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HomeMy WebLinkAbout13-531 Lawler ADVICE OF COUNSEL May 8, 2013 John J. Lawler, Jr., Esquire 25 North Main Street, Suite Two Carbondale, PA 18407 13-531 Dear Mr. Lawler: This responds to your letters of March 14, 2013, and March 20, 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 seven school directors with regard to participating in contract negotiations with the bargaining unit for the school district’s teachers or voting on a contract with the bargaining unit where: (1) four of the school directors each have one immediate family member employed as a teacher with the school district; (2) one of the school directors has two immediate family members employed as teachers with the school district; (3) the father of one of the school directors is a retired school district teacher; and (4) the husband of one of the school directors is a retired school district principal. Facts: As Solicitor for the Carbondale Area School District (“School District”), you have been authorized by School District School Directors Thomas Cerra (“Mr. Cerra”), John Jordan (“Mr. Jordan”), Marcella Kaczmarcik (“Ms. Kaczmarcik”), Nancy Mark (“Ms. Mark”), Joseph Petak (“Mr. Petak”), Dr. Gary Smedley (“Dr. Smedley”), and Joseph Totsky (“Mr. Totsky”) to request an advisory from the Pennsylvania State Ethics 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 expired on June 30, 2012. The Carbondale Area Teacher’s Association (the “Bargaining Unit”) represents the School District’s teachers. The School District School Board wishes to negotiate a new contract with the Bargaining Unit as a Committee of the Whole. Mr. Cerra has a daughter who is employed as a teacher with the School District. Mr. Jordan’s wife is employed as a teacher with the School District and is a member of the negotiating team for the Bargaining Unit. Ms. Kaczmarcik’s husband retired from his employment as a principal with the School District on June 30, 2012. Ms. Mark’s mother is employed as a teacher with the School District. Mr. Petak has two daughters who are employed as teachers with the School District, one of whom is currently out on leave. Dr. Smedley’s father retired from his employment as a teacher with the School Lawler, 13-531 May 8, 2013 Page 2 District on June 30, 2012. Mr. Totsky is a Member of the Pennsylvania State Education Association, and his wife is employed as a teacher with the School District. Based upon the above submitted facts, you ask whether the Ethics Act would impose any prohibitions or restrictions upon Mr. Cerra, Mr. Jordan, Ms. Kaczmarcik, Ms. Mark, Mr. Petak, Dr. Smedley, or Mr. Totsky with regard to participating in contract negotiations with the Bargaining Unit or voting on a contract with the Bargaining Unit. 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 School Directors for the School District, Mr. Cerra, Mr. Jordan, Ms. Kaczmarcik, Ms. Mark, Mr. Petak, Dr. Smedley, and Mr. Totsky are public officials 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. (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: Lawler, 13-531 May 8, 2013 Page 3 § 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. 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, Lawler, 13-531 May 8, 2013 Page 4 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. As to each of the School Directors on whose behalf you have inquired (that is, Mr. Cerra, Mr. Jordan, Ms. Kaczmarcik, Ms. Mark, Mr. Petak, Dr. Smedley, and Mr. Totsky), pursuant to Section 1103(a) of the Ethics Act, the School Director generally would have a conflict of interest in matters before the School District School Board that would financially impact the School Director, a member of the School Director’s immediate family, or a business with which the School Director or a member of the School Director’s immediate family is associated. You are further advised that as to each of the aforesaid School Directors, Section 1103(a) of the Ethics Act would not prohibit such School Director from participating in contract negotiations with the Bargaining Unit or voting on a contract with the Bargaining Unit subject to the condition that the class/subclass exclusion would be applicable as to any impact upon such School Director’s immediate family member(s). (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. Lawler, 13-531 May 8, 2013 Page 5 (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 the School Directors on whose behalf you have inquired seek 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 School Directors for the Carbondale Area School District (“School District”), Thomas Cerra (“Mr. Cerra”), John Jordan (“Mr. Jordan”), Marcella Kaczmarcik (“Ms. Kaczmarcik”), Nancy Mark (“Ms. Mark”), Joseph Petak (“Mr. Petak”), Dr. Gary Smedley (“Dr. Smedley”), and Joseph Totsky (“Mr. Totsky”) are public officials subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Based upon the submitted facts that: (1) the collective bargaining agreement for the School District’s teachers expired on June 30, 2012; (2) the Carbondale Area Teacher’s Association (the “Bargaining Unit”) represents the School District’s teachers; (3) the School District School Board wishes to negotiate a new labor contract with the Bargaining Unit as a Committee of the Whole; (4) Mr. Cerra has a daughter who is employed as a teacher with the School District; (5) Mr. Jordan’s wife is employed as a teacher with the School District and is a member of the negotiating team for the Bargaining Unit; (6) Ms. Kaczmarcik’s husband retired from his employment as a principal with the School District on June 30, 2012; (7) Ms. Mark’s mother is employed as a teacher with the School District; (8) Mr. Petak has two daughters who are employed as teachers with the School District, one of whom is currently out on leave; (9) Dr. Smedley’s father retired from his employment as a teacher with the School District on June 30, 2012; and (10) Mr. Totsky is a Member of the Pennsylvania State Education Association, and his wife is employed as a teacher with the School District, you are advised as follows. As to each of the School Directors on whose behalf you have inquired (that is, Mr. Cerra, Mr. Jordan, Ms. Kaczmarcik, Ms. Mark, Mr. Petak, Dr. Smedley, and Mr. Totsky), pursuant to Section 1103(a) of the Ethics Act, the School Director generally would have a conflict of interest in matters before the School District School Board that would financially impact the School Director, a member of the School Director’s immediate family, or a business with which the School Director or a member of the School Director’s immediate family is associated. As to each of the aforesaid School Directors, Section 1103(a) of the Ethics Act would not prohibit such School Director from participating in contract negotiations with the Bargaining Unit or voting on a contract with the Bargaining Unit subject to the condition that the class/subclass exclusion would be applicable as to any impact upon such School Director’s immediate family member(s). 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. 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. Lawler, 13-531 May 8, 2013 Page 6 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