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HomeMy WebLinkAbout93-511 ShortPatricia Short 657 Wall Avenue Pitcairn, PA 15140 Dear Ms. Short: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 4 ADVICE OF COUNSEL February 18, 1993 93 -511 1 Re: Conflict, Public Official /Employee, School Director, Immediate Family, Spouse, Administrator, Collective Bargaining Agreement, Negotiations, Vote. 4 This responds to your letter of December 21, 1992, 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 whose spouse is an administrator for the school district with regard to a collective bargaining agreement with the teachers' union. Facts: As an elected Member of the. Gateway Board of School Directors in Monroeville, Pennsylvania since December, 1991, you seek an advisory from the State Ethics Commission. In early January, 1993, the Gateway School Board and the teachers' union will begin negotiations for a new contract to be effective at the beginning of the 1993 -94 school year. You state that you have been told that you may not participate in the discussions relating to the negotiations because your husband is an administrator with the District. You indicate that you are aware that you can vote on the contract when it is completed. You offer the following facts for clarification. Your husband has been an employee of the Gateway School District for 27 years and has been an elementary principal for the past 21 years. As an administrator, your husband is covered under Act 93 (Meet and Discuss) and is not a member of the bargaining unit. On February 12, 1993, in a telephone conversation with Assistant Counsel for this Commission, you provided the following additional facts. In prior years, the salaries for principals and other administrators for the Gateway School District have been tied Patricia Short February 18, 1993 Page 2 in to the teachers' contract, such teat the administrators' contract has been based upon a percentage of what the teachers got. However, the contract for the administrators is normally not adjusted until one year after the : contract for :the teachers has been settled. Additionally, you have stated that there are six elementary principals, one of which is your husband; one assistant elementary principal; one junior high principal; one junior high assistant principal; one high school principal; three assistant high school principals; and approximately six to ten other administrative employees covered by the administrators' contract. Although the elementary principals do not receive equal salaries, you state that if one elementary principal would get, for example, a five percent raise under the administrators' contract, so would all of the others. 1 I Based upon all of the above, you request an advisory. You state that you will not take part in contract discussions until you receive an advisory from this Commission. Discussion: As a School Director for the Gateway School District, you are a public official as that term is defined under the Ethics Law, and hence you are 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. 4 "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 Patricia Short February 18, 1993 Page 3 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 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 Patricia Short February 18, 1993 Page 4 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. A review of a pertinent Commission precedent is helpful in addressing your inquiry. In Van Rensler, Opinion 90 -017, the State Ethics Commission considered 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 such a school board director from voting on the finalized agreement if the immediate family member would be a member of a qualifying subclass containing more than one member with the family member affected by the contract exactly as the other members of the subclass. However, the Commission held that the Ethics Law precluded the participation of the directors in the negotiation process. 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. The negotiation process would thereby 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 this case, you have stated that your husband is an administrator and is not a member of the bargaining unit. Furthermore, the contract which will determine your husband's compensation, benefits, and the like is the administrators' contract, which will not be adjusted until approximately one year after the teachers' contract is settled. Under these circumstances, the Commission's concern with breaches of confidentiality would not exist because by the time the administrators' contract is adjusted, confidentiality as to the Patricia Short February 18, 1993 Page 5 teachers' contract will no longer be a concern. Based upon all of the above, Section 3(a) of ,the Ethics Law would not restrict you from participating fully in matters involving the teachers' contract, including discussions relating to negotiations and voting on the teachers' contract. 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 a School Director for the Gateway School District, you are a public official subject to the provisions of the Ethics Law. Based upon the facts which you have submitted, Section 3(a) of the Ethics Law would not restrict you with regard to participating in discussions relating to negotiations for the teachers' contract or with regard to voting on that contract. 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 §2.12. cerely, Vincen J. Dopko Chief Counsel