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HomeMy WebLinkAbout93-545 WiseSTATE ETHICS COMMISSION 309 FINANCE BUILDING RO. BOX 1 1470 HARRISBURG, PA 17.108 -1470 .. TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL. April 7, 1993 Robert C. Wise, Esquire ._ 93 -545 Suite 604, Penn Tower 25 Test Third Street Williamsport, PA 17701 Re Conflict, Public Official /Employee, School Director, Use of Authority of Office or Confidential Information, Vote, Collective Bargaining Agreement, Negotiating Team, Contract, Bargaining Unit, Budget, Immediate Family, Spouse. Dear Mr. Wise: This responds to your letters. of March 3, 1993, . and March 10, 1993, as well as the March 17_., 1993 letter of Mr. Lawrence Missigman, by which you requested advice from the State Ethics Commission. Issue: You ask whether, under the Public Official and Employee Ethics Law, a school director whose spouse is a teacher and member of the education association that represents the teachers, may: 1. Submit for the negotiating committee's consideration "input" consisting of a written list of goals or objectives which he believes are reasonable for the negotiating team and the school district; 2. Receive, after a collective bargaining agreement has been approved, specific budget information on the cost of various provisions or elements of the said collective bargaining agreement, as to the present or prior years; and 3. Receive, after the budget has been approved, specific budget information on the costs of various provisions or elements of the collective bargaining agreement, as to current or prior years. Facts: As Solicitor for the South Williamsport Area School District, you request an advisory on behalf of Mr. Lawrence Robert C. Wise, Esquire April 7, 1993 Page 2 Missigman, President of the South Williamsport Area School District Board of Directors. You state that Mr. Missigman's wife is a teacher and member of the education association that represents the teachers. Although Mr. Missigman has assiduously avoided taking part in labor negotiations, whether as part of the negotiating team or the board as a whole, he nevertheless believes he should have some input in terms of suggesting what are reasonable goals and objectives for the negotiating team and the District in any given year. Specifically, Mr. Missigman seeks the .Commission's advice on whether he may submit a written list of these goals and objectives to the chairman of the negotiating committee the committee's consideration, or whether such action on his part constitutes a "conflict of interest" under 65 P.S. §403(a) of the Ethics Law. Further, you state that it is -Mr. Missigman's understanding that he is permitted to vote on the collective bargaining agreement as in Van Hensler, Opinion 90 -017, and may also' vote on the proposed budget once it has become a matter of public record as in Mattie, Advice 91 -508. You state that Mattie seems to say that while Mr. Missigman can be provided with creneral budget information, he may not be provided with specific budget information regarding the various costs : of the collective bargaining agreement, including salary increases, fringes, etc. However, you state that what is not clear is whether this is an absolute prohibition or whether, once the collective bargaining agreement has been approved, Mr. Missigman can then receive specific budget information concerning the cost of various provisions of the collective bargaining agreement in current and prior years. Thus, the second inquiry posed is whether, after a collective bargaining agreement has been approved, Mr. Missigman may receive specific budget information on the cost of various provisions or elements of the said collective bargaining agreement, as to current and prior years. Finally, in Mr. Missigman's letter of March 17, 1993, he has raised a third specific inquiry. He asks whether, after the budget has been adopted, he may receive specific budget information on the costs of various provisions or elements of the collective bargaining agreement, as to current and prior years. Based upon the above, you request an advisory from the State Ethics Commission. Discussion: As President of the South Williamsport Area School District Board of Directors, Mr. Lawrence Missigman is a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. Robert C. Wise, Esquire April 7, 1993 Page 3 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 asso ciated. "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 . 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, ,Refer-ence'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. RObe•rt C. Wise, Esquire April 7, 1993 Page 4 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 disolose 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 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 the Ethics Law to the circumstances which 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 /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. Robert C. Wise, Esquire April 7, 1993 Page 5 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 Commission recognized the underlying reasoning".of those prior opinions with the purpose of - insuring that public officials are impartial and that their interests are sufficiently separated from their responsibility to the public. Van Rensler, Opinion 90 -017 at 4. The Commission the definition -of "conflict of interest" in present Act 9 Of 198.9 as specifically prohibiting a public official or employee from using confidential information obtained through public office ror' employment for an immediate family member's private 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 ' 3recluding the ruse - of confidential information obtained through the -public-Office as school board director to-defeat the bargaining proces The above principles would "similarly apply to preclude a school director from accessing such confidential information even if it would be at an executive session of the Board, or volunteered by some other school director, rather than through participation on obert C. Wise, Esquire April 7, 1993 Page 6 the negotiating team itself. • �eg, Russell, Advice 92 -61O. However, the school director would not transgress Section 3(a) of the Ethics Law by having access to such information discussed in a public session. Id. Your letter of inquiry cites the Van Rensler decision. Nevertheless, you ask whether Mr. Missigman may submit for the negotiating committee's consideration "input" consisting of a written list of goals or objectives which Mr. Missigman believes are reasonable for the negotiating team and the School District. This proposed conduct would clearly be prohibited by the Ethics Law and would blatantly contravene the Van Rensler decision. There is no exception which would .permit a public official to circumvent the Ethics Law if he uses the authority of office by participating through written submissions rather than orally. Pursuant to Section 3ka) of. the Ethics Law, Mr. Missigman may not submit for the negotiating committee's consideration "input" regarding the collective bargaining negotiations /agreement. Before turning to the second specific inquiry, one additional point must be made. In the facts which you have submitted, you state that it is Mr. Missigman's understanding that he is permitted to vote on the collective bargaining agreement per Van Rensler, supra. In actuality, the Van Rensler ruling would permit Mr. Missigman to vote on the final collective bargaining agreement assuming that his. spouse would be a member of a subclass of teachers and would be affected to the same degree as all other members. Your second specific inquiry in which you seek clarification as to Mattie, Advice No.- 91 -50$ will now be addressed. You state that the source of confusion is whether the,prohibition against a .school director receiving specific budgetary information dealing with matters under. the collective bargaining agreement where the school director -has a conflict of interest. based upon an immediate family member being affected by the collective bargaining agreement, would 'be an absolute prohibition, or whether such information could be received once the collective bargaining agreement has been approved.. In Mattie, the focus of concern ,, 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 Van 'Rensler decision. 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 Robert C. Wise, Esquire April 7, 1993 Page 7 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 Mr. Missigman's 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 Mr. Missigman, because it could be used to defeat the bargaining process in future years. As to the third and final specific inquiry, by which Mr. Missigman' s . letter asks =whether, after =the budget has been adopted, he pray receive" specific budget •- information on the cost of various provisions or elements of th'e•collective agreement in current and prior years, the response again hinges upon the confidentiality of such information. To the extent the specific - budget information sought is a matter of public record, Mr. Missigman 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 agreements, he may not have access to it. 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 Ethic% 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. ConciiiSion: As President of the Louth Williamsport Area School District Board of Mr. Lawrence Missigman is a public official subject to the provisions of the Ethics Law. Pursuant to Section (a )' _of the Ethics Law, Mr. Missigman may not provide "input" =pertaining' to the collective bargaining negotiations/ agreement to the District's negotiating committee by submitting a written list of what he believes to be reasonable goals and objectives for the negotiating team in the District. Mr. Missigman may, however, vote on the final collective bargaining agreement Robert C. Wise, Esquire April 7, 1993 Page 8 conditioned upon the assumption that his spouse would be a member of a subclass affected by the contract and would be affected exactly as the other members of the subclass. After a collective bargaining agreement has been approved, Mr. Missigman may receive specific budgetary information concerning the costs of various matters under the collective bargaining agreement, for current or prior years, conditioned upon the assumption that such information would no longer be confidential. After the budget has been adopted, Mr. Missigman may receive specific budgetary information on the cost of various provisions or elements of a collective bargaining agreement, for current or prior years, conditioned upon the - assumption that -such information would no longer be confidential. 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. such. This letter is a public record and will be made available as 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. incerely, Vincent Vincent -'J. Dopko Chief Counsel