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HomeMy WebLinkAbout84-555 MaielloMr. Alfred C. Maiello Four Mockingbird Plaza 394 Rodi Road Pittsburgh, PA 15235 RE: School Director; Participation; Collective Bargaining; Spouse Dear Mr. Maiello: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 April 26, 1984 ADVICE OF COUNSEL 84 -555 This responds to your letter of January 30, 1984, in which you as solicitor and on behalf of the Norwin School District, requested advice from the State Ethics Commission. Issue: You ask whether a School Director, whose spouse, brother, and sister -in -law are employed by the School District as teachers, may negotiate and vote on the collective bargaining agreement between the School District and the union representing persons within the district, hereinafter, the Teachers' Union including the director's spouse, brother, and sister -in -law. Facts: You represent the Norwin School District, which will soon be involved in contract negotiations with the Teachers Union. You state that the School Board's negotiating team is comprised of School directors and administrative staff, and that a proposed appointee to the negotiating team has a brother who is a school principal, a spouse who is a teacher, a brother who is teacher, and a sister -in -law who is a teacher with the District. Although the principal is not a member of the Teachers' Union, the spouse, brother, and sister -in -law are all members of the Union. You state, however, that only the School Director's spouse resides in the same household as the School Director. The School Director would like to participate on the School Board's negotiating team, however, there are some concern that a conflict of interest exists with regard to his participation. You have, therefore, requested advice from the State Ethics Commission, and you have requested answers to three specific questions which are as follows: 1. may the School Director, hereinafter, the School Director or Member, with the above relationships vote on acceptance or rejection of the labor contract; Mr. Alfred C. Maiello April 26, 1984 Page 2 2. - may this School Director participate in the planning strategy sessions in connection with the teachers' contract negotiation; and 3. may he participate on the actual negotiating team. Discussion: Initially, the Ethics Commission notes that its jurisdiction and its power are strictly limited to the authority granted it in 65 P.S. 401 et seq. Thus, it has no authority to interpret and /or enforce the provisions of statutes or codes other than the Ethics Act, and this Advice should not be construed as "clearance" to act under regulations, ordinances, or laws other . than the Ethics Act. As a School Director, this individual is a "public official" as that term is defined in the State Ethics Act. See 65 P.S. 402. As such, his conduct as a public official must conform to the requirements of the State Ethics Act. Under the provisions of the Ethics Act, a public official may not use his public office to secure financial gain other than compensation provided by law for himself or a member of his immediate family. 65 P.S. 403(a). The term "immediate family" is defined as a spouse residing in the person's household and minor dependent children. 65 P.S. 402. Thus, in this case the spouse- teacher of the School Director is to be considered within the scope of the term "immediate family" of the School Director. However, the principal- brother, the teacher - brother, and the teacher - sister -in -law are not to be considered within the scope of the term "immediate family" in light of the facts, as you have stated and the definitions within the Ethics Act. Thus, the scope of our concern under Section 3(a) is focused on the situation of the spouse of the School Director and the question becomes whether in participating on the negotiating team or participating in discussions and votes regarding a collective bargaining agreement, the School Director would be utilizing his public office to obtain financial gain as prohibited by Section 3(a) of the Ethics Act. In reviewing this matter, we are cognizant of the fact that we had previously concluded that where the question presented to a public official directly and individually impacts upon his or her spouse, we have ruled that abstention is required. See Leete, 82 -005. However, and in the present case, no facts have been presented which would indicate that the individual spouse of the School Director is directly and individually impacted or affected any more than other members of the Teachers' Union by the proposed participation of the School Director in the collective bargaining agreement adoption process. Thus, we perceive your question to be substantively different from that which we addressed in Leete. The question which you present is whether, even if the spouse will be affected no more or no less than any other teacher within the bargaining unit, the School Director may, consistent with the provisions of the Ethics Act, participate in and perform his responsibilities as a School Director with . respect to discussions on and the adoption of the collective bargaining agreement. Mr. Alfred C. Maiello April 26, 1984 Page 3 In most instances, an abstention requirement has been limited to requiring abstention where a public official has a direct, immediate, and particular personal interest in the matter which would be subject to his vote. See Krier, 84 -002. In the case which you present, the fact that the spouse of the School Director is also a teacher within the bargaining unit of the Union and would, therefore, be affected by the collective bargaining agreement between the School District and the Union would not necessarily, in and of itself, require the abstention of the School Director. Abstention, in other opinions of the State Ethics Commission has been mandated under Section 3(a) of the Ethics Act in similar circumstances only where the spouse of the School Director would be individually and specifically benefitted to an extent different or unique from those benefits that would be provided to other similarly situated members of the bargaining unit. Otherwise, with respect to the teachers' contract, the School Director, consistent with the Ethics Act, can vote on the ratification and /or adoption of collective bargaining agreement. Krier, supra and Blaney, 84 -003. It should be noted, however, that in any such action, the School Director would violate the State Ethics Act if he were to provide confidential information acquired as a School Director to his spouse be used to that spouse's benefit as set forth in Section 3(a) of the Ethics Act. No such information which is acquired by the School Director should be transmitted to his spouse or be transmitted or utilized in the context of the collective bargaining agreement negotiations or otherwise. Although no violation of Section 3(a) of the Ethics Act is apparent if the School Director votes on the final adoption of the collective bargaining agreement, we must review this question in light of Section 1 of the Ethics Act. Under this general "purpose" provision of the Ethics Act, public officials are requir'd to assure the public that there financial interests present neither a conflict nor the appearance of a conflict with the public trust. Balanced against this goal is the duty of the School Director to perform the obligations of his office, including dealing with the Union. We note that an analogous provision in the Public Employee Relations Act, commonly referred to as Act 195, states with respect to "conflict of interest" that: (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 interests of the public employer, shall participate on behalf of the public employer in the collective bargaining process with the provision that such person may, where entitled vote on the ratification of the agreement. Mr. Alfred C. Maiello April 24, 1984 Page 4 (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. Under the Ethics Act, the State Ethics Commission in its Opinions cited above, has adopted a similar requirement with respect to striking a balance between the goals and purposes of the Ethics Act in insuring the impartiality of public officials and permitting those officials to perform the duties of their offices. These Opinions indicate that pursuant to Section 1 of the Ethics Act, in order to assure the public that the public official` financial interests are sufficiently separated from the official' responsibility to the public, the School Director should not participate in the negotiation process or discussions or meetings regarding the collective bargaining agreement with the Teachers' Union. In this way, his influence of the School District's decisions as to the direction and outcome of this process is eliminated. This will also insure that no confidential information will be acquired during this process and, therefore, the problem of use of such information is minimized if not eliminated. However, where the School Director properly refrained from negotiations, meetings, and discussions as discussed above, and where the final agreement presented for adoption or ratification affects the spouse and the same manner and degree as other members of the bargaining unit, the School Director may vote on the final ratification or adoption of the agreement. See Krier and Blaney, supra. Applying the above discussion to your specific questions, the School Director may participate in the final vote on acceptance or rejection of the contract with the Teachers' Union so long as the agreement affects his spouse no more or less than other members of this Union. However, he may not participate on the actual negotiating team nor may he participate in any discussions or planning strategy sessions in connection with these contract negotiations. Conclusion: Under the circumstances as set forth above, Section 3(a) of the Ethics Act would not prohibit the School Director from participating in the final vote upon the collective bargaining agreement where his spouse is a teacher covered by the bargaining agreement so long as that agreement is within the parameters oultined above. However, the cautions with respect to confidential information expressed in this advice must be observed. Mr. Alfred C. Maiello April 26, 1984 Page 5 Further, in order to effect the purpose of the Ethics Act as expressed in Section 1 of the Ethics Act and to minimize or eliminate the problems ofuse of confidential information under Section 3(a), the School Director should refrain from participating in negotiations, discussions, or meetings regarding the collective bargaining agreement, but he may vote on the final adoption or ratification of the collective bargaining agreement where: 1. he properly refrained from participation in meetings, negotiations, and discussions as set forth above; 2. the final agreement to be voted upon affects his spouse no more than it affects any other member of the bargaining unit. Pursuant to Section 7(9)(ii), this 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, providing the requestor 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. CW /rdp Sincerely, andra S. Christianson General Counsel