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HomeMy WebLinkAbout90-017 Van RenslerMr. Barry W. Van Rensler Attorney & Counsellor at law 10 South Plum Street P.O. Box 1760 Media, PA 19063 -8760 I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair G. Sieber Pancoast Dennis C. Harrington James M. Howley Daneen E. Reese DATE DECIDED: August 16, 1990 DATE MAILED: Aug . t 74, 199n 90 -017 Re: Conflict, School Director, Vote, Collective Bargaining Agreement, Negotiating Team, Contract, Bargaining Unit, Immediate Family. Dear Mr. Van Rensler: This Opinion is issued in response to your letters of request dated July 5, 1990 and July 24, 1990. Whether under the Public Official and Employee Ethics Law school directors may participate on a negotiating team and vote on a collective bargaining agreement when members of their immediate families are school district employees who are represented by the bargaining units. II. Factual Basis for Determination: As solicitor for the Upper Darby School District (District), you request an opinion concerning the propriety under the Public Official and Employee Ethics Law of school directors participating on a negotiating team or voting on a collective bargaining agreement when members of their immediate families are District employees and members of the bargaining units. After indicating that the family members are within the definition of "immediate family" as set forth in the Ethics Mr. Barry W. VanRensler Page 2 Law, you reference Section 11 -1111 of the School Code as to the definition contained therein as to the term relative. The District has four collective bargaining units: the union for the professionals has approximately 515 members; the union for the clerical, secretarial and building assistants has 130 members more or less; the maintenance workers and bus drivers comprise a bargaining unit of approximately 160 members and the administrative personnel, consisting of about 37 members, has no official union representation. III. Discussion: School directors for the Upper Darby School District are public officials as defined under the Public Official and Employee Ethics Law, Act 9 of 1989. Therefore, they are subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law: 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 or 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 Mr. Barry W. VanRensler Page 3 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 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value or no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgment of the public official/ employee would be influenced thereby. Initially, based upon the factual representations, we shall assume that the employees who are related to the school directors are within their "immediate family." The two concerns before us relate to the directors' proposed conduct as to their participation on the negotiation team and /or voting on the collective bargaining agreement. As to the first issue of whether the directors may vote on the final collective bargaining agreement, our inquiry must focus upon the above quoted definition of conflict which provides an exclusion with respect to the use of authority of office when it affects a subclass consisting of an industry, occupation or other group which includes the family members in question. The members of the school directors' immediate families are District employees who are members of four different bargaining units of the District. On the issue of voting on the ratification of a contract, we follow our reasoning in Davis, Opinion 89 -012, wherein we opined that a school director was not precluded from voting on a wage request for school police of which his father was a member. We determined then, and agree now, that in order for the exclusion to apply in these cases it is necessary for the family members to be part of a subclass of which there is more than one member. Additionally, these family members in the subclass cannot be affected in any way differently from others in that subclass. As long as the above two Ethics Law requirements are met, the school directors would not be precluded from voting on the collective bargaining agreement. While we conclude that the . school directors from voting on compelled to determine that the directors from participating in finalized agreement. We note in passing that in Opinion 84 -003, two cases which on a negotiating team under Act Ethics Law would not prohibit the the finalized agreement, we are Ethics Law would preclude the the negotiations leading to such Brier, Opinion 84 -002 and Blaney addressed the issue of participation 170 of 1978, we determined that the Mr. Barry W. VanRensler Page 4 Preamble of the Ethics Act, 65 P.S. §401 would prohibit such participation. In Krier, supra, we expressed the underlying rationale for such a prohibition: Under the Ethics Act, we believe we can and should adopt a similar requirement with respect to striking on [sic} 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. Although not controlling of our decision in the present case, we do agree with and will follow the underlying reasoning espoused therein as to addressing this issue under the current phraseology of Section 3(a). The definition of "conflict of interest" in Act 9 of 1989 specifically provides that a public official or employee may not use any confidential information which has been obtained by holding public office or employment for the private pecuniary benefit of a member of his immediate family. By being part of the negotiating team which is part of their ition-rtirc ctrottl reetars- would - be —necessa confidential information concerning the bargaining units of which their family members are parts. Although we do not suggest that the school directors would share such information with those family members in contravention of the Ethics Law, we cannot allow such action due to the great potential for accidental or inadvertent disclosure. Therefore, the District directors whose family members are part of a bargaining unit must refrain from participating in the negotiation process. As we noted in Blaney, Opinion 84 -003, "In this way, your influence in the School District's decisions and those of Mr. Barry W. VanRensler Page 5 the bargaining units as to the direction and outcome of the negotiation process can be eliminated and the possibility of the use or transmission of the confidential information may be minimized if not eliminated." We must conclude, therefore, that under the Ethics Law school directors who have members of their immediate families as part of the bargaining units are prohibited from participating in the negotiation process under Section 3(a) of the Ethics Law. 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 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 Public Employee Relations Act over which we have no jurisdiction but which does provide: (a) No person who is a member of he same local, state, national or international organization as the employee 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 provision that such person may, where entitled vote on the ratification of the agreement. (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. IV. Conclusion: School directors for the Upper Darby Area School District are -: . - -- "public officials" subject to the . provisions of the Ethics Although Section 3(a) of the Ethics Law would not restrict school directors from voting on the ratification of contracts when members of their immediate families are school district employees who are represented by various bargaining units, the school directors would be prohibited from participating in the negotiation process given the confidential nature of that process. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Mr. Barry W. VanRensler Pagan 6 Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. such. This letter is a public record and will be made available as Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By t e Commission, !Helena G. Hughes, Chair