HomeMy WebLinkAbout93-609 GlotfeltyKenneth Glotfelty
710 Meadowbrook Road
Carlisle, PA 17013
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
October 13, 1993
93 -609
Re: Conflict, Public Official /Employee, School Board Member,
Motion, Vote, Use of Authority of Office or Confidential
Information, Negotiating Committee, Immediate Family Member,
Spouse, Teacher.
Dear Mr. Glotfelty:
This responds to your fax transmission of September 30, 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
with regard to making and voting on a motion affecting the
composition and the meeting times of the negotiating committee
where the spouse of the director is a teacher within the school
district.
Facts: You are a Member of the Big Spring School Board. Your wife
is a teacher in the school district. You are not on the
Negotiating Committee and recognize that you are not permitted to
serve on that committee. However, you wish to make a motion as a
School Board Member regarding the Negotiating Committee. Your
proposed motion, set forth verbatim, is as follows:
I move that this board instructs our negotiation
committee to meet in the same room with the union
negotiators starting at 8:00 A.M. 10/30/93 and continue
negotiating until 8:00 A.M. 10/31/93. If no agreement
has been reached each negotiating team can vote to have
one member of the opposing negotiating team replaced for
the next meeting which will be held at 8:00 A.M. 11/6/93
until 8:00 A.M. 11/7/93. If at the end of the second
meeting no agreement has been reached another member of
each team can be replaced. The next meeting will be at
8:00 A.M. on 11/13/93 until 8:00 A.M. 11/14/93. If after
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October 13, 1993
Page 2
this meeting another meeting is needed it will be held at
8:00 A.m. 11/20/93 until 11/21/93 and again a member of
each team can be voted on to be replaced by the opposing
negotiating team. If after 4 meetings a settlement
cannot be reached the meetings will be scheduled for
every Saturday until settlement.
You have requested an advisory from the State Ethics Commission as
to whether you may make and vote on the above motion.
Discussion: It is initially noted that pursuant to Sections 7(10)
and 7(11) of the Ethics Law, 65 P.S. SS407(10), (11), advisories
are issued to the requestor based upon the facts which the
requestor has submitted. In issuing the advisory based upon the
facts which the requestor has submitted, the Commission does not
engage in an independent investigation of the facts, nor does it
speculate as to facts which have not been submitted. It is the
burden of the requestor to truthfully disclose all of the materials
facts relevant to the inquiry. 65 P.S. §S407(10), (11). An
advisory only affords a defense to the extent the requestor has
truthfully disclosed all of the material facts.
It is further noted that your request for advice may only be
addressed with regard to prospective conduct. A reading of
Sections 7(10) and 7(11) of the Ethics Law makes it clear that an
opinion or advice may be given only as to prospective (future)
conduct. If the activity in question has already occurred, the
Commission may not issue an opinion or advice but any person may
then submit a signed and sworn complaint which will be investigated
by the Commission if there are allegations of Ethics Law violations
by a person who is subject to the Ethics Law.
As a Member of the Big Spring 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
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October 13, 1993
Page 3
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 lawule, regulation,
f
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
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October 13, 1993
Page 4
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 the event that the required abstention results in the
inability of the governmental body to take action because a
majority is unattainable due to the abstention(s) from conflict
under the Ethics Law, then in that event participation is
permissible provided the disclosure requirements noted above are
followed. See, Mlakar, Advice 91- 523 -S.
The seminal Commission decision which applies Section 3(a)
under similar facts is 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
Glotfelty, 93 -609
October 13, 1993
Page 5
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, at 4. The Commission
cited the definition of "conflict interest" in Act 9 of 1989 as
specifically prohibiting a public official or employee from using
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.
In this case, you have indicated that you are not a member of
the negotiating team. Accordingly, you would not be prohibited
from making and voting on the motion you have presented. However,
you may not, consistent with the Ethics Law, at any time become a
replacement negotiation team member.
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 Public School Code.
Conclusion: As a Member of the Big Spring 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 prohibit or restrict you from making or voting
on a motion concerning the replacement of members of the
Negotiating Committee. However, you could not be a replacement
member yourself. Lastly, the propriety of the proposed conduct has
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October 13, 1993
Page 6
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 513.2(h).
cerely,
�Y1
Vincent J. Dopko
Chief Counsel