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Home My WebLink About15-529 Whitehead ADVICE OF COUNSEL May 1, 2015 Elizabeth A. Whitehead 207 Warwick Street Philipsburg, PA 16866 15-529 Dear Ms. Whitehead: This responds to your letter dated March 10, 2015 (postmarked March 12, 2015, and received March 16, 2015), by which you requested an advisory from the Pennsylvania State Ethics Commission (“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 an individual serving as a school director with regard to voting on a collective bargaining agreement between the school district and the education association representing the school district’s teachers, where: (1) the individual is employed as a tenured professional employee (teacher) in a different school district; and (2) in the aforesaid employment capacity, the individual is a participant in the Public School Employees’ Retirement System. Facts: You request an advisory from the Commission based upon submitted facts, the material portion of which may be fairly summarized as follows. You are a School Director for the Philipsburg-Osceola Area School District (the “School District”). You are Treasurer of the School District School Board. You are employed as a tenured professional employee (teacher) in the Bellefonte Area School District, in which capacity you are a participant in the Public School Employees’ Retirement System (“PSERS”). The Philipsburg-Osceola Education Association (“Education Association”) represents the teachers of the School District. You state that another School Director for the School District has advised you that your current participation in PSERS would preclude you from voting on a collective bargaining agreement between the School District and the Education Association. Based upon the above submitted facts, you ask whether the Ethics Act would permit you to vote on a collective bargaining agreement between the School District and the Education Association that would cover the terms and conditions of employment of the School District’s teachers. Whitehead, 15-529 May 1, 2015 Page 2 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 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: § 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 Whitehead, 15-529 May 1, 2015 Page 3 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. 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. Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§ 1103(b), (c), provide in part that no person shall offer or give to a public official/public employee anything of monetary value and no public official/public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official/public employee would be influenced thereby. Having established the above general principles, you are advised that absent a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act or an improper understanding contrary to Section 1103(b)/Section 1103(c) of the Ethics Act, the Ethics Act would not prohibit you from voting on a collective bargaining agreement between the School District and the Education Association that would cover the terms and conditions of employment of the School District’s teachers. 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 Whitehead, 15-529 May 1, 2015 Page 4 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: Based upon the submitted facts that: (1) you are a School Director for the Philipsburg-Osceola Area School District (the “School District”); (2) you are Treasurer of the School District School Board; (3) you are employed as a tenured professional employee (teacher) in the Bellefonte Area School District, in which capacity you are a participant in the Public School Employees’ Retirement System (“PSERS”); (4) the Philipsburg-Osceola Education Association (“Education Association”) represents the teachers of the School District; and (5) another School Director for the School District has advised you that your current participation in PSERS would preclude you from voting on a collective bargaining agreement between the School District and the Education Association, you are advised as follows. As a School Director for the 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. Absent a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act or an improper understanding contrary to Section 1103(b)/Section 1103(c) of the Ethics Act, the Ethics Act would not prohibit you from voting on a collective bargaining agreement between the School District and the Education Association that would cover the terms and conditions of employment of the School District’s teachers. 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 Whitehead, 15-529 May 1, 2015 Page 5 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