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HomeMy WebLinkAbout87-536 Liptak-McGrailMrs. Patricia Liptak - McGrail Attorney at Law 1131 Portsmouth Drive Port Vue, PA 15133 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 April 1, 1987 ADVICE OF COUNSEL 87 -536 Re: School Director, Participation, Collective Bargaining Agreement, Spouse, District Employee Dear Mrs. McGrail: This responds to your letter of March 18, 1987, wherein you requested the advice of the State Ethics Commission. Issue: Whether a school director may have access to information relating to the district's collective bargaining process when the director's spouse is an employee of the district. Facts: You currently serve as a member of the Board of School Directors in South Allegheny School District. You further advise that your spouse is a teacher who is employed by the district on the secondary level. The school district is currently in the process of negotiating a new teachers contract. You advise that you have not participated in any of the bargaining sessions, nor have you attended any of the board meetings where discussions are held and contract proposals are put together for submission to the teacher's negotiating team. You have requested the written advice of the State Ethics Commission regarding the extent to which you may be involved or attend Board meetings where the contract is to be discussed. You indicate that it would clearly be inappropriate for you to attend an actual bargaining session, but, you see no prohibition upon your being informed as to the Board of Directors positions and discussions relative to this contract. Discussion: As a member of a school board, you are clearly a public official as that term is defined in the State Ethics Act. 65 P.S. §402. As such, your conduct must conform to the requirements of that law. Krier, 84 -002; Blaney, 84 -003. The issue that you have presented for review, is one that has been generally reviewed by this Commission on a prior occassion. In the aforecited opinions, Krier, 84 -002 and Blaney, 84 -003, this Commission specifically addressed the issue of a school director's participation in the collective bargaining process when the director's spouse is an employee of the district. In an effort to be complete, we will reiterate herein the rationale of our decision in these matters. Patricia Liptak - McGrail April 1, 1987 Page 2 Under the provisions of the Ethics Act, a public official may not use his or her public office to secure financial gain other than the compensation allowed by law, for the official or a member of his or her immediate family. In the facts as you present them, your spouse is to be considered within the scope of the term "immediate family ". The question then becomes whether in discussions or voting on the adoption of the collective bargaining agreement or in participating in decisions regarding teacher negotiations, teacher grievances, or similar matters involving the Association, you would be utilizing your public office to secure financial gain as prohibited by Section 3(a) of the Ethics Act. In reviewing this matter, we are cognizant of the fact that we have previously concluded that where the question presented to a public official directly and individually impacts upon his or her spouse, we have ruled abstention is required. See , 82 -005. However, in the present case, you have presented no facts which would indicate that your spouse is directly and individually impacted or affected by either the proposed participation of the School Board in the collective bargaining agreement adoption process or in any specific teacher grievance matter. 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 your spouse will be affected no more or less thany any other teacher within the bargaining unit, the School You may, consistent with the provisions of the Ethics Act, participate in and perform your responsibilities as a School Director with respect to discussions on and the adoption of the collective bargaining agreement, teacher negotiations in general, and teacher grievances. Other rulings of this Commission indicate that a public official is required to abstain from participation in matters presented to the governmental body where he or she serves, only where those matters specifically relate to his or her employer, or where the matters involve non - routine items. See Reisinger, 146C and compare Stewart, 79 -070. We are also reminded that courts have often required an abstention because of "pecuniary" or financial interest only where those affected interests can be said to be direct, immediate, and particular, as distinct from the interests that might be shared by a larger group or the public in general. See Reckner v. School District of German Township, 341 Pa. 375, 19 A.2d 402 (1941) citing Commonwealth v. Raudenbush, 249 Pa. 86, 94 A.55 (1913). From this precedent it is apparent that the abstention requirement should, in most instances, be limited to requiring abstention where the public official has a direct, immediate, and particular personal interest in the matter which wuld be subject to his or her vote. Patricia Liptak - McGrail April 1, 1987 Page 3 In the case which you present, the fact that your spouse is also a teacher within the bargaining unit of the Union and would, therefore, be effected by the collective bargaining agreement between the School District and the Union would not necessarily, in and of itself, require your abstention. Abstention, in our estimation, would be mandated under Section 3(a) of the Ethics Act only where your spouse 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 teacher negotiations, a School Director, consistent with the Ethics Act, can vote on the ratification and /or adoption of the collective bargaining agreement. Of course, in any such action, the School Director would violate the State Ethics Act if she were to provide confidential information acquired as a School Board Director to her spouse to 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 a School Board Director or her spouse should be transmitted or utilized in the context of the collective bargaining agreement negotiations or otherwise. However, even if no violation of Section 3(a) of the Ethics Act would be apparent if a School Director voted 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 also required to assure the public that their financial interests present neither a conflict nor the appearance of a conflict with the public trust. Balanced against this goal is the duty of a School Director to perform the obligations of office, including dealing with the Union. We note than an analagous provision of 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. (h) 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. Patricia Liptak - McGrail April 1, 1987 Page 4 Under the Ethics Act, we believe we can and should adopt a similar requirement with respect to striking a balance between the goals and purpose of the Ethics Act in insuring the impartiality of public officials and permitting those officials to perform the duties of their office. We believe that pursuant to Section 1 of the Ethics Act, in order to assure the public that the public official's financial interests are sufficiently separated from the official's responsibility to the public, you should not participate in the negotiation process or discussions or meetings regarding the collective bargaining agreement with this Union. In this way, your influence in 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 you properly refrain from negotiations, meetings, and discussions as discussed above and where the final agreement presented for adoption or ratification affects the spouse in the same mannger and degree as other members of the bargaining unit, you may vote on the final ratification or adoption of the agreement. In relation to whether you may be kept informed as to the Board's position and status of the contract negotiations, as noted above, one of the primary concerns of the Ethics Commission's previous rulings in a similar situation concerned the potential access to confidential information. In this respect, if you were to be advised or involved in the discussions regarding the status of the negotiations and the Board's position in relation thereto, this particular aspect of our prior opinion would be defeated. As such, it would be the better practice for you to forego participating to any extent in the Board's process of reaching a contract proposal. As noted above, after the submission of said proposal for ratification the opinion of the Commission, as set forth above, would prevail. Conclusion: As a School Director, you would be considered a public official as that term is defined in the State Ethics Act. Your conduct as such an official must conform to the requirements of the State Ethics Act and the prior opinions of this Commission regarding a school director's abstention in matters relating to a collective bargaining agreement when said director's spouse is an employee of the school district. 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. Patricia Li ptak -McGrai 1 April 1, 1987 Page 5 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. Si ncerely, John J -Conti no Acting General Counsel