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Home My WebLink About90-602 AbrahamsenSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 17, 1990 Mr. Edwin A. Abrahamsen Abrahamsen, Moran & Conaboy, P.C. W.C. Carter Building 205 -207 North Washington Avenue Scranton, PA 18503 90 -602 Re: Conflict, Public Official, Immediate Family, School Director, Spouse. Dear Mr. Abrahamsen: This responds to your letters of September 13, 1990 and September 18, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon school director from voting for a collective bargaining agreement when his spouse is a teacher within the district. Facts: As solicitor for the Scranton School District (District) and on behalf of School Director Robert Casey you request advice as to whether Mr. Casey may vote to accept a collective bargaining agreement with the District's teachers union. Mr. Casey's wife is a member of the teachers union and will obtain the same benefits as all other members of the collective bargaining unit. After noting that Mr. Casey's spouse is one of four teachers in the District who teach English as a second language, the collective bargaining agreement provides no special treatment as to this group of teachers. You conclude by requesting advice as to the propriety of Mr. Casey voting on the collective bargaining agreement under the Ethics Law. Discussion: As a school director for Scranton School District, Mr. Casey is a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. Preliminarily, advisory rulings from the State Ethics Commission address only future, prospective conduct. If any action. has occurred, such past conduct is specifically not addressed in this advisory. Mr. Edwin A. Abrahamsen Page 2 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 as follows: 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 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. "Immediate family." A parent, spouse, child, brother or sister. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee and no public official /employee shall solicit or accept anything 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 Mr. Edwin A. Abrahamsen Page 3 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. Since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and since spouse is in the familial relationship delineated above, Section 3(a) of the Ethics Law would otherwise prohibit Mr. Casey from voting or participating on a matter involving his spouse. However, it is noted that his spouse would be affected to the same degree as 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. Therefore since his spouse as a teacher in the District who would be in a class /sub - class, Section 3(a) of the Ethics Law would not restrict such voting to approve the collective bargaining agreement provided his spouse is in a class /sub -class consisting of more than one person and provided she is affected to the same degree as all other members of the class /sub - class. Davis, Opinion 89 -012. In VanRensler, Opinion 90 -017, the State Ethics Commission specifically held that Section 3(a) of the Ethics Law would not prohibit school directors from voting on the ratification of a collective bargaining agreement when members of their immediate families are school district employees who are represented by various bargaining units; however, those school directors could not participate in the negotiations given the confidential nature of that process. Therefore, Mr. Casey clearly could not be part of the collective bargaining process or privy to confidential information but he could vote on the ratification of the collective bargaining agreement since it factually appears that his wife is in the subclass of teachers in the District and she is not treated any differently in terms of the contract than any of the other teachers. 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 Law has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: As school director of Scranton School District, Mr. Casey is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would otherwise prohibit Mr. Casey from participating or voting on a matter regarding his spouse who is a member of his immediate family as term is defined under the Ethics Law; however, Mr. Casey would not be precluded from voting on the final ratification of Mr. Edwin A. Abrahamsen Page 4 the collective bargaining agreement for Scranton School District teachers provided his spouse is in a class /sub -class consisting of more than one person and provided his spouse is affected to the exact same degree as all other members of the class /sub- class. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. S' erely, Vincent J."'opko, Chief Counsel