HomeMy WebLinkAbout14-531 Steele
ADVICE OF COUNSEL
July 15, 2014
Coyleen Steele
3460 Pinewood Drive
West Homestead, PA 15120
14-531
Dear Ms. Steele:
This responds to your letter dated April 16, 2014 (postmarked May 20, 2014, and
received May 22, 2014), 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 prohibitions or restrictions upon a school director
with regard to receiving information or participating in discussions or decisions relating
to the negotiations on the portion of a labor contract that would apply to the school
district’s professional employees, where: (1) a supplemental section of the labor
contract would set the wages for various supplemental positions with the school district,
including the position of head coach of the football team; (2) the school director’s
husband is the head coach of the school district’s football team, in which capacity he is
neither a professional employee of the school district nor a member of the bargaining
unit that represents the school district’s professional employees; and (3) all data and
information on the status of the negotiations on the supplemental section of the labor
contract would be withheld from the school director.
Facts:
As a School Director for the Steel Valley School District (“School District”),
located in Allegheny County, Pennsylvania, you request an advisory from the
Pennsylvania State Ethics Commission. You have submitted facts that may be fairly
summarized as follows.
The School District School Board is in negotiations for a new labor contract
(“Labor Contract”) with the bargaining unit (“Bargaining Unit”) that represents the School
District’s professional employees. A supplemental section of the Labor Contract would
set the salaries for various supplemental positions with the School District, including the
position of head coach of the football team. Your husband is the head coach of the
School District’s football team, in which capacity he is neither a professional employee
of the School District nor a member of the Bargaining Unit.
You state that you have recused yourself from receiving any information as to the
status of the ongoing negotiations for the Labor Contract. You further state that the
School District Solicitor, who is the head of the negotiation team for the School District,
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July 15, 2014
Page 2
has indicated he could bifurcate reporting on the progress of the negotiation sessions to
ensure that you would receive information only on the status of the negotiations on the
professional employees’ portion of the Labor Contract and that you would not receive
any data or information on the status of the negotiations on the supplemental section of
the Labor Contract.
Based upon the above submitted facts, you ask whether the Ethics Act would
permit you to receive information or participate in discussions or decisions relating to
the negotiations on the professional employees’ portion of the Labor Contract as long as
all data and information on the status of the negotiations on the supplemental section of
the Labor Contract would be withheld from you.
Discussion:
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.
It is initially noted that, pursuant to the same aforesaid Sections of the Ethics Act,
an opinion/advice may be given only as to prospective (future) conduct. To the extent
that your inquiry relates to conduct that has already occurred, such past conduct may
not be addressed in the context of an advisory opinion. However, to the extent your
inquiry relates to future conduct, your inquiry may and shall be addressed.
As a School Director for the School District, you are a public official 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
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July 15, 2014
Page 3
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.
Subject to the statutory exclusions to the Ethics Act’s definition of the term
“conflict” or “conflict of interest,” 65 Pa.C.S. § 1102, 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.
Per the Pennsylvania Supreme Court’s decision in Kistler v. State Ethics
Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the
Ethics Act, a public official/public employee:
… must act in such a way as to put his \[office/public position\]
to the purpose of obtaining for himself a private pecuniary
benefit. Such directed action implies awareness on the part
of the \[public official/public employee\] of the potential
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July 15, 2014
Page 4
pecuniary benefit as well as the motivation to obtain that
benefit for himself.
Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics
Act, a public official/public employee “must be consciously aware of a private pecuniary
benefit for himself, his family, or his business, and then must take action in the form of
one or more specific steps to attain that benefit.” Id., 610 Pa. at 528, 22 A.3d at 231.
A conflict of interest would not exist to the extent the “de minimis exclusion”
and/or the “class/subclass exclusion” set forth within the Ethics Act’s definition of the
term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, would be applicable.
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 applying the above provisions of the Ethics Act to your inquiry, you are advised
as follows.
Your husband is a member of your “immediate family” as that term is defined in
the Ethics Act.
You would not have a conflict of interest and would not violate Section 1103(a) of
the Ethics Act as to receiving information or participating in discussions or decisions
relating to the negotiations on the professional employees’ portion of the Labor
Contract--where all data and information on the status of the negotiations on the
supplemental section of the Labor Contract would be withheld from you--unless: (1) you
would be consciously aware of a private pecuniary benefit for you or a member of your
immediate family such as your husband; (2) your official action would constitute one or
more specific steps to attain that benefit; and (3) neither the de minimis exclusion nor
the class/subclass exclusion set forth within the Ethics Act’s definition of the term
"conflict" or "conflict of interest," 65 Pa.C.S. § 1102, would be applicable. Cf., Kistler,
supra; Davison, Opinion 08-006; Fox, Opinion 08-008.
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
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July 15, 2014
Page 5
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 Pennsylvania 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 Steel Valley School District (“School
District”), located in Allegheny County, Pennsylvania, 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. Based upon the submitted facts that: (1) the School District School Board
is in negotiations for a new labor contract (“Labor Contract”) with the bargaining unit
(“Bargaining Unit”) that represents the School District’s professional employees; (2) a
supplemental section of the Labor Contract would set the salaries for various
supplemental positions with the School District, including the position of head coach of
the football team; (3) your husband is the head coach of the School District’s football
team, in which capacity he is neither a professional employee of the School District nor
a member of the Bargaining Unit; (4) you have recused yourself from receiving any
information as to the status of the ongoing negotiations for the Labor Contract; and (5)
the School District Solicitor, who is the head of the negotiation team for the School
District, has indicated he could bifurcate reporting on the progress of the negotiation
sessions to ensure that you would receive information only on the status of the
negotiations on the professional employees’ portion of the Labor Contract and that you
would not receive any data or information on the status of the negotiations on the
supplemental section of the Labor Contract, you are advised as follows.
Your husband is a member of your “immediate family” as that term is defined in
the Ethics Act. You would not have a conflict of interest and would not violate Section
1103(a) of the Ethics Act as to receiving information or participating in discussions or
decisions relating to the negotiations on the professional employees’ portion of the
Labor Contract--where all data and information on the status of the negotiations on the
supplemental section of the Labor Contract would be withheld from you--unless: (1) you
would be consciously aware of a private pecuniary benefit for you or a member of your
immediate family such as your husband; (2) your official action would constitute one or
more specific steps to attain that benefit; and (3) neither the de minimis exclusion nor
the class/subclass exclusion set forth within the Ethics Act’s definition of the term
"conflict" or "conflict of interest," 65 Pa.C.S. § 1102, would be applicable. 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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July 15, 2014
Page 6
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