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HomeMy WebLinkAbout17-562 McTiernanC�r•a A STATE ETHICS COMMISSION 309 FINANCE BUILDING PG, BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL August 24, 2017 To the Requester: Mr. Robert L. McTiernan, Esquire Tucker Arensberg, P.C. 17 -562 Dear Mr. McTiernan: This responds to your letters dated July 21, 2017, and July 27, 2017, 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 a human resources director for a school district with regard to 'participating in negotiations Eto a new collective bargaining agreement between the school district and the bargaining unit for the school districts teachers, where the fiance of the human resources director is employed as a tenured teacher with the school district and is a member of the bargaining unit. Facts: As Solicitor for the West Jefferson Hills School District ( "School District "), of caFed in Allegheny County, Pennsylvania, you have been authorized by the School District Schoof Board to request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. An individual ( "the Individual ") who is employed as the Human Resources Director for the School District is a key member of the School District's collective bargaining team with respect to all contract negotiation issues. You state that the Individual recently led the School District's collective bargaining team with regard to a collective bargaining agreement covering the non - professional employees of the School District. The Individual's fiance is employed as a tenured teacher ( "the Tenured Teacher ") with the School District. The Tenured Teacher is a member of the bargaining unit represented by the Jefferson Federation of Teachers ( "the Federation "). The current collective bargaining agreement between the School District and the Federation is set to expire on June 30, 2020. Negotiations on a new collective bargaining agreement between the School District and the Federation would not begin until the fall of 2017 at the earliest. The School District would like the Individual to serve as a member of the negotiating team for a new collective bargaining agreement with the Federation. FAX: (717) 787 -0806 a Web Site: www,ethics.state.)a.us 0 e- mail: ethics(c�state.pa.us McTiernan, 17 -562 August 24, 2017 Page 2 Based upon the above submitted facts, you ask whether the Ethics Act would permit the Individual to participate in negotiations pertaining to a new collective bargaining agreement between the School District and the Tenured Teacher's bargaining unit. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of e 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 disci(osed all of the material facts. Preliminarilyy, it is noted that the submitted facts do not include an official job description for the Individual's position as the Human Resources Director for the School District: This Advice assumes, without deciding, that in her capacity as the Human Resources Director for the School District, the Individual is a public employee subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest 65 Pa.C.S. § 1103(a). The following terms related to Section 1103(a) 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. McTiernan, 17 -562 August 24, 2017 Page 3 "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. In each instance of a conflict of interest, the public official/public employee would be required to abstain from participation. The abstention requirement would extend 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. 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 de ree" (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 mbers 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 ap lying the above provisions of the Ethics Act to the instant matter, you are advised as follows. Subject to the de minimis exclusion and the class/subclass exclusion, pursuant to Section 1103(a) of the Ethics Act, the Individual would have a conflict of interest in her capacity as the Human Resources Director for the School District in matters that would financially impact her, a member of her immediate family, or a business with which she or a member of her immediate family is associated. The Tenured Teacher, as the Individual's fiance, is not a member of the Individual's "immediate family" as that term is defined in the Ethics Act. Cf., Pulice v. State Ethics Commission, 713 A.2d 161 (Pa. Cmwlth. 1998), allocatur den ei , 557 Pa. 642, 732 A.2d 12 1998) (Holding that a relative not encompassed by the family relationships listed in the Ethics Act's definition of the term "immediate family " --in that case, a sop -in- law —would not be considered a member of immediate family). However, when the Tenured Teacher would become the McTiernan, 17 -562 August 24, 2017 Page 4 Individual's spouse, he would then be considered a member of the Individual's "immediate family" as that term is defined in the Ethics Act. You are advised that at such times as the Tenured Teacher would be the Individual's fiance, absent some basis for a conflict of interest such as a private pecuniary benefit to the Individual, a member of her immediate family, or a business with which she or a member of her immediate family s associated, the Individual would not have a conflict of interest under Section 1103(x) of the Ethics Act with regard to E in negotiations pertaining to a new collective bargaining agreement between the School District and the Tenured Teacher's bargaining unit. You are further advised that at such times as the Tenured Teacher would be the Individual's spouse, the Individual would have a conflict of interest under Section 1103(a} of the Ethics Act with regard to participating in negotiations pertaining to a new collective bargaining agreement between the School District and the Tenured Teacher's bargaining unit unless the class /subclass exclusion would be applicable as to any imp te in act upon the Tenured Teacher. See, Davison, Opinion 08 -006 at 5. (The submitted facts do not enable a conclusive dermination that regard.) As noted above, in each instance of a conflict of interest, the Individual would be required to abstain from participation. 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 bargamEng. 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 Commission does not have the statutory jurisdiction to administer or interpret the Public Employee Relations Act, this advisory may not provide 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) an individual ( "the Individual") who is employed as the Human Resources Director for the West Jefferson Hills School District ( "School District "), located in Allegheny. County, Pennsylvania, is a key member of the School District's collective bargaining team with respect to all contract negotiation issues; (2) the Individual recently led the School District's collective bargaining team with regard to a collective bargaining agreement covering the non- McTiernan, 17 -562 ugust 24, 2017 Page 5 professional employees of the School District; (3) the Individual's fiance is employed as a tenured teacher ( "the Tenured Teacher ") with the School District; (4) the Tenured Teacher is a member of the bargaining unit represented by the Jefferson Federation of Teachers ( "the Federation "); (5) the current collective bargaining agreement between the School District and the Federation is set to expire on June 30, 2020; (6) negotiations on a new collective bargaining agreement between the School District and the Federation would not begin until the fall of 2017 at the earliest; and (7) the School District would like the Individual to serve as a member of the negotiating team for a new collective bargaining agreement with the Federation, you are advised as follows. This Advice assumes, without deciding, that in her capacity as the Human Resources Director for the School District, the Individual is a ublic employee subject to the provisions of the Public Official and Employee Ethics Act "Ethics Act "), 65 Pa.C.S. § 1101 et sseq. Subject to the de minimis exclusion and 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, the Individual would have a conflict of interest in her capacity as the Human Resources Director for the School District in matters that would financially impact her, a member of her immediate family, or a business with which she or a member of her immediate family is associated. The Tenured Teacher, as the Individual's fiance, is not a member of the Individual's "immediate family" as that term is defined in the Ethics Act. However, when the Tenured Teacher would become the Individual's spouse, he would then be considered a member of the Individual's "immediate family" as that term is defined in the Ethics Act. At such times as the Tenured Teacher would be the Individual's fiance, absent some basis for a conflict of interest such as a private pecuniary benefit to the Individual, a member of her immediate family, or a business with which she or a member of her immediate family is associated, the Individual would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in negotiations pertaining to a new collective bargaining agreement between the School District and the Tenured Teacher's bargaining unit. At such times as the Tenured Teacher would be the Individual's spouse, the Individual would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in negotiations pertaining to a new collective bargaining agreement between the School District and the Tenured Teacher's bargaining unit unless the class/subclass exclusion would be applicable as to any impact upon the Tenured Teacher. In each instance of a conflict of interest, the Individual would be required to abstain from participation. 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 Mc7iernan, 17 -562 August 24, 2017 Page 6 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 (777787 - 0806). Failure to Me such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Robin M. Hittie Chief Counsel