HomeMy WebLinkAbout18-542 ReddingerPHONE: 717- 783 -1610
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ADVICE OF COUNSEL
July 10, 2018
To the Requester:
Mr. William W. Reddinger
Dear Mr. Reddinger:
FACSIMILE: 717-787-0806
WEBSITE: www.ethiGS.oa.00v
18 -542
This responds to your letter dated June 10, 2018, 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
F —a.TS. § 1101 et she ., would impose prohibitions or restrictions upon a school director,
who has a child who is employed as a teacher with the school district, with regard to
participating in labor negotiations concerning the school district's teachers or the school
district's support staff.
Facts: You request an advisory from the Commission based upon the following
ssuGmltted facts.
You are a School Director for the Redbank Valley School District ( "School
District "). You have a child who is employed as a teacher with the School District. Your
child is married and does not reside with you.
Based upon the above submitted facts, you ask whether the Ethics Act would
permit you to participate in labor negotiations concerning the School District's teachers
or the School District's support staff.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the 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 disclosed all of the material facts.
As a School Director for the School District, you are a public official subject to the
provisions of the Ethics Act.
Sections 1103(a) and 11030) of the Ethics Act provide:
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Page 2
§ 1103. Restricted activities
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
0) Voting conflict.- -Where voting conflicts are not
otherwise addressed by the Constitution of Pennsylvania or
by any law, rule, regulation, order or ordinance, the following
procedure shall be employed. Any public official or public
employee who in the discharge of his official duties would be
required to vote on a matter that would result in a conflict of
interest shall abstain from voting and, prior to the vote being
taken, publicly announce and disclose the nature of his
interest as a public record in a written memorandum filed
with the person responsible for recording the minutes of the
meeting at which the vote is taken, provided that whenever a
governing body would be unable to take any action on a
matter before it because the number of members of the body
required to abstain from voting under the provisions of this
section makes the majority or other legally required vote of
approval unattainable, then such members shall be
permitted to vote if disclosures are made as otherwise
pprovided herein. In the case of a three - member governing
body of a political subdivision, where one member has
abstained from voting as a result of a conflict of interest and
the remaining two members of the governing body have cast
opposing votes, the member who has abstained shall be
permitted to vote to break the tie vote if disclosure is made
as otherwise provided herein.
65 Pa.C.S. §§ 1103(a), 0).
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
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Page 3
the performance of duties and responsibilities unique to a
particular public office or position of public employment.
"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
it or "conflict of interest," 65 Pa.C.S. § 1102, a public official/public employee is
prohibited from using the authority of public officelemployment or confidential
information received byy holding such a public position for the private pecuniary benefit
of the public officiallpublic 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 not be
limited merely to voting, but 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. Subject to certain statutory exceptions, in each instance of a voting
co ^nom Section 1103(1 of the Ethics Act would require the public official/public
employee to abstain an to publicly disclose the abstention and reasons for same, both
orally and by filing a written memorandum to that effect with the person recording the
minutes.
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 officiallpublic 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 degree" (in no
way differently) than the other members of the class/subclass, 65 Pa.C.S. §`g 1102; see,
Kablack, Opinion 02 -003; Rubenstein, Opinion 01 -007. The first criterion of the
excusion is satisfied where t i— members 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 Iying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
Your child is a member of your `,immediate family" as that term is defined in the
Ethics Act. Subject to the de minimis exclusion and the class/subclass exclusion,
pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in
matters before the School District School Board that would financially impact you, a
Ju dyJ [ 10; 201 18-542 -
Page 4
member of your immediate family such as your child, or a business with which you or a
member of your immediate family is associated.
You are advised that you would have a conflict of interest under Section 1103(a)
of the Ethics Act with regard to participating in labor negotiations concerning the School
District's teachers unless the class /subclass exclusion would be applicable as to any
impact upon your child. See, Davison, Opinion 08 -006 at 5. (The submitted facts do
not enable a conclusive determination m that regard.)
You are further advised that absent some basis for a conflict of interest such as a
private pecuniary benefit to you, a member of your immediate familyy such as your child,
or a business with which ou or a member of your immediate family is associated, you
would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard
to participating in labor negotiations concerning the School District's support staff.
In each instance of a conflict of interest, you would be required to abstain from
partici ation, which would include voting unless a voting conflict exception of Section
1103(j� of the Ethics Act would be applicable. Additionally, the disclosure requirements
of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting
conflict.
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 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. 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) you are a School Director
or the Redbank Valley School District ( "School District "); (2) you have a child who is
employed as a teacher with the School District; and (3) your child is married and does
not reside with you, you are advised as follows.
J 1 10 ` 0 18-542
Page 5 18
As a School Director for the School District, you are a public official 'u 1) to the
provisions of the Public Official and Employee Ethics Act ("Ethics Act "), 65 M.C.S. Pa §
1101 et se q. Your child is a member of your "immediate family" as that term is defined
i'i
in the P cs Act. 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, pursuant to Section 1103(a ) of the Ethics Act, you would have a conflict
of interest in matters before the School District School Board that would financially
impact you, a member of your immediate family such as your child, or a business with
which you or a member of your immediate family is associated.
You would have a conflict of interest under Section 1103(a) of the Ethics Act with
regard to participating in labor negotiations concerning the School District's teachers
unless the class /subclass exclusion would be applicable as to any impact upon your
child. Absent some basis for a conflict of interest such as a private pecuniary benefit to
you, a member of your immediate family such as your child, or a business with which
you or a member of your immediate family is associated, you would not have a conflict
of interest under Section 1103(a) of the Ethics Act with regard to participating in labor
negotiations concerning the School District's support staff. In each instance of a conflict
of interest, you would be required to abstain from participation, which would include
voting unless a voting conflict exception of Section 11030) of the Ethics Act would be
applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act
would have to be satisfied in the event of a voting conflict.
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 aMearance before the Commission will be
scheduled and a formal Opinion will be issued by the Commission.
Any such appeal must be in writingg and must be actual)
received at the Commission within thirty (30) days of the date of pis
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 (717-787-0806). Failure to
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
Robin M. Hittie
Chief Counsel