HomeMy WebLinkAbout90-520 ConfidentialSTATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
March 7, 1990
90 -520
Re: Conflict, Public Official, School Director, Education
Association, Collective Bargaining Agreement.
This responds to your letter of January 16, 1990, in which
you requested a confidential advice from the State Ethics
Commission.
Issue: Whether the Public Official and Employee Ethics Law
imposes any prohibition or restrictions upon a school director
from participating or voting in a collective bargaining process
when the school director is associated with a law firm which has
provided legal advice to the PSEA on matters not related to the
collective bargaining process.
Facts: On December 21, 1983 you were duly appointed as a member
of the Board of School Directors of the A District for a two year
term. Thereafter, you were nominated by both the Democratic and
Republican parties and elected in the November, 1985 and
November, 1989 General Elections. During your ten years with the
Board of School Directors you served two years in the office of
President, two years in the office of Vice - President as well as
in other capacities such as Chairman of the Board's Personnel
Committee for the calendar year 1986. During that time the Board
negotiated a five year collective bargaining agreement for its
professional employees, the B Association which is affiliated
with the National Education Association (NBA) and the
Pennsylvania State Education Association (PSEA). During that
period the Board entered into a collective bargaining agreements
with non - professional employees represented by other local PSEA
affiliates. The collective bargaining agreement has been subject
to state -wide publicity and has resulted in the representatives
of the Board and the SVEA and PSEA appearing as members of school
cooperation teams in conjunction with the Department of Labor and
Industry at various locations throughout the Commonwealth to make
presentations on the resolution of collective bargaining issues
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by and between school districts and associations representing
their professional and non - professional employees.
You are a 1981 graduate of C Law School. Upon graduation
you served a clerkship with D, US Circuit Judge for the E
Circuit. Thereafter you became associated with the F Law Firm
(Firm) and you have continued that affiliation to the present
date. Effective January 1, 1989 you became a share holder in the
Firm and concentrated your practice on representing management
interests and employment matters. To facilitate its practice of
law in other states, certain shareholders in the Firm are also
partners in the Pennsylvania General Partnership known as G Firm.
You are a general partner in G Firm which maintains various
offices in Pennsylvania. The lawyers and other personnel in
these offices provide legal and other services to clients.
On or about April 1989, the Firm began providing services to
PSEA. PSEA's legal representation on a statewide basis is the
responsibility of its Chief Counsel who supervises PSEA's legal
department in Harrisburg as well as the attorneys in the field
offices in the Commonwealth. On occasion the services of outside
counsel are utilized. Neither the Chief Counsel nor any of the
staff of PSEA are affiliated with the Firm. Generally PSEA
retains the services of H Attorney to provide legal services to
PSEA in the western region of the Commonwealth of Pennsylvania
who also provides such services on behalf of B Association. H
Attorney is not associated or affiliated with the Firm and has
provided legal services to PSEA for at least the last five years.
The services provided by the Firm to PSEA consist of
governmental relation services involved in presenting the
position of PSEA on issues other than collective bargaining
process under the Pennsylvania Public Employee Relations Act to
the General Assembly and to other governmental bodies. In
addition the Firm has on occasion provided legal advice to PSEA
on a limited case by case basis on matters not related to the
collective bargaining process. You have not at any time
personally provided services, consultation or counseling to the
PSEA or any of its affiliates through the Firm or independently
and have not been involved in any of the representations outlined
above. You have provided legal advice to various public school
districts in your legal practice. A District retains the
services of a solicitor who is in no way affiliated with the
Firm. In addition, A District has for approximately five years
retained the services of a special labor counsel, J Attorney, to
advise on labor and employment matters including negotiations
with PSEA and B Association. J Attorney is in no way affiliated
with the Firm. Your compensation as a shareholder in the Firm
and as a partner in the partnership is determined on a formula
basis at the beginning of each calendar year and is not directly
related to the income or receipt of any fees or compensation from
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any client or clients of the Firm. After referencing Section
1801 of the Pennsylvania Public Employee Relations Act, 43 P.S.
§1801(a), you note that current collective bargaining agreement
between A District and B Association will expire on June 30,
1991. There appears to be a likelihood that the parties will
soon choose to voluntarily enter into early negotiations for a
successor agreement. In addition the collective agreement for
support personnel will also expire this year. In light of the
fact that you played a role as Chairman of the Personnel
Committee during the negotiations of the prior five year labor
agreement, you are desirous of participating and voting in the
forthcoming collective bargaining process. You believe that you
may do so in light of the presented facts. After referencing the
preamble to the Ethics Act, you seek an advisory opinion
regarding your possible participation or voting in the collective
bargaining /grievance process with the affiliates of the PSEA.
Discussion: As a School Board Director, you are a public
official as that term is defined under the Ethics Law and hence
are subject to the provisions of that law.
Section 3(a) of the Ethics Law provides:
Section 3. Restricted Activities.
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest.
The following terms are defined in the Ethics Law:
Section 2. 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. "Conflict" or
"conflict of interest" 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
or his immediate family or a business with
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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.
"Business with which he is associated."
Any business in which the person or a member
of the person's immediate family is a
director, officer, owner, employee or has a
financial interest.
Section 3(b) and 3(c) of the Ethics Law provide in part that
no person shall offer to a public official /employee anything of
monetary value and no public official /employee shall solicit or
accept any thing of monetary value based upon the understanding
that the vote, official action, or judgement of the public
official /employee would be influenced thereby. Reference is made
to these provisions of the law not to imply that there has or
will be any transgression thereof but merely to provide a
complete response to the question presented.
In applying the above provisions of the Ethics Law and
definitions to the instant matter, Section 3(a) of the Ethics Law
would restrict you from voting or participating as to any private
pecuniary benefit for yourself or business with which you are
associated. Although you are associated with the partnership and
Firm, and those business entities have provided certain services
to the PSEA, it does not appear, and it is expressly assumed,
that the Firm does not provide any services to A District or the
B Association. In this regard you have stated that A District
retains a solicitor who is not affiliated with the Firm. Under
these circumstances and based upon those assumptions, you would
not be precluded from participating or voting as to the
collective bargaining /grievance process because your actions on
the Board would not inure to your benefit or the Firm.
Under the Ethics Law, a public official /employee is not
precluded from having outside business interests provided those
business interests do not impact upon the governmental body with
which the public official /employee is associated. Pancoe,
Opinion 89 -011. In this case, based upon the assumption that
the Firm or partnership does not represent A District or the B
Association, Section 3(a) of the Ethics Law would not preclude
you from participating or voting.
Page 5
Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Law; 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 Law. Specifically
not addressed in this advice is the applicability of the
Pennsylvania Public Employee Relations Act.
Conclusion: A school board member is a public official subject
to the provisions of the Ethics Law. Section 3(a) would not
restrict a school board member from participating or voting in a
collective bargaining /grievance process if the law firm with
which he is associated neither represents the school district nor
the association. Lastly, the propriety of the proposed conduct
has only been addressed under the Ethics Law.
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 in writing
and must be received at the Commission within 15 days of the date
of this Advice pursuant to 51 Pa. Code S2.12.
Sincerely,
Vincent Dopko,
Chief Counsel