 2013
Page 4
defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, you generally
would have a conflict of interest in matters before the School District School Board that
would financially impact you, a member of your immediate family such as your wife, or a
business with which you or a member of your immediate family is associated.
You are further advised that Section 1103(a) of the Ethics Act would not prohibit
you from participating in labor contract negotiations on behalf of the School District
subject to the condition that the class/subclass exclusion would be applicable as to any
impact upon your wife. (The submitted facts do not enable a conclusive determination
in that regard.)
It is parenthetically noted that with regard to the collective bargaining process,
the Public Employee Relations Act provides as follows:
§ 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 negotiations
or in any matter in connection with such negotiations.
43 P.S. § 1101.1801. Since the State Ethics Commission does not have the statutory
jurisdiction to administer or interpret the Public Employee Relations Act, it is
recommended that you obtain legal advice as to any potential impact of that Act.
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. Specifically not addressed herein is the applicability of
the Public School Code or the Public Employee Relations Act.
Conclusion:
As a School Director for the Susquehanna Township School District
(“School District”), you are a public official subject to the provisions of the Public Official
and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Your wife, who is
employed by the School District as a Certified School Nurse, is a member of your
“immediate family” as that term is defined in the Ethics Act. Pursuant to Section
1103(a) of the Ethics Act, you generally would have a conflict of interest in matters
before the School District School Board that would financially impact you, a member of
your immediate family such as your wife, or a business with which you or a member of
your immediate family is associated. Section 1103(a) of the Ethics Act would not
prohibit you from participating in labor contract negotiations on behalf of the School
District subject to the condition that the class/subclass exclusion would be applicable as
to any impact upon your wife.
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 or the Public Employee Relations Act.
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April 9, 2013
Page 5
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