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HomeMy WebLinkAbout93-520 SekulaRaymond F. Sekula, Esquire 1706 Fifth Avenue Arnold, PA 15068 Dear Mr. Sekula: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 1, 1993 93 -520 Re: Conflict, Public Official /Employee, School Director, Use of Authority of Office or Confidential Information, Vote, Immediate Family, Daughter -in -Law, Collective Bargaining Agreement. This responds to your letters of January 6, 1993, January 15, 1993, and January 20, 1993, 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 daughter -in -law is a teacher and member of the bargaining unit in the district, with regard to collective bargaining, arbitration and the budget. Facts: As Labor Counsel for the New Kensington- Arnold School District, a third class school district under the Public School Code, located in Westmoreland County, Pennsylvania, you request an advisory from the State Ethics Commission on behalf of Sarah G. Yeamans as to what, if any, restrictions the Ethics Law presents upon Ms. Yeamans as a School Director whose daughter -in -law is a teacher and a member of the District's Professional Employee Bargaining Unit. You request advice with regard to: 1. Ms. Yeamans participating on the District's negotiating team; 2. Ms. Yeamans receiving financial information for a proposed budget and eventually voting on that proposed budget; 3. Ms. Yeamans participating in the fact finding process as the same may occur pursuant to Act 88 -1992; and /or 4. Ms. Yeamans participating in required arbitration as provided in Act 88 -1992. Raymond F. Sekula, Esquire March 1, 1993 Page 2 Based upon the above, you request an advisory from this Commission. Discussion: As a School Director for the New Kensington- Arnold School District, Ms. Sarah Yeamans is a public official as that term is defined under the Ethics Law, and hence she 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. In addition, Sections 3(b) and 3(c) of the Ethics Law provide Raymond F. Sekula, Esquire March 1, 1993 Page 3 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 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. Raymond F. Sekula, Esquire March 1, 1993 Page 4 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. The State Ethics Commission has had occasion to consider the application of Section 3(a) to school directors in the context of collective bargaining, where members of their immediate families were school district employees and members of the bargaining unit. See, Van Rensler, Opinion 90 -017. Mattie, Advice 91 -508, applied the principles of Van Rensler, supra, to an inquiry involving a school director's receipt of budgetary information which could impact upon the collective bargaining agreement, where his spouse was a teacher and a member of the bargaining unit. However, in this case, the Van Rensler Opinion and Mattie Advice, supra, would not be applicable under the facts which you have submitted. Since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and since Ms. Yeamans and her daughter -in -law are not in a familial relationship delineated above, Section 3(a) of the Ethics Law would not place any restrictions upon Ms. Yeamans' prospective official participation in matters pertaining to collective bargaining, arbitration, or the budget. However, this Advice is conditioned upon the assumption that neither Ms. Yeamans, her son, nor any other immediate family member, as defined in the Ethics Law, would receive a private pecuniary benefit from her proposed conduct. See, Baker, Opinion 89- 016; Boyer, Advice 91 -511; Luzi, Advice 92- 625. 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 New Kensington- Arnold School District, Ms. Sarah Yeamans is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not present any restrictions upon Ms. Yeamans' future official conduct in matters involving collective bargaining, arbitration, or the budget, where her daughter -in -law is a member of the collective bargaining unit. This Advice is conditioned upon the assumption that neither Ms. Yeamans, her son, nor any other immediate family member, as defined in the Ethics Law, would receive a private pecuniary benefit from Ms. Yeamans' proposed Raymond F. Sekula, Esquire March 1, 1993 Page 5 official conduct. 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 §2.12. incerely, ktIOP Vincent \J. Dopko Chief Counsel