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HomeMy WebLinkAbout92-610Jacqueline L. Russell Russell and Russell Thompson Building Third Floor, Room 310 Pottsville, PA 17901 Dear Ms. Russell: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 2, 1992 Esquire 92 -610 Re: Conflict, Public Official /Employee, School Director, Immediate Family Member, Spouse, Collective Bargaining Agreement, Negotiating Team, Contract, Vote. This responds to your letters of May 22, 1992 and May 29, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether under the Public Official and Employee Ethics Law a school director may have access to confidential information regarding negotiations for a contract with the teachers or may vote on the final contract where a member of his immediate family (spouse) is a teacher in the school district. Facts: As legal counsel for two individual School Directors, you seek an advisory from the State Ethics Commission on their behalf regarding their potential, prospective conduct. The School Board is currently in the process of negotiating a new contract with the teachers. The School District in question has nine Members on the Board, of which three have spouses who are school teachers. The Board president appointed the other six members to serve as a negotiating committee. You state that the six members are the majority of the Board and those without the conflict. One of the School Board Members whom you represent, hereinafter "School Director A," has a spouse who is a school teacher in the District. The other School Board Member whom you represent, hereinafter "School Director B," is not married to a school teacher, and according to you has no conflict in the contract negotiation. School Diredtor B is one of the six School Board Members appointed to serve as the negotiating committee. Jacqueline L. Rusae ll, Esquire July 2, 1992 Page 2 You pose the following specific inquiries: 1. Where a negotiating committee is "composed of six Members - being the majority of the Board - you ask whether committee meetings may be held without notifying all Members of the negotiating committee of the date and time of any meeting as otherwise required for regular executive meetings per the Sunshine Act. You ask that it be assumed that a meeting of the committee occurs at which time it is decided that a negotiating meeting with the teachers should be . scheduled, but only three of the six Members are later advised of the date and time of the negotiating meeting. You ask whether the three Members may properly conduct the meeting, negotiate with the teachers' representatives on behalf of the full committee and come to the full Board to present the proposal reached at the meeting. You ask whether School Director B should attend such a meeting, negotiate on behalf of the committee and present the proposal as a committee proposal if he is aware that all committee Members were not specifically notified of the meeting. You pose as an example, where another Member says he is not interested to negotiate or is unable'to be contacted by phone on short notice of the date and time of the meeting. You state that School. Director B is specifically concerned whether the notice requirement of executive sessions in the Sunshine Act is applicable to this situation for all committee action to be held in the future. 2. In the event the full Board decides to discuss, analyze car otherwise consider the substance of the negotiation or the procedures undertaken by the committee on the negotiations, you ask whether it is appropriate for the Members of the Bard who, according to you, have the conflict, and specifically School Director A, to remain in the room during the discussions regarding negotiations or the procedures involving the negotiations when the final proposal on the contract has not yet been ascertained. You ask whether the advisory world change if the discussions - typically confidential - are held in public session. You state that School Director A belieiies he should exit the room even in such events due to the "appearance." School Director A is concerned that Board discussion on the negotiations and process may occur publidly rather than in executive session and seeks an advisory as to his conduct in such an event. 3. Whether it is appropriate for Board Members . who attend an executive session called to discuss the negotiations oft the teachers' contract, specifically School Director B, to reveal to parties excluded from the session due to a conflict, specifically School Director A, what has Occurred at the closed executive meeting. Jacqueline L. Russell, Esquire July 2, 1992 Page 3 4. In the event the contract proposal is finally determined and presented to the Board for a vote, you ask under what circumstances, if at all, School Director A may discuss, analyze and /or vote on the proposal. After summarizing the above inquiries, you note that you have previously contacted this Commission on-behalf of .other individuals andhave been informed that you may do so assuming that those individuals have requested that you do so. Finally, you note that although it is your understanding that negotiations with the teachers are beginning to occur, your request for an advisory regards future prospective conduct by your clients, School Director A and School Director B. Discussion: It is initially noted that your request for an advisory may only be addressed with regard to the prospective conduct of your clients, School Director A and School Director B. To the extent your inquiry regards past conduct or the conduct of other school directors, your inquiry may not be addressed. In their capacities as School Directors, School Director A and School Director B are public officials as that term is defined under the Ethics Law, and hence School Director A and School Director B are both 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 Jacqueline L. R.uesell., Esquire `July 2, 1992 'age 4 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 Mich 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: 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 thee body required to abstain from voting under the provisions of this section makes the majority - or other legally required vote of approval. Jacqueline L. Russell, Esquire July 2, /992 Page 5 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. Turning to your first specific inquiry, that inquiry may not be addressed in that it poses questions under the Sunshine Law rather than the Ethics Law. This Commission does not have the specific statutory jurisdiction to interpret the provisions of the Sunshine Law, nor does it appear in_ this case that the provisions of the Sunshine Law impact upon an application of the Ethics Law or that the Ethics Law accords jurisdiction in relation to provisions of the Sunshine Law. sic, Bigler, Opinion 85-020. Thus, your first specific inquiry may not be addressed. As for your second specific inquiry, 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. Pursuant to Section 3(a), School Director A would have a conflict of interest which would preclude access to confidential information regarding negotiations on the teachers' contract or the procedures involving such negotiations, when the final proposal on the contract with the teachers has not yet been ascertained. This conclusion is based upon the Commission's opinion in Van Rensler, Opinion 90 -017. In Van Rensler, the State Ethics Commission considered issues similar to those which you have presented. 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 they school board directors from voting on the Jacqueline L. Russell, Esquire July 2, 1992 Page .6 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 con more than one member and the family members would be affected exactly as the other members of the subclass. The Cogmi.sson held that if these two prerequisites for applying the xctusion were met, the school directors could vote on the final ,c . Lecttive bargaining agreement. However, the Commission held that the Ethics Law precluded the parts ipation of the directors in the negotiation process. Citing .prior opinions under former Act 170 of 1978, the Commission recognized the underlying reasoning of those prior opinions with ;the purpose of insuring that public officials are impartial and Xhat ,their interests are sufficiently separated from their :r;espGyxis;ib_ .sty to the public. Van Rensler, Opinion 90 -017 at 4. ie Commission cited the definition of "conflict of interest" in { went Act 9 of 1989 as specifically prohibiting a public official .. p employee from using confidential information obtained through public office or employment for an immediate family member's pri pecuniary benefit. A school board director participating on the negotiating team would be privy to 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 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. The above principles would apply to preclude School Director A from accessing such confidential information even if it would be at an executive session of the Board rather than through participation on the negotiating team itself. You ask whether this advisory would change in this regard if the discussions which are typically confidential would be held in public session. Conducting such discussions in a public session would indeed transform the nature of the information discussed from confidential to public. Thus, School Director A would not transgress Section 3(a) of the Ethics Law by having access to such information discussed in a public session. This Advice does not Jacqueline L. Russell, Esquire July 2, 1992 Page 7 address the propriety of the Board's conducting such discussions in a public session, because those issues would be beyond . the parameters of the Ethics. Law. Your third specific inquiry questions the propriety of School Director B revealing to.School Director A what has occurred at a closed executive meeting called to discuss the contract negotiations. Under these circumstances, Section 3(a) would not restrict the conduct of School Director B because the requisite element of a prohibited private pecuniary benefit to School Director B, a member of his immediate family, or a business with which he or a member of his immediate family is associated would not be present. Rather, Section 3(a) would restrict the proposed conduct of School Director A who may not have access to such confidential information because he has a conflict of interest. The burden would be upon School Director A to refuse the proffered access to such confidential information. As for your fourth specific inquiry, the circumstances under which a school director may vote on a final collective bargaining agreement have been fully discussed above in the context of the opinion in Van Rensler, supra. School Director A would be permitted to vote on the final contract proposal if his spouse is a member of a subclass containing more than one member, in this case a subclass of teachers, and the spouse is affected exactly as the other members of the subclass. 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 School Code. Conclusion: As School Directors, your clients referred to herein as "School Director A" and "School Director B" are public officials subject to the provisions of the Ethics Law. Pursuant to Section 3(a) of the Ethics Law, the School Director whose spouse is a teacher in the School District (School Director A) would have a conflict of interest which would preclude access to confidential information pertaining to the negotiations or procedures for negotiations for the contract with the teachers. School Director A may not be present at non- public sessions of the Board during discussion, analysis, or other consideration by the Board pertaining to negotiations for a contract• with the teachers or the procedures undertaken in such negotiations. School Director A must refuse any proffered access to such confidential information., Subject to the restrictions, conditions and qualifications noted above, School Director A may vote on the final contract proposal. Lastly, the propriety of the proposed: conduct has only been Jacqueline L. Russell, Esquire July 2, 1992 Page 8 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code S2.12. Sincerely, Z.1 Vincent J. Dopko Chief Counsel