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HomeMy WebLinkAbout97-502 MarcoliniDr. Thomas A. Knight Superintendent Bethlehem- Center School District 194 Crawford Road Fredericktown, PA 15333 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 2, 1997 97 -502 Re: Conflict, Public Official /Employee, Member, School Board, Use of Authority of Office or Confidential Information, Contract Negotiations, Immediate Family, Mother, Nephew. Dear Dr. Knight: This responds to your letter of November 25, 1996 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon Members of a School Board, whose mother and nephew are employed by the School District as teachers, with regard to participating in the Teachers' Association contract negotiations. Facts: As Superintendent of the Bethlehem- Center School District (School District), you have been authorized by School Board Members Leann Marcolini (Marcolini) and James Rhodes (Rhodes) to request an advisory on their behalf. Marcolini's mother is employed as a second grade school teacher in the School District and Rhodes' nephew is employed as a middle school music teacher. Marcolini's mother does not reside with Marcolini, and Rhodes' nephew does not reside with Rhodes. You ask whether, pursuant to the Ethics Law, Marcolini and Rhodes may negotiate or serve on the negotiating team in the Bethlehem- Center Teachers' Association contract negotiations. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) of the Ethics Law, 65 P.S. § §407(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 Kniaht /Marcolini and Rhodes 97 -502 January 2, 1997 Page 2 material facts relevant to the inquiry. 65 P.S. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Members of the School Board of the Bethlehem- Center School District, Marcolini and Rhodes would be public officials as defined under the Ethics Law, and hence they would be 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. "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 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 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 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 been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(j) of the Ethics Law provides as follows: Knight /Marcolini and Rhodes, 97 -502 January 2, 1997 Page 3 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 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 Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. You are further advised that 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 No. 809. Use of authority of office includes, but is not limited to, discussing, conferring with others, lobbying for a particular result, and voting. In applying the above provisions of the Ethics Law to the circumstances you have submitted, pursuant to Section 3(a) of the Ethics Law, 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. Knight /Marcolini and Rhodes 97 -502 January 2, 1997 Page 4 It is clear in this case that Rhodes' nephew would not be considered a member of Rhodes' "immediate family." Thus, Section 3(a) of the Ethics Law would not restrict Rhodes as to the Teachers' Association contract negotiations, absent some other basis for a conflict of interest. As for Marcolini, her mother js, a member of her immediate family. 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, with the family member being 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 those 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 immediate 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 ". id, 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. Having set forth the above principles, Marcolini's mother, as a second grade teacher, would appear to fit within the class /subclass exception to the definition of conflict of interest. In order for the exclusion to apply, Marcolini's mother must be in a class /subclass consisting of more than just one person and must be affected to the same degree as the other members of the class /subclass. age, Davis, Opinion No. 89- 012 (School director's father was school district police officer). Conditioned upon the assumption that these prerequisite conditions are met in this case, Marcolini would be able to vote on the finalized agreement. However, Marcolini could not negotiate or serve on the negotiating team for the School District during the Teachers' Association contract negotiations. 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 )(nicht /Marnnlin' and Rhodes 97 -502 January 2, 1997 Page 5 of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Public School Code. Conclusion: As Members of the School Board of the Bethlehem- Center School District, Leann Marcolini and James Rhodes would be public officials subject to the provisions of the Ethics Law. Pursuant to Section 3(a) of the Ethics Law, Rhodes would not have a conflict as to the Teachers' Association contract negotiations merely because his nephew is a teacher, because a nephew is not a member of "immediate family" as that term is defined under the Ethics Law. Marcolini's mother, who is also a teacher in the School District, is a member of Marcolini's immediate family. Pursuant to Section 3(a) of the Ethics Law, Marcolini would not be prohibited from voting on the final collective bargaining agreement as long as her mother is a member of a class /subclass which includes others, with Marcolini's mother being affected to the same degree as the other class /subclass members. Marcolini may not participate in negotiations or receive confidential information regarding the contract. The restrictions and prohibitions set forth above must be followed. 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 mall, 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. /Since ely Vincent J. Dopko Chief Counsel