HomeMy WebLinkAbout88-658 VaughanMr. Craig Vaughan
R.D. #1
Blackwoods Road
Freedom, PA 15402
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
December 5, 1988
88 -658
Re: Conflict of Interest, School Director, Collective Bargaining
Negotiations, Spouse as Teacher
Dear Mr. Vaughan:
This responds to your letter of October 18, 1988, in which
you request advice from the State Ethics Commission.
Issue: Whether the State Ethics Act presents any restrictions or
prohibition upon a school director from participating in
collective bargaining negotiations with the teacher's association
when his spouse is not a member of the association's negotiating
team and he is not a member of school district's negotiating
team.
Facts: You state that you are a School Director in the Freedom
Area School District and that you request clarification as to
the application of Krier, Opinion 84 -002 and the conduct of the
school superintendent. After noting that your wife has been a
teacher in the District for fifteen years and that you have been
a school director for seven, you state that the District is in
collective bargaining negotiations with the Freedom Area
Education Association. You advise that your wife is not a member
of the Association's negotiating team and that you are not a
member of the District's negotiating team. You then inquire as
to whether participation in collective bargaining negotiations
extends to an executive session of the School Board and in
particular whether you could be present; whether you could listen
to discussions of financial or non financial contract items and
whether you could express your opinion on such items.
Additionally, you ask whether you could be present during a
public meeting of the School Board regarding contract
negotiations and express your opinion thereon. Lastly, you seek
Mr. Craig Vaughan
December 5, 1988
Page 2
advice as to whether you are permitted to review information
distributed to the Board concerning contract negotiations. You
then state that if you are not allowed to participate in the
above as a publicly elected official, you wonder how you would be
able to make an informed judgment on the issue which would affect
50% of your current operating expenses and which might require an
increase in local taxes.
You then turn to a second matter concerning conduct of the
school superintendent regarding the confidentiality of School
Board discussions. You state that the superintendent
voluntarily contacted a local newspaper and described in detail
executive sessions matters regarding contract negotiations and
you seek answers regarding whether such conduct on the part of
the superintendent constitutes a breach of professional ethics,
and if so, the possible remedies available to the Board and the
recommendations the Commission might have on this matter.
Discussion: As a School Director for Freedom Area School
District, you are a "public official" as that term is defined
under the Ethics Act. 65 P.S. §402; 51 Pa. Code §1.1. As such,
your conduct is subject to the provisions of the Ethics Act and
the restrictions therein are applicable to you.
Section 3. Restricted Activities.
(a) No public official or public employee
shall use his public office or any
confidential information received through his
holding public office to obtain financial
gain other than compensation provided by law
for himself, a member of his immediate
family, or a business with which he is
associated. 65 P.S. §403(a).
Under Section 3(a) quoted above, the State Ethics Commission
has determined that use of office by a public official to obtain
a financial gain for himself or a member of his immediate family
or a business with which he is associated which is not provided
for in law transgresses the above provision of law. Thus, use of
office by a public official to obtain a financial gain which is
not authorized as part of his compensation is prohibited by
Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed
McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466
A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v.
State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536
(1987). Similarly, Section 3(a) of the Ethics Act would prohibit
a public official /employee from using public office to advance
his own interests; Koslow, Order 458 -R, affirmed Koslow v. State
Mr. Craig Vaughan
December 5, 1988
Page 3
Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988).
Likewise, a public official /employee may not use the status or
position of public office for his own personal advantage; Huff,
Opinion 84 -015.
Section 3. Restricted activities.
(d) Other areas of possible conflict shall be
addressed by the commission pursuant to paragraph (9)
of Section 7. 65 P.S. 403(d).
Under the above provision of law, the Ethics Commission,
however, is also empowered to address other areas of possible
conflict pursuant to Section 3(d). 65 P.S. 5403(d). Fritzinger,
Opinion 80 -008; DeBenedictis, Opinion 86 -002. The parameters of
the type of activity encompassed by this provision are generally
reviewed in light of the preamble to the Ethics Act which
enunciates the legislative intent of the Act. The intent and
purpose of the Act is to strengthen the faith and confidence of
the people in their government by assuring the public that the
financial interests of the holders of public office present
neither a conflict nor the appearance or a conflict with the
public trust. A public official or employee, pursuant to this
provision, is to ensure that their personal financial interests
present neither a conflict nor the appearance of a conflict with
the public trust. 65 P.S. §401. Such a conflict may exist
where an individual represents one or more adverse interests.
Alfano, Opinion 80 -007; where an individual serves in positions
that are incompatible or conflicting; Nelson, Opinion 85 -009, or
where such an official or employee accepts compensation to which
he is not entitled. Domalakes, Opinion supra.
The issue that you raise in the instant matter regarding the
limitations on participation in collective bargaining
negotiations has been addressed by the Commission in /Crier,
Opinion supra and Blaney, Opinion 84 -003. The Commission opined
in both of these decisions that a School Director should refrain
from participation in negotiations, discussions or meetings
regarding the collective bargaining but the school board member
could vote on the final adoption or ratification provided the
school director properly refrained during the collective
bargaining process and provided the school board member's spouse
was not affected by the agreement anymore than any other member
of the bargaining unit. In reaching its decision, the Commission
relied upon a conflict of interest provision in the Public
Employee Relations Act which provides as follows:
Mr. Craig Vaughan
December 5, 1988
Page 4
§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 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.
The rationale for the Commission's decision is that a school
director as a public official should not use public office or
confidential information, as restricted by Section 3(a) of the
Ethics Act quoted above, to the benefit of his spouse /teacher.
The Commission also referenced the Preamble of the Ethics Act
which provides in part that public office is a public trust and
that the people have a right to be assured that the financial
interests of the holders of public office present neither a
conflict nor even the appearance of a conflict with the public
trust. 65 P.S. §401. Therefore, based upon the Krier and
Blaney, decision, supra, you would not be permitted under
Sections 3(a) and 3(d) of the Ethics Act to attend executive
sessions wherein financial or non financial contracts items would
be discussed. The foregoing restriction is applicable so as to
remove the school director from obtaining confidential
information regarding contract negotiations. As to your second
inquiry concerning your presence at a public meeting for the
purpose of expressing your opinion on negotiations, the foregoing
would he restricted because you could as a school board member
through the expression of your opinion have an impact upon the
contract negotiations. Finally, you should not avail yourself of
written information regarding the school board concerning
contract negotiations because once again that would provide you
with confidential information as to the collective bargaining
process. As to your concern regarding how you could make an
informed judgment on the issue in light of the above restrictions
upon your conduct, the Commission did not preclude the school
Mr. Craig Vaughan
December 5, 1988
Page 5
directors in Krier and Blaney, supra from voting on the final
adoption provided there was non participation in the collective
bargaining agreement and provided the agreement did not affect
his or her spouse anymore than any other member of the bargaining
unit. Thus, even though you would not participate as outlined in
the above decisions and as detailed in the response to your
inquiries, you would have a period of time after the conclusion
of the bargaining negotiations which would yield a tentative
agreement and before the time of the actual vote to review that
tentative agreement so that you could make an "Informed judgment'
on the issue.
Turning to your inquiry as to conduct of the school
superintendent, be advised that the authority of the Ethics
Commission to issue an advisory opinion regarding a person's
duties under the Ethics Act is limited by statute to those
persons who requested relative to their duties. 65 P.S.
§407(9)(i)(ii).Since the Commission may not issue an
opinion /advice to a third party concerning the duties of some
other person under the Ethics Act, the propriety of the school
superintendent's conduct may not be addressed in this advice. In
any event, the above quoted provision of law further limits the
issuance of an opinion /advice to a person as to prospective
course of conduct; since the activity in question has already
occurred, such an advisory /opinion could not be issued in any
event.
Lastly, 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.
Conclusion: As a School Director for Freedom Area School
District, you are a public official subject to the provisions of
the State Ethics Act. Pursuant to the opinions of the Commission
in Krier and Blaney, supra, you are advised that under Sections
3(a) and 3(d) of the Ethics Act you may not participate in
negotiations, discussions or meetings regarding the collective
bargaining agreement between the Freedom Area School District and
the Education Association but you may vote on the final adoption
or ratification of same provided you properly refrained in
participating in the meetings, negotiations, and discussions and
provided that your teacher /spouse would not be affected any more
than any other member of the bargaining unit. Lastly, the
propriety of the proposed conduct has only been addressed under
the Ethics Act.
Mr. Craig Vaughan
December 5, 1988
Page 6
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.
such.
This letter is a public record and will be made available as
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.
Vincent '1. Dopko,
General Counsel