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