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HomeMy WebLinkAbout01-538 AndersonArthur J. Stewart, Esquire Arthur Stewart & Associates, P.0 Attorneys at Law 600 Market Street Warren, PA 16365 Dear Mr. Stewart: ADVICE OF COUNSEL April 16, 2001 01 -538 Re: Conflict; Public Official /Employee; School Director; Immediate Family; Sister Employed as Principal by School District; Executive Session; Brother -In -Law; Intermediate Unit; Contract; Vote; Stewart Advice 00 -620. This responds to your letter of March 2, 2001, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act ") presents any prohibition or restrictions upon a school director whose sister is employed by the school district as a principal as to participating in an executive session when the teachers' labor contract will be discussed; and participating in negotiations and votes concerning the intermediate unit contract when the school director's brother -in -law is employed by the intermediate unit as a speech and language pathologist. Facts: As Solicitor for the Warren County School District ( "School District "), you request an advisory on behalf of John Anderson ( "Anderson "), a member of the Warren County School District Board of Directors ("Board"). Anderson's sister is employed by the School District as a principal. You state that principals are not involved in contract negotiations or consulted by the teachers' union with respect to those negotiations. Although school principals are not members of the teachers' bargaining unit, under Act 93, they enjoy certain contract provisions that appear in the teachers' contract, including a "me too' provision, which affords principals the same medical benefits as the teachers under their labor contract with the School District. After citing Stewart Advice 00 -620, you ask whether Anderson may participate in an executive session whe the teachers' labor contract will be discussed. Anderson's brother -in -law is a speech and language pathologist employed by the intermediate unit, which provides services to the School District pursuant to a contract negotiated annually between the two parties. The Personnel Committee of the Board generally negotiates the contract, which is then voted upon by the entire Board. This year, Anderson has been appointed to the Personnel Committee. You ask whether Anderson may participate in the Personnel Committee's negotiations concerning the intermediate unit contract and the Board's vote concerning that contract. Discussion: It is initially noted that pursuant to Sections 1107(10) and (11) of the Ethics Act, 65 Pa.C.S. §1107(10), (11), advisories are issued to the requestor based StewarUAnderson 01 -538 April 16, 2001 Page 2 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 for the Warren County School District, Anderson is a public official as that term is defined in the Public Official and Employee Ethics Act ( "Ethics Act "), and hence Anderson is subject to the provisions of that law. Section 1103(a) of the Ethics Act provides: 41103. 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 that pertain to Section 1103(a) are defined in the Ethics Act as follows: 41102. 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. "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. Section 11030) of the Ethics Act provides: §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 StewarUAnderson 01 -538 April 16, 2001 Page 3 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 11030) 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 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 circumstances you have submitted, 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. In this case, it is clear that Anderson's sister is a member of his "immediate family." The seminal Commission decision regarding the extent to which school directors have a conflict of interest under Section 1103(a) as to collective bargaining agreements involving immediate family members is Van Rensler, Opinion No. 90 -017. The issue in Van Rensler was whether the Ethics Act 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 Act 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. StewarUAnderson 01 -538 April 16, 2001 Page 4 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 Act 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. The instant case is factually distinguishable from Van Rensler, supra, in that Anderson's sister is a principal who is not covered by the teachers' contract. Further, you state that principals are not involved in contract negotiations or consulted by the teachers' union with respect to those negotiations. Because there is no consultation between teachers and principals, there is no potential for the use of confidential information by Anderson for a financial gain for his sister. Hence, Anderson may participate in an executive session when the teachers' labor contract will be discussed. With regard to your second question, since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and since a brother -in -law is not in a familial relationship delineated above, Section 1103(a) of the Ethics Act would not prohibit Anderson from participating as a member of the Personnel Committee of the Board with regard to negotiations concerning the intermediate unit contract or votin g on the intermediate unit contract. See, Pulice v. State Ethics Comm'n 713 A.2d 161 (Pa. Commw. 1998), appeal denied, 557 Pa. 642, 742 A.2d 1211 (1998). 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. Conclusion: As a School Director of the Warren County School District, Anderson is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11. Anderson's sister is a member of his immediate family. Based upon your factual submission that principals are neither covered by the teachers' contract, involved in contract negotiations nor consulted by the teachers' union with respect to those negotiations, there is no potential for the use of confidential information by Anderson for a financial gain for his sister. Hence, Anderson may participate in an executive session when the teachers' labor contract will be discussed. Section 1103(a) of the Ethics Act would not prohibit Anderson from participating as a member of the Personnel Committee of the Board with regard to negotiations concerning the intermediate unit contract or voting on the intermediate unit contract which covers his brother -in -law because Anderson's brother -in -law is not a member of his immediate family as that term is defined in the Ethics 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. StewarUAnderson 01 -538 April 16, 2001 Page 5 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