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HomeMy WebLinkAbout96-519 SheaDonna S. Weldon, Esquire Keefer, Wood, Allen & Rahal 210 Walnut Street PO Box 11963 Harrisburg, PA 1 71 08 -1 963 Dear Ms. Weldon: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 29, 1996 Re: Conflict, Public Official, School Director, Guidance Counselor, Collective Bargaining This responds to your letter of February 2, 1 from the State Ethics Commission. 96 -519 Immediate Family, Father -in -Law, Agreement, Negotiations. 996, in which you requested advice sue You ask whether the Public Official and Employee Ethics Law presents any restrictions upon a School Director from participating in Collective Bargaining Agreement negotiations for the School District where his father -in -law is employed as a guidance counselor. Facts: You are the Solicitor for Lower Dauphin School District (District) and have been authorized by Timothy Shea (Shea) and David Duncan, School Board President, to request an advisory regarding Shea's participation in the collective bargaining process. Shea is a District School Director with a term which began at the reorganization of the School Board on December 4, 1995. The term of the current Collective Bargaining Agreement with professional employees ends on June 30, 1996 and negotiations for the new Collective Bargaining Agreement began in January, 1996. Shea's father -in -law, Cleon Cassel (Cassel), is one of nine Guidance Counselors at the Senior High School. Cassel is a member of the bargaining unit which began negotiations in January, 1996. Cassel is paid on the same salary schedule as teachers and is also assigned additional work days in excess of the 185 -day work year. Under the current Agreement, the extra work days, typically no more than ten per year to any one counselor, are compensated at the per diem rate of 11185th of the employee's salary for the contract year. Cassel also owns a horse stable where Shea is paid, either by the horse owners or by Cassel, to train the horses owned by these individuals. Shea operates as an independent contractor with the horse owners and Cassel to provide his services as Weldon /Shea 96 -519 February 29, 1996 Page 2 a trainer. In addition, Shea and his wife rent their home, which is located near the stables, from Cassel. You request advice on the following questions: 1. Is there any prohibition in the Ethics Law as a result of the employer /independent contractor or landlord /tenant relationships against Shea voting on the collective bargaining agreement? 2. Is there any prohibition or limitation as the result of the employer /independent contractor or landlord /tenant relationship to preclude She from taking part in the negotiation sessions. • "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 r 3. What public disclosures, if any, are necessary under the law or are recommended by the Ethics Commission? 4. Does the fact that Cassel is a member of a subclass of guidance counselors greater than one negate any conflict of interest under the Ethics Law? Discussion: As School Director for Lower Dauphin School District, Shea is a public official as that term is defined under the Ethics Law, and hence is subject to the provisions of that 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 as follows: Section 2. Definitions. Weldon /Shea, 96 -519 February 29, 1996 Page 3 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 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. The seminal Commission decision which applies Section 3(a) under similar facts is Van Rensler, Opinion 90 -017. The issue in Van Rensler was whether the Ethics Law prohibited school board directors from participating on a negotiating team and voting on a collective bargaining agreement when members of their immediate families were school district employees 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. In reaching this conclusion, 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 family member would be affected exactly as the other members of the subclass. The Commission held that if these 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 precluded the participation of the school directors in the negotiation process. Citing prior opinions under former Act 170 of 1978, the Commission recognized that the underlying reasoning of those prior opinions was to insure that public officials are impartial and that their private interests are sufficiently separated from their responsibility to the public. Van Rensler, at 4. The Commission cited the definition of "conflict of interest" in Act 9 of 1989 as specifically prohibiting a public official or employee from using confidential information relating to the family members' bargaining units. The risk of disclosure of that information was held to preclude the school board directors from participating in negotiations where family members are part of the bargaining unit. In so holding, the negotiation process would be free of any influence of such a school board director and the potential for the use of confidential information would be "minimized if not eliminated ". a at 4 -5. Thus, a fundamental basis for the Van Rensler Opinion was precluding the use of confidential information obtained through the public office as school board director to defeat the bargaining process. Since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and since father -in -law is not a familial relationship delineated above, Shea is not in the familial relationship as defined under the Ethics Law. However, Shea is a client of Cassel as to the horse training services. The Commission has held that a public official does have a conflict in taking official action as to business clients. See, Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010. Weldon /Shea, 96 -519 February 29, 1996 Page 4 Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities (j) 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. If a conflict exists, Section 3(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 applying Section 3(a) of the Ethics Law and the precedent of the Commission to the instant matter, Shea could not participate in the negotiation sessions, given the business client relationship with Cassel, but could vote on the ratification of the collective bargaining agreement provided that Cassel is not treated any differently than any other guidance counselor. Parenthetically, it is noted that the negotiations are with the professional employees which appears to include inter alia teachers and guidance counselors who will receive the same salary schedule as the teachers. As to Section 3(j), the necessary disclosure would have to be made as to Shea's recusal from the negotiation sessions. Lastly, 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 Law has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: As School Director for Lower Dauphin School District, Shea is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would restrict Shea from participating in the collective bargaining process Weldon /Shea 96 -519 February 29, 1996 Page 5 regarding his father -in -law, who is not a member of his immediate family as that term is defined under the Ethics Law but is a business client. Pursuant to Section 3(a) of the Ethics Law, Shea would not be prohibited from voting on a final collective bargaining agreement where Cassel, as an employee of the School District covered by the contract, is a member of a class /subclass consisting of more than one guidance counselor and is affected to the same degree as the other class /subclass members. To the extent applicable, the provisions of Section 3(j) of the Ethics Law must be satisfied. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this 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, providing 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. Vincent . Dopko Chief Counsel