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HomeMy WebLinkAbout02-503 BaslerLinda G. Basler 11 Wooded Drive Shippensburg, PA 17257 Dear Ms. Basler: ADVICE OF COUNSEL January 10, 2002 You pose the following specific inquiries: 02 -503 Re: Conflict; Public Official /Employee; School Director; Retired Teacher; Contract; Negotiation Team; Vote; Medical Coverage; PSEA; PSEA —R. This responds to your letter received on December 10, 2001, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., presents any prohibition or restrictions upon a school director who is a retired teacher and a member of PSEA —R with regard to participating on the board negotiation team or voting as to a contract between the school board and the teachers or between the school board and the support staff when the school director purchases her medical coverage from the school district and it is the same as the teachers' coverage. Facts: As a recently elected school director, you seek an advisory from the State Ethics Commission regarding the conflict of interest provisions of the Ethics Act. In addition to being a school director, you are a retired schoolteacher and a member of PSEA —R. You state that PSEA —R is an affiliate of PSEA and is not legally separated from PSEA. At an orientation meeting for new school board members, the question arose as to whether you could serve on the board negotiation team when the school board negotiates a contract with the teachers or support staff. You state that the teachers and the support staff are both affiliated with PSEA. You further state that you purchase your medical coverage from the school district and it is the same as the teachers' medical coverage. For this reason, it is your belief that you would be precluded from serving on the board negotiation team as to the contract with the teachers. Basler, 02 -503 January 10, 2002 Page 2 1 Whether you may vote on the contract between the board and the teachers if medical coverage is part of the negotiations; 2. Whether you may vote on the contract between the board and the teachers if medical coverage is not part of the negotiations; 3. Whether you may vote on the contract between the board and the teachers if there is no item of the contract that would personally benefit you; 4. Whether you may serve on the board negotiation team for the contract with the support staff given your membership in PSEA —R; and 5. Whether you may vote on the contract between the board and the support staff. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. § §1107(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 Pa.C.S. § §1107(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, you are a public official subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act provides: § 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: § 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. Basler, 02 -503 January 10, 2002 Page 3 "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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 65 Pa.C.S. § 1102. 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 809. Use of authority of office includes, for example, discussing, conferring with others, and lobbying for a particular result. Section 1103(j) of the Ethics Act provides as follows: §1103. 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 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. Basler, 02 -503 January 10, 2002 Page 4 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. The seminal Commission decision which applies Section 1103(a) under facts similar to those which you have submitted is Van Rensler, Opinion 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 prerequisites 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 ". Id, 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. Having set forth the above principles, the instant matter shall be addressed. Given that as a retired teacher, you purchase your medical coverage from the school district, and it is the same as the teachers' medical coverage, you would be precluded from serving on the board negotiation team when the school board would negotiate a contract with the teachers and medical coverage would be part of the negotiations /contract. Van Rensler, supra. Turning to your five specific inquiries, the first specific inquiry is whether you may vote on the contract between the board and the teachers if medical coverage is part of the negotiations. You are advised that if medical coverage is part of the negotiations /contract, based upon Van Rensler, supra, you could vote on the finalized contract conditioned upon the assumption that the class /subclass exclusion to the definition of "conflict" or "conflict of interest" would apply. In order for the class /subclass exclusion to apply, you would have to be in a class /subclass consisting of more than just one person and be affected to the same degree as the other members of the class /subclass. See, Davis, Opinion No. 89 -012. Assuming these two conditions would be met, that is, that you would be in a class /subclass consisting of more than just one person and would be affected to the same degree as the other members of the class /subclass, you would be permitted to vote on the finalized contract. Basler, 02 -503 January 10, 2002 Page 5 Your second specific inquiry is whether you may vote on the contract between the board and the teachers if medical coverage is not part of the negotiations. You are advised that if medical coverage would not be part of the negotiations, to the extent it would nevertheless be part of the contract, you could vote on the finalized contract conditioned upon the assumption that the class /subclass exclusion to the definition of conflict of interest would apply as discussed above. Your third specific inquiry is whether you may vote on the contract between the board and the teachers if there is no item of the contract that would personally benefit you. You are advised that assuming that the contract would not involve the prospect of any private pecuniary benefit prohibited by Section 1103(a), you would not be precluded by the Ethics Act from voting on the contract between the board and the teachers. Your fourth and fifth specific inquiries are whether you may serve on the board negotiation team for the contract with the support staff given your membership in PSEA —R and whether you may vote on the contract between the board and the support staff. You are advised that your membership in PSEA —R would be of no legal consequence under the Ethics Act. Mere membership in the association would not satisfy the Ethics Act's definition of "business with which he is associated." 65 Pa.C.S. § 1102. Therefore, despite your membership in PSEA —R, the Ethics Act itself would not preclude you from serving on the negotiation team or voting on the finalized contract between the board and the support staff assuming there would be no private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. However, your proposed conduct has only been addressed under the Ethics Act. A problem may exist as to such conduct under the Public Employee Relations Act over which the State Ethics Commission has no jurisdiction but which provides: § 1101.1801. Conflict of interest (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 interest of the public employer, shall participate on behalf of the public employer in the collective bargaining processes with the proviso that such person may, where entitled, vote on the ratification of an 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. Because this Advice may only address the propriety of the proposed conduct under the Ethics Act, it is recommended that you obtain legal advice as to the applicability of other provisions of law. Conclusion: As a school director, you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Given that as a retired teacher, you purchase your medical coverage from the school district, and it is the same as the teachers' medical coverage, you would be precluded from serving on the board negotiation team when the school board would negotiate a contract with the teachers and medical coverage would be part of the negotiations /contract. Where medical coverage would be part of the negotiations/ contract with the teachers, you could vote on the finalized contract conditioned upon the Basler, 02 -503 January 10, 2002 Page 6 assumption that the class /subclass exclusion to the definition of "conflict" or "conflict of interest" would apply, that is, that you would be in a class /subclass consisting of more than just one person and would be affected to the same degree as the other members of the class /subclass. If medical coverage would not be part of the negotiations, to the extent it would nevertheless be part of the contract with the teachers, you could vote on the finalized contract conditioned upon the assumption that the class /subclass exclusion to the definition of "conflict" or "conflict of interest" would apply. If the contract would not involve the prospect of any private pecuniary benefit prohibited by Section 1103(a), you would not be precluded by the Ethics Act from voting on the contract between the board and the teachers. Your membership in PSEA —R would be of no legal consequence under the Ethics Act. Despite your membership in PSEA —R, the Ethics Act would not preclude you from serving on the negotiation team or voting on the finalized contract between the board and the support staff assuming there would be no private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. It is recommended that you obtain legal advice as to the applicability of other provisions of law such as the Public Employee Relations 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. Sincerely, Vincent J. Dopko Chief Counsel