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HomeMy WebLinkAbout00-593 PrattGregory S. Fox, Esquire Fox & Fox, P.C. Attorneys at Law 323 Sixth Street Ellwood City, Pennsylvania 16117 Dear Mr. Fox: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL July 20, 2000 Re: Conflict; Public Official /Employee; Use of Authority of Office; Confidential Information; School Director; Teacher; Immediate Family; Wife; Collective Bargaining; Pennsylvania State Education Association; School District; Negotiations; Vote. This responds to your letters of May 22, 2000 and June 13, 2000, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq., presents any prohibition or restrictions upon a School Director, whose wife is employed by the School District as a teacher, and a teacher, who is also a School Director in the School District and is a member of the Pennsylvania State Education Association ( "PSEA "), as to being present during School Board meetings where the School Board is updated as to the process of contract negotiations of the collective bargaining agreement between the School District and PSEA and voting to accept or reject the final contract. Facts: As the attorney for the Riverside Beaver County School District ( "School District "), you, along with Benjamin Pratt, the attorney hired by the School District to negotiate the Collective Bargaining Agreement, request an advisory from the State Ethics Commission on behalf of Thomas Minett ( "Minett") and Michael Connifey ( "Connifey "). Minett, whose wife is a teacher in the School District, is a member of the Riverside Beaver County School Board ( "School Board "). Connifey, who is also a School Board member, is a teacher in the Blackhawk School District and is a member of PSEA. The School District is in the process of negotiating a Collective Bargaining Agreement with its teachers, who are represented by PSEA. Minett and Connifey were present at the May 8, 2000 Executive meeting, during which they were told that the School District had made an offer to PSEA. PSEA did not respond to the offer. Minett and Connifey have not been informed as to whether PSEA has made an offer with respect to the teacher's contract. Minett and Connifey were told that the School District's offer required the teachers to assume some responsibility for co- payments relative to their health insurance. In a supplemental letter dated June 9, 2000, Minett has outlined some facts which he believes are significant. Minett states that he and Connifey were both present and FAX: (717) 787 -0806 • Web Site: www.ethics.statepa.us • e -mail: ethics @state.oa.us 00 -593 Fox, 00 -593 Jury 20, 2000 Page 2 participated in the preliminary strategy meeting of the School Board where the general range of authority to settle the contract was discussed. Neither Minett nor Connifey participated in the negotiations or received any information concerning the substance of the negotiations after the preliminary meeting. Minett was consulted about questions which were raised regarding his and Connifey's participation, or lack thereof, in the negotiations. You and Attorney Pratt have discussed this issue and advised Minett and Connifey that they could attend and participate in the Executive Session of the School Board on May 8, 2000. Minett states that he learned nothing more than what was already presented at the public meetings, except that certain personalities and absences were complicating the negotiation process. Minett states that he has also teamed that there have been some complaints regarding his and Connifey's participation at the May 8, 2000 meeting. Pending an opinion from the State Ethics Commission and upon your advise, Minett and Connifey are no longer participating in the negotiations. In a letter dated July 18, 2000, you provided additional information clarifying your original request for an advice. You state that Connifey is a member of the School Board. Secondly, you state that the term "Association" in your original request refers to PSEA. Finally, you state that to your knowledge there is no connection between the negotiations currently taking place at the School District and the contract at the Blackhawk School District. Given the above facts, you specifically ask whether Minett and Connifey may be present at meetings when the School Board is updated as to the process of the contract negotiations. You further inquire as to whether, as a result of the information learned at the May 8, 2000 meeting, Minett and Connifey may vote on the ultimate contract with PSEA. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. § §1107(10), (1 1), advisories are issued to the requestor based upon the facts which the request 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 School Directors for Riverside Beaver County School District, Minett and Connifey would be considered public officials subject to 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 Fox, 00 -593 uiJ1 20, 2000 Page 3 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. "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. 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 No. 809. Use of authority of office includes, but is not limited to, discussing, c om i ng with others, lobbying for a particular result, and voting. 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 officiaVemployee 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. Fox, 00 -593 TuT9 20, 2000 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 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 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, your specific inquiries shall be addressed. As to Minett, it is noted that he was present during an Executive meeting on May 8, 2000, which is a past action and cannot be addressed by the State Ethics Commission. Parenthetically, the State Ethics Commission held in Van Rensler that a school director, whose immediate family member is a school district employee, is prohibited from being present at such a meeting. Regarding whether Minett may be present when the Board is updated as to the process of the contract negotiations, the above principles would apply to preclude Minett from receiving onfidential information even if it would be at an executive session of the School Board or volunteered by some other School Director, rather than participating on the negotiating team itself. See, Russell, Advice 92 -610. Minett would not transgress Section 1103(a) of the Ethics Acflowever, by receiving updates concerning negotiations that are discussed in public sessions. Id. Furthermore, the Ethics Act prohibits Minett from obtaining information about the direction the School Board is going with the negotiations. While Minett is entitled to information which is not confidential and is available to the public, in accord with Van Rensler, Minett may not have access to confidential information. Fox, 00 -593 Jury 20, 2000 Page 5 As to whether Minett may vote on the ultimate contract with PSEA, the class /subclass exception to a conflict of interest would apply subject to the following qualifications. In order for the class /subclass exclusion to apply, the immediate family member must be in a class /subclass consisting of more than just one person with the immediate family member being affected to the same degree as the other members of the class /subclass. See, Davis, Opinion No. 89 -012. Minett's wife is a member of his immediate family as thif term is defined in the Ethics Act. The class would be teachers and Minett's wife would be a member of such a class consisting of more than one teacher. Furthermore, based upon the assumption that Minett's wife will be affected by the contract to the same degree as other teachers in the School District, the prerequisite conditions are met. Subject to the foregoing conditions, the class /subclass exception to the definition of conflict of interest would apply and Minett would be allowed to vote on the ultimate contract with PSEA. Turning to your inquires as they would apply to Connifey, Connifey would be allowed to be present when the School Board is updated as to the process of the contract negotiations and would be allowed to vote on the ultimate contract with PSEA. Based upon the proffered facts that Connifey is a teacher in the Blackhawk School District, which has no connection with the said Collective Bargaining Agreement, Connifey would not derive a private pecuniary benefit to himself when he is updated as to the negotiation process or when he votes on the ultimate contract. Furthermore, based upon the submitted facts, Connifey, unlike Minett, does not have an immediate family member who is a teacher with the School District, therefore, the contract will not benefit a member of Connifey's immediate family. Lastly, since Connifey is a member of PSEA, it would not be a business with which he is associated. In this regard, it is factually assumed that PSEA is not a business with which a member of Connifey's immediate family is associated. This Advice is limited to addressing the applicability of Section 1103(a) of the Ethics Act. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act 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 Act; 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 School Code. Although the conduct of School Directors Minett and Connifey 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: (a) No person who is a member of the 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 interest of the public employer, shall participate on behalf of the public employer in the collective bargaining process 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 Fox, 00 -593 Try 20, 2000 Page 6 collective bargaining negotiations or in any matter in connection with such negotiations. 43 P.S. §1101.1801. Conclusion: As School Directors for Riverside Beaver County School District, Minett and Connifey are public officials subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. As to Minett, he would not be prohibited from voting on a final collective bargaining agreement where a member of his immediate family, as a teacher of the School District, would be covered by the contract, provided the immediate family member would be a member of a class /subclass consisting of more than just that family member and would be affected by the official action to the same degree as the other class /subclass members. Pursuant to Van Rensler, Minett may not participate in negotiations or receive confidential information regarding the contract or be present when the School Board is updated as to the process of the negotiations. Minett may receive such information when it is no longer confidential and is available to the public. As to Connifey, he would be allowed to be present when the School Board is updated as to the process of the contract negotiations and would be allowed to vote on the ultimate contract with PSEA, given factually that no immediate family member is employed by the School District and PSEA is not a business with which any immediate family member is associated. The restrictions and prohibitions set forth above must be followed. 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. cerely, incent�. D pko Chief Counsel