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HomeMy WebLinkAbout91-508 MattieMr. Christian T. Mattie, III P.O. Box 266 150 Main Street Eldred, PA 16731 (1) STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 28, 1991 91 -508 Re: Conflict, Public Official /Employee, School Director, Vote, Collective Bargaining Agreement, Negotiating Team, Contract, Bargaining Unit, Budget, Immediate Family. Dear Mr. Mattie: This responds to your letter of December 19, 1990, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Public Official and Employee Ethics Law presents any restrictions upon a school board director whose spouse is a teacher and member of the Employee Bargaining Unit with regard to: Receiving financial information for a proposed budget and eventually voting on that budget; and /or (2) Receiving information relating to the background of the negotiations and an analysis of the tentative contract, once a tentative contract has been reached with the bargaining unit, either before or after the bargaining unit has approved the tentative contract. Facts: You are the solicitor for the Port Allegheny School District. You have been asked by a school board member whose spouse is a teacher and member of the bargaining unit to inquire with the State Ethics Commission regarding the above issues. The Port Allegheny School District is a school district of the third class under the Public School Code of 1949, 24 P.S. Section 6- 671, and must meet statutorily imposed deadlines with respect to preparing and adopting a proposed budget and making the proposed budget available for public inspection. Shortly after the first of the year, the administration begins to prepare the budget by compiling financial information which is made available to members of the school board. You have submitted six numbered exhibits consisting of various documents which exemplify the type Mr. Christian T. Mattie, III Page 2 of information made available to members of the school board by the administration at various stages of preparing the budget. For each document you have provided an explanation of the information set forth in the document. The said documents are incorporated herein by reference. The school district's present contract with the teachers will expire on June 30, 1991. The bargaining unit represents approximately eighty teachers. The association has requested that the district bargain for a successor contract but you are assuming that it will not be reached and ratified before the school board members will need to receive information relating to the budget for 1991 -1992. The district will be negotiating with the bargaining unit while the budgetary information is being compiled and provided to board members. The documents which would be made available to the school board members would show proposed changes for total salary and fringe benefits as well as categorized information regarding proposed increases or decreases in salaries. The school board member whose spouse is a teacher and member of the bargaining unit will not be participating on the district's negotiating team. However, there will be information provided by the negotiating team to the administration regarding the negotiations, which information will be used by the administration in preparing financial figures for the proposed budget. Furthermore, the negotiating team's analysis would be provided to the board members when a tentative contract is reached and before the board members vote on the agreement. Discussion: As an elected official for the Port Allegheny School District, a school board director is a public official as that term is defined under the Ethics Law, and hence is subject to the provisions of that law. 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 Mr. Christian T. Mattie, III Page 3 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 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. In Van Rensler, Opinion 90 -017, the State Ethics Commission recently had occasion to consider issues similar to those which you have presented. The issue in Van Rensler was whether the Ethics Law prohibited school board directors from participating on a negotiating team and voting on a collective bargaining agreement when members of their immediate families were school district employees represented by the bargaining units. The Commission concluded that the Ethics Law would not restrict the school board directors from voting on the finalized agreement but that the school board directors could not take part in the negotiations leading to the finalized agreement. In reaching this conclusion, the Commission held that the school board directors could vote on the finalized agreement because of the Mr. Christian T. Mattie, III Page 4 exclusion in the definition of "conflict or conflict of interest" under the Ethics Law, which exclusion permits the use of the authority of office if the immediate family members are members of "a subclass consisting of an industry, occupation or other group..." 65 P.S. S402. The Commission held that for the exclusion to apply, the family members must be members of a sub- class containing more than one member and the family members must be affected exactly as the other members of the subclass. The Commission held that if these two requirements of the Ethics Law were met, the school directors could vote on the collective bargaining agreement. However, the Commission held that the Ethics Law precluded the participation of the directors in the negotiation process. Citing prior opinions under former Act 170 of 1978, the Commission recognized the underlying reasoning of those prior opinions with the purpose of insuring that public officials are impartial and that their interests are sufficiently separated from their responsibility to the public. Van Rensler, Opinion, 90 -017, at 4. The Commission cited the definition of "conflict of interest" in present Act 9 of 1989 as specifically prohibiting a public official or employee from using confidential information obtained through public office or employment for an immediate family member's private pecuniary benefit. A school board director participating on the negotiating team would be privy to confidential information relating to the family members' bargaining units. The risk of disclosure of that information was held to preclude the school board directors from participating in negotiations where family members are part of the bargaining unit. In so holding, the negotiation process would be free of any influence of such a school board director and the potential for the use of confidential information would be "minimized if not eliminated." Id. at 4 -5. Thus, a fundamental basis for the Van Rensler Opinion was precluding the use of confidential information obtained through the public office as school board director to defeat the bargaining process. A careful review of Section 3(a) of the Ethics Law and the Van Rensler opinion provides the parameters and principles for addressing the issues in this case. Since the term " immediate family " - is defined to include a parent, spouse, child, brother or sister and since the board director and his spouse are in the familial relationship delineated above, Section 3(a) of the Ethics Law would otherwise prohibit the school board director from voting on the proposed budget. However, you state that the proposed budget is posted and becomes a matter of public record. Once the proposed budget is a matter of public record, it is no longer confidential information. The school board director may gain access to the Mr. Christian T. Mattie, III Page 5 proposed budget and may vote on the proposed budget without transgressing the Ethics Law assuming as a first condition that the proposed budget first becomes a matter of public record. Furthermore, it is noted that the school board director's 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 the school board director's spouse would be a teacher of the school district who would be in a class /sub - class, Section 3(a) of the Ethics Law would not restrict such activity provided the school board director's spouse is in a class /sub- class consisting of more than one person and provided the school board director's spouse is affected to the exact same degree as all other members of the class /sub - class. Davis, Opinion 89 -012. Although under the circumstances of this case, the school board director, whose spouse is affected to the same degree as all other members of the class /subclass, may vote on the proposed budget after it has become a matter of public record, the school board director would not necessarily be permitted under the Ethics Law to receive financial information related to the proposed budget. In considering any particular items of information, you should be guided by Van Rensler, supra, and the principles cited therein. General budgetary information which would not impact upon the negotiation process with the bargaining unit could be provided to the school board director without transgressing the Ethics Law. However, information which would impact upon the negotiation process with the bargaining unit, including but not limited to line -by -line information regarding salaries or information from which one could deduce specific salary information, would be prohibited under the principles of VanRensler and could not be provided to the school board director. You also ask whether, once a tentative contract is reached with the bargaining unit, the school board director may receive information regarding the background of the negotiations and an analysis of the negotiations, either before or after the bargaining unit approves of the tentative contract. The nature of this information would appear to include possible confidential information including but not limited to the strategy of the negotiating team. Such information could not be provided to the school board director without potentially impacting upon the negotiating process, either in the present -year should the tentative contract not be approved or in future years. Therefore, under the reasoning of Van Rensler, such information could not at any time be received by the school board member whose spouse is a teacher and member of the bargaining unit. Mr. Christian T. Mattie, III Page 6 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. Specifically not addressed herein is the applicability of the Public Employee Relations Act over which the State Ethics Commission has no jurisdiction but which provides: (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. 51101.1801. Conclusion: As an elected public official for the Port Allegheny School District, the school board director is a public official subject to the provisions of the Ethics Law. A school board director whose spouse is a teacher and member of the bargaining unit may nevertheless vote on the proposed budget assuming the conditions that the proposed budget becomes a matter of public record prior to the school board director gaining access to it or voting upon it, and that the spouse is in a class /subclass consisting of more than one person and the spouse is affected to the exact same degree as all other members of the class /subclass. The school board director may receive general financial information for a proposed budget which information does not impact upon the negotiation process with the bargaining unit. The school board director may not receive any financial information related to the budget which would impact upon the negotiation process with the bargaining unit, including but not limited to line -by -line items such as salaries or specific information from which one could deduce line -by -line items. The Mr. Christian T. Mattie, III Page 7 school board director may not receive information regarding the background of negotiations or analysis of the negotiations at any time. 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. 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 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. Lgcerely, C1 y q, Vincent . Dopko, Chief Counsel