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HomeMy WebLinkAbout94-501 PealeMichael O'Hara Peale, Timoney Knox Hasson STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG. PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 11, 1994 Jr., Esquire & Weand 400 Maryland Drive P.O. Box 7544 Fort Washington, PA 19034 -7544 Re: Conflict, Public Official /Employee Authority of Office or Confidential Participating in Meetings and Bargaining Agreement, Budget, Vote, 94-501 , School Director, Use of Information, Negotiating, Discussions, Collective Immediate Family, Mother. Dear Mr. Peale: This responds to your letter of December 3, 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 member of a school boaad, whose mother is an employee and member of the bargaining unit, from participating in budget and collective bargaining agreement negotiations and voting on the budget and agreement. Facts: As Solicitor for the Wissahickon School District, you have been instructed by Mrs. Donna Leadbeater, a Member of the Wissahickon School Board, to request an advisory on her behalf. You state that Mrs. Leadbeater was recently elected to the Board of Directors of the Wissahickon School District. Her mother is employed by the School District as a school nurse and is a member of the Wissahickon Education Association, the professional employees' bargaining unit. Mrs. Leadbeater has lived in a separate household from her mother for approximately twenty years and she and her mother are financially independent. The School District is about to engage in collective bargaining under the Public Employee's Relations Act with the bargaining unit of which Mrs. Leadbeater's mother is member. The School District is in the process of preparing its budget. You raise specific questions which are as follows: Michael O'Hara Peale, Jr., Esquire January 11, 1994 Page 2 1. May Mrs. Leadbeater participate, in any way, in the collective bargaining with the Wissahickon Education Association? 2. May Mrs. Leadbeater attend executive sessions where information and strategy concerning negotiations will be discussed? 3. May Mrs. Leadbeater participate in discussions concerning the adoption of a proposed budget? 4. May Mrs. Leadbeater, once the proposed budget has been adopted by the Board and becomes a matter of public record, participate in discussions concerning the budget? May she vote on the adoption of a final budget? 5. Is the answer to #4 different if the proposed budget contains no figures for anticipated professional employee salaries? 6. May Mrs. Leadbeater vote to approve or disapprove the Collective Bargaining Agreement with the Bargaining Unit? 7. Is there any action, or disclosure, that Mrs. Leadbeater could take which would permit her to have greater participation in either the budgetary or negotiating process? Based upon the above, you request an advisory from the State Ethics Commission. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. §S407(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 material 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. Michael O'Hara Peale, Jr., Esquire January 11, 1994 Page 3 As a Director for the Wissahickon School District, Mrs. Donna Leadbeater 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 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 Michael O'Hara Peale, Jr., Esquire January 11, 1994 Page 4 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. 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 Michael O'Hara Peale, Jr., Esquire January 11, 1994 Page 5 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. It is clear in this case that under the Ethics Law, Mrs. Leadbeater's mother is a member of her "immediate family ". 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 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 of 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. The exclusion that exists within the definition of conflict regarding use of authority of office applies when such use affects Michael O'Hara Peale, Jr., Esquire January 11, 1994 Page 6 to the same degree a class or sub -class consisting of an occupation or other group which would include a member of the public official's immediate family. This concept is set forth in Val Rensler and the advisories which follow it. The instant matter requires special consideration since Mrs. Leadbeater's mother is a school nurse for the School District, rather than a teacher as was the case in Van Rensler. In order for the exclusion within the definition of conflict to apply, it is necessary that her mother be part of a sub -class of school nurses, that is, there must be more than one school nurse. In addition, her mother could not be affected any differently from any other school nurse. Alternatively, her mother could be in another subclass, within a group of people with a certain number of years experience, for example. The key factors are that she is in a subclass consisting of more than just one person and that each member of that subclass is treated equally. This result reflects the legislative intent that a public official does not have a conflict as to himself, a member of his immediate family or business with which he is associated when he, a member of his immediate family or the business is not affected any differently from the class or subclass. See, Davis, Opinion No. 89 -012 (School director's father was school district police officer). By applying the above provisions of the Ethics Law and the Van Rensler and Davis decisions to this case, your inquiries will be responded to seriatim. First, Mrs. Leadbeater may not participate in the collective bargaining with the Wissahickon Education Association for the reasons set forth above in Van Rensler and Davis. Second, Mrs. Leadbeater may not attend executive sessions where information and strategy concerning negotiations will be discussed for the reasons set forth- in Van Rensler and Davis. Attending executive sessions, as with participating in the collective bargaining, presents the risk of disclosure of confidential information that the Ethics Law prohibits. Accordingly, such attendance at executive sessions would be prohibited. Third, Mrs. Leadbeater may not participate in discussion concerning the adoption of a proposed budget. Again, as set forth in the above paragraphs, this activity would be comparable to negotiating since she would be actively participating in a process whereby confidential information could be used to affect the outcome. As to the fourth posed question, reference must be made to Mattie, Advice No. 91 -508. In Mattie, the focus of concern was upon the receipt of certain specific information as to the proposed Michael O'Hara Peale, Jr., Esquire January 11, 1994 Page 7 budget at a point where it was confidential information and could impact upon the collective bargaining process. Therefore, its receipt by the school director who had the conflict would contravene the Ethics Law. The Advice specifically stated: Once the proposed budget is a matter of public record, it is no longer confidential information. The school board director may gain access to the proposed budget and may vote on the proposed budget without transgressing the Ethics Law assuming as a first condition that the proposed budget first becomes a matter of public record. Mattie, Advice No. 91 -508 at 4 -5. In this case, conditioned upon the assumption that the collective bargaining agreement would have been finally approved, it would presumably become a matter of public record. Additionally, there would be no further potential for official participation as to that agreement if it had been finalized. Thus, the concerns raised in Mattie would not apply to restrict Mrs. Leedbeater's access to information which is no longer confidential after a collective bargaining agreement has been finally approved. However, information which would remain confidential, such as information which would reveal the strategy used in negotiations (e'en if reflected in confidential budgetary information) , could not be accessed by Mrs. Leadbeater. After the budget has been adopted, whether she may receive specific budget information on the cost of various provisions, salaries or elements of the collective bargaining agreement in current and prior years hinges upon the confidentiality of such information. To the extent the specific budget information sought is a matter of public record, Mrs. Leadbeater, as well as any other member of the public, may have acxes to it. To the extent it remains confidential information and could impact upon pending or future collective bargaining agreements, she may not have access to it. See also, Wise, Advice No. 93 -545. Mrs. Leadbeater may, however, in accordance with Van Ressler and Davis, vote on the adoption of a final budget. Fifth, the answer to question 4 is not different if the budget contains no figures regarding salaries. The crucial factor is the ccfidential information and the guidelines set forth in the response to question 4 above must be followed. Sixth, Mrs. Leadbeater may vote to approve or disapprove the collective bargaining agreement. Again, based on the Commission's Opinion in Van Rensler and the Davis Advice, such vote is permitted provided the exclusion under the conflict of interest definition applies whereby the immediate family member is a member of a Michael O'Hara Peale, Jr., Esquire January 11, 1994 Page 8 subclass consisting of an occupation or other group and that individual would be affected exactly as other subclass members. Seventh, there is no other action or disclosure Mrs. Leadbeater could take to permit her to have more participation in the process. The above comprehensively covers the restrictions and prohibitions under which she must act and it is those guidelines which must be followed. There is no allowance for further flexibility or exception under the Ethics Law. 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 Pennsylvania Public School Code. Conclusion: As a Director for the Wissahickon School. District, Mrs. Donna Leadbeater is a public official subject to the provisions of the Ethics Law. The Ethics Law would not prohibit Mrs. Leadbeater from voting on a final budget or contract when a member of her immediate family is an employee of the Wissahickon School District as long as her mother is a member of a subclass consisting of more than just her mother and each member in that subclass is treated equally. However, she may not participate in negotiations or attend meetings where the contract or budget is being discussed. After the collective bargaining agreement has been approved, Mrs. Leadbeater may receive specific budgetary information, conditioned upon the assumption that such information is no longer confidential. The prohibitions and restrictions regarding her actions as set forth above must be followed. 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Michael O'Hara Peale, Jr., Esquire January 11, 1994 Page 9 Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa.Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). 7 ncerely, ,,,, Vincent J. Dopko Chief Counsel