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HomeMy WebLinkAbout92-649STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 8, 1992 Jacqueline L. Russell, Esquire 92 -649 Russell and Russell Thompson Building Third Floor, Room 310 Pottsville, PA 17901 Re: Conflict, Public Official /Employee, School Director, Immediate Family Member, Spouse, Collective Bargaining Agreement, Fact Findings and Recommendations, Contract, Vote. Dear Ms. Russell: This responds to your letter of October 15, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether under the Public Official and Employee Ethics Law, a school director may have access to, and /or participate in the consideration of, a fact finder's initial findings and recommendations issued as a result of an impasse in negotiations for a collective bargaining agreement, where a member of the school director's immediate family (spouse) is a teacher in the school district. Facts: You seek an advisory from the State Ethics Commission on behalf of two Members of a School Board which you represent, which Members are hereinafter designated "Member A" and "Member B." You state that the Board is currently in the process of negotiating a teachers' contract. There are nine School Board Directors of which three have spouses who are school teachers in the School District. The Board President has appointed the other six Members to serve as the negotiating committee, the six Members being the majority of the Board and without a conflict. Member A is one of the three Board Directors whose spouses are school teachers. Member B is one of the six Board Directors who you state do not have a conflict of interest. An impasse was reached in the process of negotiating a contract. You state that according to Act 88 -1992, a fact finder must be appointed if a contract is not reached within a certain time. In this case, a fact finder was appointed and held a hearing Jacqueline L. Russell, Esquire December 8, 1992 Page 2 which was attended by the union representatives and also the Board Members on the negotiating committee. According to the law, the findings of fact and recommendations of the fact finder are then to be sent to both parties, who are then to decide whether they accept the recommendations of the fact finder. If they do not, the fact finder is to publicize the findings of fact and recommendations, and the parties are thereafter to determine again whether they will accept the recommendations. In the event the findings are not accepted and a contract is not reached, the parties will then proceed with arbitration. You have submitted a copy of Article XI -A of Act 88- 1992, which is incorporated herein by reference. You specifically point out Section 1122 -A Fact Finding Panels. The specific issues which you raise are as follows: 1. Whether upon submission by the fact finder of his initial findings of fact and recommendations, this should be ruled upon by the Members of the Board without the conflict or if the entire Board may sit and determine whether to accept the recommendations and findings. 2. After publication of the findings of fact and recommendations, whether the issue of accepting the recommendations should be presented to the members without the conflict or to the entire Board. You proffer your analysis that under the circumstances in both instances, the findings and recommendations should only be voted upon by the Members without the conflict since the voting is not on the final contract and there are items of potential confidentiality involved if the matter must proceed to arbitration. Nevertheless, you request an advisory from the State Ethics Commission. Discussion: As School Board Directors, Member A and Member B are public officials as that term is defined under the Ethics Law, and hence each 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. Jacqueline L. Russell, Esquire December 8, 1992 Page 3 "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. 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 been 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 Jacqueline L. Russell, Esquire December 8, 1992 Page 4 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 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 and 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 or supervisor. In applying the .above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. By definition, Member A's spouse (who is a school teacher in the District) is Member A's immediate family member. Turning to your two specific inquiries, in each instance Member A would have a conflict of interest. This conclusion is based upon the Commission's opinion in Van Rensler, Opinion 90-017. In Van Rensler, the State Ethics Commission considered 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 Jacqueline L. Russell, Esquire December 8, 1992 Page 5 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 exclusion in the definition of "conflict or conflict of interest" which applies if the immediate family member is a member of a subclass consisting of an industry, occupation or other group containing more than one member and the family members would be affected exactly as the other members of the subclass. The Commission held that if these two prerequisites for applying the exclusion were met, the school directors could vote on the final 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 immediate 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. In applying the above principles to the circumstances which you have submitted, your first inquiry poses a scenario where the Board would be considering the initial findings of fact and recommendations of the fact finder at a point in time where they would not yet have been publicized. The Board would be determining whether to accept such recommendations and findings. Thus, this scenario presents a dual conflict of interest problem: specifically, access to confidential information and participation Jacqueline L. Russell, Esquire December 8, 1992 Page 6 at a stage of the process before the final proposal. Member _A would therefore have a conflict of interest under the first inquiry. Under your second inquiry, although the findings of fact and recommendations would have been publicized, the negotiations would still be at a stage where a final proposal would not yet have been reached, and therefore the Board would be making its decision in a context which could include strategies for on -going negotiations and matters of potential confidentiality should the matter proceed to arbitration. Member A would therefore have a conflict of interest under the second inquiry. Your letter of inquiry does not appear to raise any questions under the Ethics Law regarding Member B. 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 School Code. Conclusion: As School Board Directors, the two School Board Directors on whose behalf you have inquired, referred to herein as "Member A" and "Member B," are public officials subject to the provisions of the Ethics Law. Pursuant to Section 3(a) of the Ethics Law, the School Board Director whose spouse is a teacher in the School District (Member A) would have a conflict of interest which would preclude participation in the consideration of the fact finder's initial findings of fact and recommendations pertaining to the negotiations for teachers' contract. Member A may not have access to related confidential information and therefore may not be present at non - public sessions of the Board during discussion, analysis, or other consideration by the Board pertaining to non - publicized findings of fact and recommendations or pertaining generally to negotiations for a contract with the teachers. 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 Jacqueline L. Russell, Esquire December 8, 1992 Page 7 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 §2.12. cerely, vv-tiv '0 Vincent J. Dopko Chief Counsel