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HomeMy WebLinkAbout92-508Dante A. Cancelli, Esquire Suite 402 United Penn Bank Building 400 Spruce Street Scranton, PA 18503 Dear Mr. Cancelli: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 16, 1992 92 -508 Re: , Conflict, Public Official /Employee, School Director, Vote, Negotiation Team, Negotiation Strategy Session, Contract, Immediate Family, Child, Private Employment or Business, Board Member of Private High School. This responds to your letter of November 20, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a school director with regard to being a part of the negotiating team and /or participating in negotiation strategy sessions pertaining to a new contract for all of the teachers of the district where the school director's child is a teacher in the school district, or with regard to serving on the school board of a private high school. Facts: As Solicitor for the Valley View School District you seek the advice of the State Ethics Commission with regard to the following specific inquiries. You ask whether a Board Member who has a child who is a teacher in the School District, may be a part of the negotiating team and /or participate in negotiation strategy sessions pertaining to a new contract for all of the teachers of the district. You further ask whether a newly elected Board Member who is also on the school board of a private high school must resign his board position at the private high school. Discussion: As a School Director for the Valley View School District, each Board Member is a public official as that term is Mr. Dante A. Cancelli January 16, 1992 Page 2 defined under the Ethics Law, and hence each Board Member 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 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 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 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. Mr. Dante A. Cancelli January 16, 1992 Page 3 "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 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 anything of monetary value 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. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities. (j) 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 provided 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 Mr. Dante A. Cancelli January 16, 1992 Page 4 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. If a conflict exists, Section 3(j) requires the public official /employee to abstain as well as file a written memorandum to that effect with the person recording the minutes or supervisor. In applying the above provisions of the Ethics Law to your specific inquiries, each question which you have raised will be addressed seriatim. The Board Member whose child is a teacher in the School District would have a conflict of interest as to negotiating the new contract for all of the teachers of the District. This Board Member may not be a part of the negotiation team that will negotiate the new contract for the teachers, nor may this Board Member participate in negotiation strategy sessions. See, Van Rensler, Opinion 90 -017. As to each matter for which the conflict of interest arises, this Board Member would be required to abstain and to meet the disclosure requirements of Section 3(j) set forth above. This Board Member may, however, vote on the final collective bargaining agreement, pursuant to the exclusionary language in the definition of "conflict of interest" in Section 2 of the Ethics Law, based upon the express assumption that his child is part of a subclass' of teachers, with the subclass containing more than one member and with the Board Member's child being affected exactly as all of the other members of the subclass. Van Rensler, supra, at 3. As for the newly elected Board Member who is also on the school board of a private high school, the Ethics Law would not require this Board Member to resign his board position at the private high school, which he holds in a private capacity. Section 3(a) of the Ethics Law would only apply to restrict this School Director in his capacity as a public official. There do not appear to be any other statutory enactments declaring a school director ineligible for such public service based upon service as a board member for a private high school. Furthermore, Section 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities or employment; however, the public official /employee may not use the Mr. Dante A. Cancelli January 16, 1992 Page 5 authority of office for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. The Ethics Law would restrict participating in discussions, reviews, or recommendations on matters which relate to the business /private employer which come before the governmental body. Additionally, the Ethics Law would restrict the utilization of confidential information gained through public position. A public official /employee must exercise caution so that his private business activities do not conflict with his public duties. Crisci, Opinion 89 -013. Thus, a public official /employee could not perform private business using governmental facilities or personnel. In particular, the governmental telephones, postage, staff, equipment, research materials, personnel or any other property could not be used as a means, in whole or part, to carry out private business activities. In addition, the public official /employee could not during government working hours, solicit or promote such business activity. Pancoe, supra. In the event that the private high school would have a matter pending before the Valley View School District or if this particular School Director, as part of such official duties must participate, review or pass upon such a matter, a conflict would exist. Miller, Opinion 89 -024: In those instances, it would be necessary that this School Director be removed from that process. In such cases as noted above, Section 3(j) of the Ethics Law would require not only that the School Director abstain from participation but also publicly announce his abstention and the reasons for same, both orally and ,in a written memorandum to that effect filed with the person recording the minutes. 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 a School Director for the Valley View School District, each Board Member is a public official subject to the provisions of the Ethics Law. The Board Member whose child is a teacher in the School District would have a conflict of interest which would preclude him from participating in negotiation strategy sessions and /or on the negotiation team that will negotiate the new contract for all of the teachers of the District. However, this Board Member may vote on the final collective bargaining agreement based upon the assumption that his child is a member of a subclass of teachers containing more than one member, with the child being affected exactly as all of Mr. Dante A. Cancelli January 16, 1992 Page 6 the other members of the subclass. Section 3(a) of the Ethics Law would not prohibit the newly elected School Director from also serving on the school board of a private high school, because Section 3(a) would only apply to restrict the School Director in his capacity as a public official. The restrictions of Section 3(a) noted above must be observed. In the event that the private high school has matters pending before the School District, then this School Director would have a conflict of interest and could not participate in that matter. In each instance of a conflict of interest, the disclosure requirements of Section 3(j) of the Ethics Law as outlined above must be satisfied. 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 yo lave any reason to challenge same, you may request that he 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 S2.12. Sincerely, 5 /,K(4vd Vincent J. Dopko Chief Counsel a go X . 11