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HomeMy WebLinkAbout94-510 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 February 10, 1994 Re: Conflict, Public Official /Employee, Authority of Office or Confidential Family, Vote, Non - Binding Arbitration. Dear Mr. Glotfelty: This responds to your letter of January 5, 1994 requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee presents any-prohibition or restrictions upon a school with regard to voting on non - binding arbitration where family is a teacher within the district. 94 -510 School Board, Use of Information, Immediate in which you Ethics Law board member an immediate Facts: You are a member of the Big Spring School District. Your wife is a teacher in the district. Ashby Collins and Robert Barrick are also Members of the Big Spring School District. Both are members of the Pennsylvania State Education Association (PSEA), although not in the Big Spring School District; one has a sister who teaches in the Big Spring School District. Both have consented to your seeking advice as to their conduct. You request an advisory from the State Ethics Commission as to whether you, Mr. Collins and Mr. Barrick may vote on non - binding arbitration. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. 55407(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. 55407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Glotfelty, Kenneth, 94 -510 February 10, 1994 Page 2 As School Board Members for the Big Spring School District, you are public officials 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 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 Glotfelty, Kenneth, 94 -510 February 10, 1994 Page 3 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 Glotfelty, Kenneth, 94 -510 February 10, 1994 Page 4 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. As you are aware from Glotfelty, Advice 93 -609, the seminal Commission decision which applies Section 3(a) under similar facts is Van Rensler, Opinion 90 -017. The issue there was whether the Ethics Law prohibited school board directors from participating on negotiating teams and voting on collective bargaining agreements when members of their immediate families were school district employees represented by the bargaining units. The Ethics Law does not restrict directors from voting on final agreements, but directors cannot take part in negotiations leading to final agreements. It was held that directors could vote on final agreements because of the exclusion in the definition of "conflict or conflict of interest" which applies if the immediate family members are members of subclasses consisting of industries, occupations or other groups containing more than one member and the family members would be affected exactly as the other members of the subclasses. The Commission held that if these two prerequisites for applying the exclusion were met, school directors could vote on final collective bargaining agreements. In this case, you indicate that your proposed vote is not on a final agreement, but on non - binding arbitration. Following the Commission decision in Van Rensler, voting on non - binding arbitration would be similar to voting on a final collective bargaining agreement. In both cases, the exclusion in the definition of "conflict or conflict of interest" would apply provided the immediate family members are members of a subclass consisting of an occupation or group containing more than one member and the immediate family members would be affected exactly the same as other members of the subclass. Under these circumstances, the proposed vote by the board members on non- binding arbitration would be permitted 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 Public School Code. Conclusion: As Members for the Big Spring School District, you are public officials subject to the provisions of the Ethics Law. Based upon the facts of this case, Section 3(a) of the Ethics Law would not prohibit or restrict you or the other Board Members from voting on non - binding arbitration provided the exclusion in the definition of conflict of interest applies. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Glotfelty, Kenneth, 94 -510 February 10, 1994 Page 5 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. 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). Sicerely, Vincent Dopko Chief Counsel