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HomeMy WebLinkAbout98-562 CanadaFred A. Holland, Esquire Murphy, Butterfield & Holland, P.C. 442 William Street Williamsport, PA 17701 Dear Mr. Holland: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1 610 ADVICE OF COUNSEL May 28, 1998 98 -562 Re: Conflict; Public Official /Employee; School Director; Use of Authority of Office; Confidential Information; Immediate Family; Son; Professor; College; Daughter - in -Law; Teacher; Collective Bargaining; Budget Information; Pennsylvania State Education Association. This responds to your letters of April 24 and April 29, 1998 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a school director, whose son is also a school director in the district and a professor at a college where his bargaining unit is affiliated with the Pennsylvania State Education Association (PSEA), and whose daughter -in -law is employed by the district as a teacher, with regard to regard to participation in the collective bargaining process and receiving budget information when the teachers' bargaining unit is affiliated with PSEA. Facts: As Solicitor for the Williamsport Area School District (District), you request an advisory from the State Ethics Commission on behalf of Shirley Canada (Canada), a member of the District Board of Directors (Board) which is currently involved in collective bargaining. Canada's son, James Temple (Temple), is also a member of the Board and a Professor at the Pennsylvania College of Technology. Temple is a member of a bargaining unit at the College which is affiliated with PSEA. Three other bargaining units within the District including the teachers are also affiliated with PSEA. Temple's Holland, 98 -059 May 28, 1998 Page 2 membership in the PSEA affiliate at the College bars his participation in collective bargaining as a Board member under the Public Employee Relations Act (PERA). In addition, Temple's wife is a teacher with the District. With regard to collective bargaining, it is your understanding that the State Ethics Commission reads the Ethics Act (Act 9 of 1989) in conjunction with the statutes, including the PERA. You also reference Commission Opinion No. 90 -017 and Advice of Counsel No. 91 -508. You have not read the two advisories but request copies of both. Because Canada's son is a member of a PSEA affiliate, you seek an advisory as to whether she is precluded from participating in the collective bargaining process where PSEA represents bargaining units within the District; whether Canada is precluded from participating in collective bargaining with respect to teachers because her daughter -in -law is a teacher in the District; and whether Canada should be given budget information relating to collective bargaining prior to the proposed budget being made public. At this time, Canada has not taken part in collective bargaining and has not received information related to the bargaining process. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Public Official and Employee Ethics Law ( "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 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 a School Director for the Williamsport Area School District, Canada is considered a public official subject to the Ethics Law. follows: 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 related to Section 3(a) are defined in the Ethics Law as Holland, 98 -059 May 28, 1998 Page 3 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. 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. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities (i) 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 Holland, 98 -059 May 28, 1998 Page 4 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 the above provisions of 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. In this case, it is clear that Temple, the son of Canada, is a member of her "immediate family," while Canada's daughter -in -law is not. The seminal Commission decision which applies Section 3(a) under facts similar to those which you have submitted is Van Rensler, Opinion No. 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 Holland, 98 -059 May 28, 1998 Page 5 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". M, 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. Nlattie, Advice No. 91 -508, applied the Van Rensler principles to a situation where collective bargaining was taking place coincidentally with budget preparations. Per the submitted facts, some of the budgetary information which was to be provided to the school directors would show proposed changes for total salary and fringe benefits as well as categorized information regarding proposed increases or decreases in salaries. Furthermore, information was to be provided by the negotiating team to the administration which information would be used by the administration in preparing financial figures for the proposed budget. The Advice concluded that a school director with such a conflict could receive general financial information for the proposed budget which information did not impact upon the negotiation process with the bargaining unit. However, such a school director could not receive any financial information related to the budget which would impact upon the negotiation process with the bargaining unit, including but not limited to line -by -line items such as salaries, or specific information from which one could deduce such line -by -line items. The school director could not receive information regarding the background of negotiations or the analysis of negotiations at any time. However, the School Director could have access to information once it became public. Having set forth the above principles, the instant matter shall be addressed. As to Temple, although he is Canada's son, he is not employed by the District but is rather a School Director himself. Since PSEA is not a business with which Temple is associated, and in that regard it is factually assumed that he has no financial interest or official position in PSEA within the meaning of those terms in the Ethics Law, Canada would not be prohibited from participating in the collective bargaining process and receiving budget information as it relates to her son. Regarding Canada's daughter -in -law, she is not a member of Canada's "immediate family" as that term is defined under the Ethics Law. Accordingly, Canada would not be prohibited under the Ethics Law from participating in the collective bargaining process and receiving budget information even though her daughter -in -law is a teacher, subject to the following cautionary. Holland, 98 -059 May 28, 1998 Page 6 Although a daughter -in -law would not be within the definition of "immediate family" set forth above, the State Ethics Commission has, in one instance, found a violation of Section 3(a) where the public official used the authority of office to create a new employment position and to appoint his son -in -law to same. The Commission found that the son -in -law's salary increase resulted in a direct private pecuniary benefit to the public official's daughter — who was a member of his immediate family — through the deposit of such monies in a joint account where they were used to satisfy joint obligations for which the daughter was legally liable. Pulice, Order No. 1035 (presently on appeal to the Commonwealth Court of Pennsylvania at Docket No. 0875 C.D. 1997). Regarding your request for copies of Commission advisories, copies of adjudications of the Commission are sent to two libraries in each county, one of which is the county seat. This Advice is limited to addressing the applicability of Section 3(a) of the Ethics Law. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 3(a) of the Ethics Law. Further, you are advised that Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public 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. 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. Specifically not addressed herein is the applicability of the Public School Code and PERA. Conclusion: As a School Director for the Williamsport Area School District, Canada is a public official subject to the provisions of the Ethics Law. Pursuant to Section 3(a) of the Ethics Law, Canada may participate in the collective bargaining process and receive budget information subject to the qualifications noted above. 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. Holland 98 -059 May 28, 1998 Page 7 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 erely, Vincent J. pko Chief Counsel