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HomeMy WebLinkAbout94-505 JonesRalph E. Jones 1211 Brentwood Greenville, PA 16125 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL. January 12, 1994 94-505 Re: Conflict, Public Official /Employee, School Director, Use of Authority of Office or Confidential Information, Negotiating, Participating in Discussions, Collective Bargaining Agreement, Vote, Immediate Family, Spouse. Dear Mr. Jones: This responds to your letter of December 6, 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 the school board, whose spouse is an employee of the school district and member of the bargaining unit, from participating in the negotiating process and voting on the final agreement. Facts: You are an elected School Board Member. Your wife is an employee of the School District and a member of the Bargaining Unit, PSEA, which is about to enter into contract negotiations with the Board. You realize the importance of confidentiality; however, as a Board Member, you question what you may participate in and what you must exclude yourself from in regard to the contract negotiations. You state that you do not wish to be a member of the negotiating team or committee insofar as that would be a conflict of interest. However, you feel that there appears to be a fine line between negotiations and information to which the entire Board has access. As an elected official, you feel a responsibility to your constituents that you be as informed as possible. In addition, you have been told that you are expected to vote on the final contract. You indicate that in order to make an intelligent decision, you should have certain information including: the cost of the package to the District; whether the District can afford the package; whether the package is the best package the negotiating team can Ralph E. Jones January 12, 1994 Page 2 achieve; You 1. and whether you should accept or reject the package. raise the following specific questions: Are you entitled to discuss the existing contract with fellow Board Members concerning items that you or they may like or dislike. Basically, general discussion which in turn should be used by the negotiating team to develop a plan. 2. Are you entitled to updates concerning negotiations in which the entire Board is present. 3. Should you be aware of the general direction the Board decides take. 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. 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 material facts relevant to the inquiry. 65 P.S. SS407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Member of the School Board, 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 Ralph E. Jones January 12, 1994 Page 3 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 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 Ralph E. Jones January 12, 1994 Page 4 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. In applying the above provisions of the Ethics Law to the circumstances 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 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 Ralph E. Jones January 12, 1994 Page 5 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 obtained through public office or employment for an immediate family member's private pecuniary benefit. A school board director participating on the negotiating team would be private 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. Therefore, in accordance with the above, you may vote to accept or reject the final contract provided your spouse is a member of a subclass whereby all members are affected equally. In responding to your specific inquiries, first, you may not discuss the existing contract with fellow Board Members. This activity is tantamount to engaging in strategy discussions concerning the negotiations. This activity is prohibited by the Ethics Law set forth in Van Rensler. Such discussions, as with participation in the collective bargaining, risk disclosure of confidential information that the Ethics Law prohibits. Ralph E. Jones January 12, 1994 Page 6 Second, the above principles would similarly apply to preclude you from receiving 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. gse, Russell Advice 92 -610. You would not transgress Section 3(a) of the Ethics Law, however, by receiving updates concerning negotiations that are discussed in public sessions. Id. Third, again, as with the above two inquiries, the Ethics Law prohibits you from being made aware of the direction the Board is going with the negotiations. While you are entitled to information which is not confidential and is available to the public, in accord with Van Rensler you may not have access to confidential information. 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 Member of the School Board, you are a public official subject to the provisions of the Ethics Law. Pursuant to Section 3(a) of the Ethics Law, you may not discuss the existing contract with regard to developing a negotiating plan. You may not have access to confidential information, but only that information which is available to the public and you may not receive information regarding the direction the board decides to go in its negotiating efforts if that information is confidential and not available to the public. You may, consistent with the Ethics Law, vote on a final agreement. 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 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. Ralph E. Jones January 12, 1994 Page 7 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). erely, Vincent Dop o Chief Counsel