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HomeMy WebLinkAbout93-537 GreenMichael J. Green 1016 Green Glen Drive DuBois, PA 15801 Dear Mr. Green: ri F STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 1, 1993 93 -537 Re: Conflict, Public Official /Employee, School Director, Immediate Family Member, Spouse, Collective Bargaining Agreement, Negotiating Team, Confidential Information, Contract, Vote. This responds to your letter of March 9, 1993, in which you requested advice from the State Ethics Commission. Issue: Whether under the Public Official and Employee Ethics Law a school director may participate as to a collective bargaining agreement and /or be informed as to negotiations where no member of his immediate family would be affected by the contract, or, alternatively, where a member of his immediate family would be a full -time teacher under the contract. Facts: As a School Director for the DuBois Area School District, you request an advisory as to the following two scenarios: 1. Your wife is a substitute teacher filling a position for a person on leave for one year. Your wife, as of now, will not have a teaching position next year. If the School Board enters into contract talks with the teachers' union for a contract whose term begins after June 30, 1993, you ask whether you may participate in the bargaining process and /or be informed as to details of talks. 2. Under a different scenario, assuming your wife is a full - time teacher with a contract, you ask what would be the guidelines for your involvement in contract talks as a School Director, and what you may be told about contract talks. Based upon the above, you request an advisory from the State Michael J. Green April 1, 1993 Page 2 Ethics Commission. Discussion: As a School Director for the DuBois Area 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. "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 Michael J. Green April 1, 1993 Page 3 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. Michael J. Green April 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. Under the first scenario which you have posed, Section 3(a) of the Ethics Law would not apply to restrict your involvement in the bargaining process or your access to information regarding negotiations because your wife would not be affected by the contract. Of course, this Advice is conditioned upon the assumption that there would be no other immediate family member affected by the contract either. The second scenario which you have presented has previously been considered by the State Ethics Commission in Van Rensler, Opinion 90 -017. 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 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 member 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 Michael J. Green April 1, 1993 Page 5 t 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. The above principles would similarly apply to preclude a school director from accessing such confidential information even if it would be at an executive session of the Board, or volunteered by some other school director, rather than through participation on the negotiating team itself. See, Russell, Advice 92 -610. However, the school director would not transgress Section 3(a) of the Ethics Law by having access to such information discussed in a public session. Id. The above principles would apply to you, and you would be required to observe same under the second scenario which you have posed. 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 DuBois Area School District, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not impose restrictions upon you with regard to participating in the collective bargaining process and /or receiving information as to such bargaining relative to teacher negotiations where neither your spouse nor any other member of your immediate family would be affected by said contract. However, were your spouse or other iirtediate family member to be a full -time teacher affected by the contract, pursuant to Section 3(a) of the Ethics Law, you would have a conflict of interest which would preclude your involvement in contract negotiations and /or access to confidential information pertaining to contract negotiations. Subject to the restrictions, conditions and qualifications noted above, you could, however, vote on the final contract proposal conditioned upon the assumption that your spouse or other immediate family member would be a member of a subclass affected by the contract and would be affected exactly Michael J. Green April 1, 1993 Page 6 as the other members of the subclass. 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. Sincerely, Vincent J. Dopko Chief Counsel 02. Af bt-