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HomeMy WebLinkAbout84-002 KrierII. Factual Basis for Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION February 24, 1984 Alan R. Krier, Esquire Jubelirer, Carothers, Krier, Halpern & Smith 309 E. Plank Road, P.O. Box 2024 Altoona, Pennsylvania 16603 84 -002 RE: School Director, Participation, Collective Bargaining Decision, Spouse Dear Mr. Krier: I. Issue: You present the question of whether a School Director whose spouse is employed by the School District may vote on the collective bargaining agreement between the School District and the Union representing persons within the District, including the Director's spouse. You indicate that you are Solicitor for the Bellwood -Antis School District, hereinafter the School District, which is located in Blair County, Pennsylvania. In the recent election, one of the successful candidates to the position of Director on the School District's Board was the wife of one of the teachers within the School District. The spouse of this School Board Director is not only a teacher but the former president of the Bellwood -Antis Education Association. The School District, of course, has a collective bargaining agreement with the Bellwood -Antis Education Association, hereinafter the Association or the Union. You indicate that we should accept, as a matter of fact, that the recently elected School Board Director who lives in the same household as the spouse is dependent upon her husband (the teacher within the District) for support and would be economically effected by the collective bargaining agreement. Likewise, this School Board Director and her husband might be effected, as would other teachers within the District, by other matters within the School District budget. Further, you make reference to what you consider to be "obvious conflicts if this Board member participates in decisions regarding teacher negotiations, teacher grievances, and similar matters involving the Association." Because of these observations and questions you seek our advice as to the extent to which the conduct of this School Board Director regarding matters directly or indirectly effecting the Association which contains some 90 - 100 persons may come before the School Board for resolution and the extent to which the actions of this School Board Director may be restricted by the provisions of the State Ethics Act. Alan R. Krier, Esquire February 24, 1984 Page 2 III. Applicable Law: The law to be applied to this question is a follows: IV, Di scussion: Section 1. Purpose. The Legislature hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the people of the State in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. Because public confidence in government can best be sustained by assuring the people of the impartiality and honesty of public officials, this act shall be liberally construed to promote complete disclosure. 65 P.S. 401. Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 402. Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Obviously, as an elected official, the recently elected member of the School Board is a "public official" as that term is defined in the State Ethics Act. As such, her conduct as a public official must conform to the requirements of the State Ethics Act. However, in reviewing your request and rendering advice, we must initially note that the jurisdiction of this Commission is strictly limited to the provisions of the Ethics Act and any interpretation, opinion, or ruling rendered is provided only pursuant to the terms of the State Ethics Act and interprets only that Act. Any opinion, ruling, etc., should not be viewed as providing an interpretation of or "clearance" to act under any statute, rule, regulation, or other requirement than those expressed within the Ethics Act itself. Alan R. Krier, Esquire February 24, 1984 Page 3 Under the provisions of the Ethics Act, a public official may not use his or her public office to secure financial gain other than the compensation allowed by law, for the official or a member of his or her immediate family. In the facts as you present them, the spouse- teacher of this School Board Director is to be considered within the scope of the term "immediate family" of the School Board Director. However, the question then becomes whether in discussions or voting on the adoption of the collective bargaining agreement or in participating in decisions regarding teacher negotiations, teacher grievances, or similar matters involving the Association, this School Board Director would be utilizing her public office to secure financial gain as prohibited by Section 3(a) of the Ethics Act. In reviewing this matter, we are cognizant of the fact that we had previously concluded that where the question presented to a public official directly and individually impacts upon his or her spouse, we have ruled abstention is required. See Leete, 82 -005. However, in the present case, you have presented no facts which would indicate that the individual spouse of this public official is directly and individually impacted or affected by either the proposed participation of the School Board Director in the collective bargaining agreement adoption process or in any specific teacher grievance matter. Thus, we perceive your question to be substantively different from that which we addressed in Leete. The question which you present is whether, even if the spouse will no more or no less than any other teacher within the bargaining unit, the School Board Director may, consistent with the provisions of the Ethics Act, participate in and perform her responsibilities as a School Director with respect to discussions on and the adoption of the collective bargaining agreement, teacher negotiations in general, and teacher grievances. Other rulings of this Commission indicate that a public official is required to abstain from participation in matters presented to the governmental body where he or she serves only where those matters specifically relate to his or her employer, or where the matters involve non - routine items. See Reisinger, 146 -C and compare Stewart, 79 -070. We are also reminded that courts have often required an abstention because of "pecuniary" or financial interest only where those affected interests can be said to be direct, immediate, and particular, as distinct from the interests that might be shared by a larger group or the public in general. See Reckner v. School District of German Township, 341 Pa. 375, 19 A.2d 402 (1941) citing Commonwealth v. Raudenbush, 249 Pa. 86, 94 A.55 (1913). From this precedent it is apparent that the abstention requirement should, in most instances, be limited to requiring abstention where the public official has a direct, immediate, and particular personal interest in the matter which would be subject to his or her vote. Alan R. Krier, Esquire February 24, 1984 Page 4 In the case which you present, the fact that the spouse of the School Board Director is also a teacher within the bargaining unit of the Union and would, therefore, be effected by the collective bargaining agreement between the School District and the Union would not necessarily, in and of itself, require the abstention of this School Board Director. We are cognizant that in this case the spouse- teacher is merely one among some 90 = 100 other persons potentially affected by the collective bargaining process and agreement. Abstention, in our estimation, would be mandated under Section 3(a) of the Ethics Act only where the spouse of the School Board Director would be individually and specifically, benefitted to an extent different or unique from those benefits that would be provided to other similarly situated members of the bargaining unit. Otherwise, with respect to the teacher negotiations, the School Director, consistent with the Ethics Act, can vote on the ratification and /or adoption of the collective bargaining agreement. Of course, in any such action, the School Director would violate the State Ethics Act if she were to provide confidential information acquired as a School Board Director to her spouse to be used to that spouse's benefit as set forth in Section 3(a) of the Ethics Act. No such information which is acquired by the School Board Director or her spouse should be transmitted or utilized in the context of the collective bargaining agreement negotiations or otherwise. However, even if no violation of Section 3(a) of the Ethics Act would be apparent if the School Director voted on the final adoption of the collective bargaining agreement, we must review this question in light of Section 1 of the Ethics Act. Under this general "Purpose" provision of the Ethics Act public officials are also required to assure the public that their financial interests present neither a conflict nor the appearance of a conflict with the public trust. Balanced against this goal is the duty of the School Director to perform the obligations of her office, including dealing with the Union. We note that an analagous provision in the Public Employee Relations Act, commonly referred to as Act 195, states with respect to "Conflict of Interest" that: (a) No person who is a member of the same local, state, national or international organization as the employe organization with which the public employer is bargaining or who has an interest in the outcome of such bargaining which interest is in conflict with the interests of the public employer, shall participate on behalf of the public employer in the collective bargaining process with the provison that such person may, where entitled vote on the ratification of the agreement. Alan R. Krier, Esquire February 24, 1984 Page 5 (b) Any person who violates subsection (a) of this section shall be immediately removed by the public employer from his role, if any, in the collective bargaining negotiations or in any matter in connection with such negotiations. 43 P.S. 1101.1801. Under the Ethics Act, we believe we can and should adopt a similar requirement with respect to striking on balance between the goals and purpose of the Ethics Act in insuring the impartiality of public officials and permitting those officials to perform the duties of their office. We believe that pursuant to Section 1 of the Ethics Act, in order to assure the public that the public official's financial interests are sufficiently separated from the official's responsibility to the public, this School Director should not participate in the negotiation process or discussions or meetings regarding the collective bargaining agreement with this Union. In this way, her influence in the School District's decisions as to the direction and outcome of this process is eliminated. This will also insure that no confidential information will be acquired during this process and, therefore, the problem of use of such information is minimized if not eliminated. However, where this School Director properly refrains from negotiations, meetings, and discussions as discussed above and where the final agreement presented for adoption or ratification affects the spouse in the same manner and degree as other members of the bargaining unit, she may vote on the final ratification or adoption of the agreement. V. Conclusion: Under the circumstances as set forth above, Section 3(a) of the Ethics Act would not prohibit this School Board Director from participating in the final vote upon the collective bargaining agreement. Cautions with respect to confidential information which are expressed in this opinion must be observed. However, in order to effect the purpose of the Ethics Act as expressed in Section 1 of the Ethics Act and to minimize or eliminate the problems of use of confidential information under Section 3(a), this School Director should refrain from participating in negotiations, discussions, or meetings regarding this collective bargaining agreement, but may vote on final adoption of ratification of same where: (1) she did properly refrain from participation in meetings, negotiations, and discussion as set forth above and (2) the final agreement to be voted upon affects her spouse no more than any other member of the bargaining unit. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the advice given. Alan R. Krier, Esquire February 24, 1984 Page 6 This letter is a public record and will be made available as such. Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconside- ration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. SSC /rdp By the Commission,