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HomeMy WebLinkAbout98-511 BaronSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 4, 1998 Vince Baron OId Forge School District 98 -51 1 300 Marion Street OId Forge, PA 18518 -1627 Re: Conflict, Public Official/Employee, School Board, Board Member, Contract, Negotiations, Retired Teacher, Education Associations Member. Dear Mr. Baron: This responds to your letter of January 6, 1998 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employe Ethics Law presents any prohibition or restrictions upon a school board member who is a retired teacher from participating in negotiations with the education association. Facts: You are a member of the Board of School Directors of the OId Forge School District (District). You have been recently elected in the 1997 Municipal Elections to the Board of Directors of the District which will be negotiating a contract with the Old Forge Education Association (OFEA). As a member of the OFEA, the Pennsylvania State Education Association (PSEA) and the National Education Association (NEA), you retired from teaching at the District in 1993. As a retired member of the PSEA and NEA, you have a lifetime membership in both associations. Through the advice of Attorney John Holland of the Pennsylvania School Boards Association and your school solicitor, Attorney Joseph Mariotti, you request an advisory from the State Ethics Commission as a "definite defense" should an issue arise on what role you may take during negotiations. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) of the Ethics Law, 65 P.S. § §407(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. §§407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a School Director for the Old Forge School District, you would be considered a public official subject to the Ethics Law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. Baron Advice, 98 -51 1 February 4, 1998 Page 2 (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms related to Section 3(a) 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. The use of authority of office is more than the mere mechanics of voting and encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order No. 809. Use of authority of office includes, but is not limited to, discussing, conferring with others, lobbying for a particular result, and voting. 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, Baron Advice, 98 -511 February 4, 1998 Page 3 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 facts similar to those which you have submitted is Van Rensler, Opinion No. 90 -017. The issue in Van Rensler was whether the Ethics Law prohibited school directors from participating on a negotiating team and voting on a collective bargaining agreement where members of their immediate families were school district employees who were represented by the bargaining units. The Commission concluded that the Ethics Law would not restrict the school directors from voting on the finalized agreement, but that the school directors could not take part in the negotiations leading to the finalized agreement. The Commission held that the school 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 immediate family member is affected exactly as the other members of the subclass. The Commission held that as long as the two rerequisites 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 would preclude the participation of such school directors in the negotiation process. In so holding, the Commission noted that the negotiation process would be free of any influence of such a school director and that the potential for the use of confidential information would be "minimized if not eliminated ". ki, at 4 -5. Thus, a fundamental focus of the Van Rensler Opinion was precluding the use of confidential information obtained through the public office as school director to defeat the bargaining process. Mattie, Advice No. 91 -508, applied the Van Rensler principles to a situation where collective bargaining was taking place coincidentally with budget preparations. Per the submitted facts, some of the budgetary information which was to be provided to the school directors would show proposed changes for total salary and fringe benefits as well as categorized information regarding proposed increases or decreases in salaries. Furthermore, information was to be provided by the negotiating team to the administration which information would be used by the administration in preparing financial figures for the proposed budget. The Advice concluded that a school director with such a conflict could receive general financial information for the proposed budget which information did not impact upon the negotiation process with the bargaining unit. However, such a school Baron Advice, 98 -511 February 4, 1998 Page 4 director could not receive any financial information related to the budget which would impact upon the negotiation process with the bargaining unit, including but not limited to line -by -line items such as salaries, or specific information from which one could deduce such line -by -line items. The school director could not receive information regarding the background of negotiations or the analysis of negotiations at any time. However, the School Director could have access to information once it became public. In order for the class /subclass exclusion to apply, the immediate family member must be in a class /subclass consisting of more than just one person with the immediate family member being affected to the same degree as the other members of the class /subclass. See, Davis, Opinion No. 89 -012. Under Section 3(a) of the Ethics Law, you would not be prohibited from participating in negotiations or voting on a final collective bargaining agreement where you are a retired District teacher, and are lifetime members of the PSEA and NEA, subject to the following qualification. It is expressly assumed that neither you as a retired school teacher nor a member of your immediate family would financially benefit from the contract. Without the possibility of a private pecuniary benefit as noted above, you would have no conflict under Section 3(a) of the Ethics Law. Further, if you as retired teacher or member of your immediate family would benefit from the contract, then it that instance, you could not be part of the negotiation process but could vote upon the final ratification of the contract, provided the conditions outlined in the VanRensler Opinion above are satisfied. This Advice is limited to addressing the applicability of Section 3(a) of the Ethics Law. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 3(a) of the Ethics Law. Further, you are advised that Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public.official/public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public 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. 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. Lastly, you are advised that a serious question exists under the Public Employe Relations Act, 43 P.S. 1101.1801, as to whether you may participate in the negotiation process. See also, McAdoo Borough v. Pennsylvania Labor Relations Board, 506 Pa. 422, 485 A.2d 761 (1984). Since the above statute does not involve an interpretation of the Ethics Law, it is suggested that you seek the advice of your solicitor or private counsel. Conclusion: As a School Director for the Old Forge School District, you are a public official subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law, you would not be prohibited from participating in negotiations or voting on a final collective bargaining agreement where you are a retired District teacher, and are lifetime members of the PSEA and NEA, provided neither you as a retired school teacher nor a member of your immediate family would financially benefit from the contract. If you as retired teacher or member of your immediate family would benefit from the contract, then it that instance, you could not be part of the negotiation process but could vote upon the final ratification of the contract, provided the conditions outlined in the VanRensler Opinion Baran Advice, 98 -511 February 4, 1998 Page 5 above are satisfied. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Since a serious question exists under the Public Employe Relations Act as to whether you may participate in the negotiation process, it is suggested that you seek the advice of your solicitor or private counsel. 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 forma/ Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) 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). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. erely, incent J opko Chief Counsel