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HomeMy WebLinkAbout94-550 EvashavikG.N. Evashavik, Esquire Suite 520 Grant Building 310 Grant Street Pittsburgh, PA 15219 Dear Mr. Evashavik: STATE ETHICS COMMISSION - 309 FINANCE BUILDING P.Q. BOX 11470 HARRISBURG, _P 17108 - 1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 14, 1994 94 -550 Re: Conflict, Public Official /Employee, School Board, Use of Authority of Office or Confidential Information, Negotiations, Participation in Meetings and Discussions, Bargaining Agreements, Budget, Vote, Immediate Family. This responds to your letter of March 29,_1994 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, who have members of their immediate family employed by the School District, from participating in negotiations, voting on the budget and bargaining agreements or receiving information regarding the budget or the negotiations. Facts: You are Solicitor for East Allegheny School. District. At a regular meeting held on March 14, 1994, the School Board, including the individual members whose conduct is in question herein, directed you to ask the Ethics Commission for a ruling regarding negotiations and budget preparations. You have one. School Board Member whose wife is an aide employed by the School District. She is in the .Support Personnel Union. You are negotiating with that Union. You have School Board Member whose married daughter, not living in his home, is a teacher for the District. She is a member of the Teachers' Union. You are negotiating with that Union. You have a third School .Board Member whose son is an Assistant Coach for the School District. He is not a member of the Teachers' Union: However, his remuneration is based on what the position pays_to Bargaining Unit Memlbers. c Bargaining Unit Member wanted that position:. Acc0Eiingly, t School Director's son has taken that job as part - tile employment. Evashavik, G.N., Esquire, 94 -550 April 14, 1994 Page 2 Again, you are negotiating with that Union. 1' You are in the process of preparing your budget for 1994 -1995 schoor_year You understand that this Commission has made rulings that Board Members may not have access to budget information which is in any way relates to the respective Unions, the negotiating process or what offers might be being made or what financial considerations might be made. As Solicitor, you ruled they may not be on the Bargaining Committee „ and none of the three may have any hand in the negottatibxls, discussions or considerations of your proceedings with the Unions. You even included in this ruling the School Director whose son is a coach; even though he is not in that Union, . his son's remuneration is based on what Union Members receive. Based upon_the above, the Board has asked for a formal ruling from the State Ethics Commission as to the following questions: 1: Whether these Board Members may receive information prior to the passage of the budget? 2. Whether they may they vote on the final budget? 3. Whether they are entitled to have any information or take part in any proceedings relative to preparation of the budget which includes those matters which pertain to the negotiating process with the two unions? 4. What is the penalty if a School Board Member insists on sitting through these sessions despite a prospective ruling that he or she may not do so? Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. §S407(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 doe 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. S 5407(10), (11). An e 'dvipory only affords a defense to the extent the requestor has ruthft111- discidsed all of the material facts. As Directors fOr the East Allegheny Bchooi District, tilese individual's are `ublic officials as that term is deaai under the Ethics Law, acid hence they are Subject to the provision 's of that law. Evashavik, G.N., Esquire, 94 -550 April 14, 1994 Page 3 Section 3(a) of the Ethics Law provides: Section 3. Restricted Activ'ties. (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 saute ` 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 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. Evashavik, G.N., Esquire, April 14, 1994 Page 4 94 -550 Section 3(j) of the Ethics Law provides as follows: Seeti on 3 , Restr_icted 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 m4tter 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. ,Ue, xlakar, Advice 91- 523 -S. You are further advised that the use of authority of office is Evashavik, G.N., Esquire, 94 -550 April 14, 1994 Page 5 more than the mere mechanics of voting and encompasses all of the tasks needed to perform the functions of a given position. 121, Jmliante, Order No. 809. Use of authority of office includes discussing, conferring with others, lobbying for a particular result and/or any other use of the authority of office in which the result would be a private pecuniary benefit to a business with which a public official or a member of his immediate family is associated. In applying the above pravisitbns 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 /eiployment 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. It is clear in this case that under the Ethics Law, the wife the daughter and the son of the respective Board Members are `members of their "immediate families ". 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 board directors from voting on the finalized agreement, but that the school board directors could not take part' in the negotiations leading to the finalized agreement. In reaching this conclusion, the Commission held that the school board 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 directors in the negotiation process. Citing prior opinions under former Act 170 of 1978, the Comm- ission recognized that the underlying reasoning of those prior opiniOne was to insure that public officials are impartial and that their private interests are sufficiently separated from their responsibility to the public. an 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 Ev xshavik, G.N., Esquire, 94 -550 April 14, 1954 Page 6 confidential /oftwItation 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 fox the use of confidential information would be "minimized if not eliminated ". Id, at 4 -5. Thus, a fundamental basis for the an Rensler Opinion was precluding the use of confidential information - Obtained through the public office as school board director to defeat the bargaining process. The exclusion that exists within the definition of conflict regarding use of authority of office applies when such use affects to the same degree a class or sub -class consisting of an occupation or other group which would include a member of the public official's immediate family. This concept is set forth in yan Rensler and the advisories which follow it. The instant matter requires special consideration since the Board Members' immediate family are support personnel and a coach, rather than a teacher as was the case in Van Rensler. In order for the exclusion within the definition of conflict to apply, it is necessary that these family members also be part of a sub -class of school support personnel and coaches, that is; there must be more than one support personnel and coach. In addition, these family members could not be affected any differently from any other support personnel or coach. Alternatively, these family members could be in another subclass, within a group of people with a certain number of years experience, for example. The key factors are that they are in a subclass consisting of more than just one person and that each member of that subclass is treated equally. This result reflects the legislative intent that a public official does not have a conflict as to himself, a member of his immediate family or business with which he is associated when he, a member of his immediate family or the business is not affected any differently from the class or subclass. See, Davis, Opinion No. 89 -012 (School director's father was school district police officer). By applying the above provisions of the Ethics Law and the Van Rensler and Davis decisions to this case, your inquiries will be responded to seriatim. First, the Board Members may not participate in discussion concerning the adoption of a proposed budget as it relates to their respective immediate family members . and the Unions to which they belong if there is information in the budget which reflects the financial parameters as to which the Board would negotiate contracts with the unions. If such is the case, this activity would be comparable to negotiating since they would be actively participating in a process whereby confidential information could Evashavik, G.N., Esquire, 94 -550 April 14, 1994 Page 7 be used to affect the outcome. At this point, reference must be made to MAIIAgt, Advice No. 91-508. In Mattie, the focus of concern was upon the receipt of certain specific information as to the proposed budget at a point where it was confidential information and could impact upon the collective bargaining process. Therefore, its receipt by the school director who had the conflict would contravene the Ethics Law. The Advice specifically stated: Once the proposed budget is a matter of public record, it is no longer confidential information. The school board director may gain access to the proposed budget and may vote on the proposed' budget without transgressing the Ethics Law assuming as a first condition that the proposed budget first becomes a matter of public record. Mattie, Advice No. 91 -508 at 4 -5. In this case, conditioned upon the assumption that the collective bargaining agreement would have been finally approved, it would presumably become a matter of public record. Additionally, there would be no further potential for official participation as to that agreement if it had been finalized. Thus, the concerns raised in Mattie would not apply to restrict the Board Members access to information which is no longer confidential after a collective bargaining agreement has been finally, approved. However, information which would remain confidential, such as information which would reveal the strategy used in negotiations (even if reflected in confidential budgetary information), could not be accessed by these Board Members. After the budget has been adopted, whether they may receive specific budget information on various provisions, salaries or elements of the collective bargaining agreement in current and prior years hinges upon the confidentiality of such information. To the extent the specific budget information sought is a matter of public record, they, as well as any other member of the public, may have access to it. To the extent it remains confidential information and could impact upon pending or future collective bargaining agreements, they may not have access to it. l ee also, Wise, Advice No. 93 -545 Second, the Board Members, in accordance - with X_an_Renksler and Davis, may vote on the adoption of a final budget. Third, the Ethics Law prohibits these Board Members from being made aware of the direction the Board is going with the negotiations; prohibits them from having access to any information that is confidential; and prohibits them from taking part in any proceeding -- relative to preparation of the budget which includes matters pertaining to the negotiating process with the unions. Evashavik, G.N., Esquire, 94 -550" April 14, 1994 Page 8 While they are entitled to information which is not confidential and is available to the public, in accord with Van Rensler, they may not have access to confidential information. Fourth, the penalties for violations of the above; restrictions and prohibitions are set forth in Sections 7 and 9 of the Ethics Act, 65 P.S. § 407, 409. Such penalties include restitution of the financial gain. plus interest on the gain, treble damages, and felony charges with fines of not more than $10,000.00 or imprisonment for not more than five years, or both. 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. Conclusion: As Directors for the East Allegheny School District, these Members are public officials subject to the provisions of the Ethics Law. Pursuant to Section 3(a) of the Ethics Law, they would not be prohibited from voting on a final budget or contract where members of their immediate families are employees of the School District as long as these family members are members of a subclass consisting of more than just that family member and each subclass member is treated equally. The board Members may not participate in negotiations or receive confidential information regarding the contract or budget. They may receive such information when it is no longer confidential and is available to the public. The restrictions and prohibitions regarding their actions as 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 Evashavik, G.N., Esquire, 94 -550 April 14, 1994 Page 9 received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa.Code §132(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Si Vincent J. Dopko Chief Counsel