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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