HomeMy WebLinkAbout00-542 EttingerSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
March 16, 2000
Neil D. Ettinger, Esquire
Steckel and Stopp
Municipal Building
125 South Walnut Street, Suite 210
Slatington, PA 18080 -2305 00 -542
Re: Conflict; Public Official /Employee; Member; School Board; School District;
Grievance Proceeding; Collective Bargaining Unit; Immediate Family Member;
Spouse; Daughter.
Dear Mr. Ettinger:
This responds to your letter of February 8, 2000 by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. §1101 et seq., presents any prohibition or restrictions upon a school board
member as to: (1) participating in grievance proceedings filed by the school district's
collective bargaining unit of which his spouse and daughter are members; and (2)
participating in Act 93 "meet and discuss proceedings" to set the compensation for
school administrators when he is an assistant principal in an educational institute that
determines its own administrative salaries by averaging the salaries of all the
participating member school districts, including the school district in which the school
board member serves.
Facts: As Solicitor to the Northern Lehigh School District ( "School District "), you
request an advisory on behalf of Gary Fedorcha ( "Fedorcha "), President of the Northern
Lehigh School Board ( "School Board "), which consists of nine members.
Fedorcha is employed as the Assistant Principal at the Lehigh Career and
Technical Institute ( "LCTI "), formerly Lehigh County Vocational Technical School.
Fedorcha also serves as Supervisor of Adult Continuing Education. LCTI serves nine
"member" school districts, including Northern Lehigh School District. The nine
"member" school districts sponsor LCTI. LCTI is operated by and through a joint
operating committee consisting of several school board members from each of the
participating nine sponsored Lehigh County Schools. The LCTI compensation
arrangement for school administrators parallels, but is entirely independent of,
compensation plans under Act 93 for participating school districts. The LCTI, in
determining the compensation for its administrators, surveys and computes an average
of the administrative salaries of the participating nine member school district
administrations. These salaries could arguably be affected by a board member's
FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us
Ettinger, 00 -542
March 16, 2000
Page 2
participation in the Act 93 negotiations and determinations established for the School
District Administrators.
Fedorcha's spouse and daughter are professional employees in the School
District.
Given the above facts, you pose the following questions.
1. Is there a conflict of interest under the Ethics Act in allowing Fedorcha
to participate in hearing and rendering a decision on a grievance filed by the School
District Teacher's Collective Bargaining Unit when neither Fedorcha's spouse nor
daughter have filed the grievance or have become direct parties to the grievance, but
are both members of the same collective bargaining unit as the grievant?
2. If the answer to the first question is in the affirmative, is the conflict
dependent upon the merits and /or description of the grievance hearing or is there a
blanket preclusion and /or Ethics Act violation if Fedorcha participates in any grievance
procedure that pertains to the collective bargaining agreement of which his spouse and
daughter are members?
3. Are there any exceptions which would allow Fedorcha to participate in
the grievance hearing between the teachers' collective bargaining unit and the School
Board? If a certain factual determination would show that the outcome of the
grievance hearing has a "de minimis" impact upon other professional members of the
collective bargaining unit, what are the factors which would result in a de minimis
finding?
4. Under Act 93, 24 P.S. §11-1164, which determines the compensation
for school administrators to be established through "meet and discuss" committees of
the school board, would Fedorcha's employment as Assistant Principal at LCTI pose
a conflict if he would participate in the Act 93 "meet and discuss" process which
occurs at the School District?
5. Would Fedorcha be permitted to participate in the discussions or "meet
and discuss" proceedings to determine the compensation for school administrators at
the School District? Would his participation as a School Board President present a
conflict because he could potentially determine his own salary as administrator for
LCTI?
Discussion: It is initially noted that pursuant to Sections 1107(10) and
1107(1 1) of the Ethics Act, 65 Pa.C.S. §§1107(10), (1 1), 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 Pa.C.S. §§1107(10), (1 1).
An advisory only affords a defense to the extent the requestor has truthfully disclosed
all of the material facts.
As President of the Northern Lehigh School Board ( "School Board "), Gary
Fedorcha is a public official as that term is defined in the Ethics Act, and hence
Fedorcha is subject to the provisions of that Act.
Section 1103(a) of the Ethics Act provides:
Ettinger, 00 -542
March 16, 2000
Page 3
Section 1103. Restricted activities.
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. §1103(a).
The following terms are defined in the Ethics Act as follows:
Section 1102. 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. The term 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 1 103(b) and 1 103(c) of the Ethics Act 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 judgment 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 1 103(j) of the Ethics Act provides as follows:
Section 1 103. Restricted activities.
(j) Voting conflict. - -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
Ettinger, 00 -542
March 16, 2000
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.
65 Pa.C.S. §1103(j).
In each instance of a conflict, Section 1103(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 Act, then voting is permissible provided
the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S.
In applying the above provisions of the Ethics Act to the instant matter,
pursuant to Section 1103(a) of the Ethics Act, 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.
Since the term "immediate family" is defined to include a parent, spouse, child,
brother or sister, and since Fedorcha's wife and daughter fall within two of the familial
relationships delineated above, Section 1103(a) of the Ethics Act would prohibit
Fedorcha from participating in actions of the School Board that would result in a
financial benefit to his wife and daughter. Section 1103(a) of the Ethics Act would
also prohibit Fedorcha from participating in School Board actions that would result in
a financial benefit to himself. In each instance of a conflict, Fedorcha would be
required to abstain and observe the disclosure requirements of Section 1 103(j) of the
Ethics Act.
Having established the above principles, if a public official has a conflict under
the Ethics Act, there are two exclusions which may apply in certain instances: the
class /subclass and the de minimis exclusions. In order for the class /subclass exclusion
to apply, Fedorcha's wife and daughter would have to be in a class /subclass consisting
of more than one person and be affected to the same degree as the other members of
the class /subclass. In such a situation, Section 1 103(a) would not preclude Fedorcha
from participating in a matter even if it would financially impact his wife and daughter
provided such action would impact upon them to the same degree as all other
Ettinger, 00 -542
March 16, 2000
Page 5
members of the class /subclass. In order for the de minimis exclusion to apply, the
matter would have to have an economic consequence which would have an
insignificant effect upon his wife and daughter. See, Schweinsburq, Order No. 900.
In such an instance, Section 1103(a) would not preclude Fedorcha's participation in
such matter.
As for your first, second and third questions, it would not appear that Fedorcha
would have a conflict with regard to participating in a grievance proceeding when his
wife and daughter belong to the same bargaining unit as the grievant, provided that
Fedorcha's participation would not result in a financial gain to his wife and daughter.
If the grievance proceeding would financially impact Fedorcha's spouse and daughter
and all of the other members of the collective bargaining unit by, for example,
increasing their wages to the same degree, the class /subclass exception to the
definition of conflict of interest would apply, and Fedorcha would not be precluded
from participating in such matter. Fedorcha could also participate if the matter would
have a de minimis or insignificant economic impact upon his wife and daughter.
As for your fourth and fifth questions, you are advised as follows. If the
average administrative salaries of the participating nine member school district
administrations would increase, resulting in a salary increase for all LCTI administrators
who would receive a financial gain to the same degree, and Fedorcha would be
considered to be one of two or more administrators, the class /subclass exclusion to
the definition of conflict of interest would apply, and Fedorcha would not be precluded
from participating in the "meet and discuss" proceedings. On the other hand, if the
average salary of only the assistant principal would increase in a manner that would
result in particular financial increase as to Fedorcha as LCTI Assistant Principal alone,
the class /subclass exception to the definition of conflict of interest would not apply,
and Fedorcha, as a public official, would have to abstain and observe the disclosure
requirements of Section 1 103(j) of the Ethics Act.
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability of any other statute, code, ordinance, regulation or other code
of conduct other than the Ethics Act has not been considered in that they do not
involve an interpretation of the Ethics Act. Specifically not addressed herein is the
applicability of the respective municipal code.
Conclusion: As President of the Northern Lehigh School Board ( "School Board "),
Gary Fedorcha ( "Fedorcha ") is a public official subject to the provisions of the Public
Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. Fedorcha's
wife and daughter are members of his immediate family. Thus, Section 1103(a) of the
Ethics Act would prohibit Fedorcha from participating in actions of the School Board
that would result in a financial benefit to his wife and daughter. Section 1 103(a) of
the Ethics Act would also prohibit Fedorcha from participating in School Board actions
that would result in a financial benefit to himself. In each instance of a conflict,
Fedorcha would be required to abstain and observe the disclosure requirements of
Section 1 103(j) of the Ethics Act.
Fedorcha would not have a conflict with regard to participating in a grievance
proceeding when his wife and daughter belong to the same bargaining unit as the
grievant, provided that Fedorcha's participation would not result in a financial gain to
his wife and daughter. If the grievance proceeding would financially impact
Fedorcha's spouse and daughter and all of the other members of the bargaining unit
to the same degree, the class /subclass exception to the definition of conflict of interest
would apply, and Fedorcha would not be precluded from participating in such matter.
Ettinger, 00 -542
March 16, 2000
Page 6
Fedorcha could also participate if his action would have a de minimis economic impact
upon his wife and daughter.
If the average administrative salaries of the participating nine member school
district administrations would increase, resulting in a salary increase for all LCTI
administrators who would receive a financial gain to the same degree, and Fedorcha
would be considered to be one of two or more administrators, the class /subclass
exclusion to the definition of conflict of interest would apply, and Fedorcha would not
be precluded from participating in the "meet and discuss" proceedings. On the other
hand, if the average salary of only the assistant principal would increase in a manner
that would result in particular financial increase as to Fedorcha as LCTI Assistant
Principal alone, the class /subclass exception to the definition of conflict of interest
would not apply, and Fedorcha, as a public official, would have to abstain and observe
the disclosure requirements of Section 1103(j) of the Ethics Act.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Pursuant to Section 1107(11), an 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, provided 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 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,
Vincent `t. Dopko
Chief Counsel