Loading...
HomeMy WebLinkAbout24-560 Gelsinger PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL September 5, 2024 To the Requester: Keith Gelsinger 24-560 Dear Mr. Gelsinger: This responds to your submission received August 12, 2024, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: Whether, pursuant to Section 1103(a) ofthe Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), a School Director for the South Western School District (“School District”) would have a conflict of interest with regard to participating in negotiations pertaining to a new labor contract between the School District and the collective bargaining unit for the School District’s teachers, where the School Director’s wife is employed as a teacher with the School District and is a member of the teachers’ collective bargaining unit. Brief Answer: The School Director would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in negotiations pertaining to a new labor contract between the School District and the teachers’ bargaining unit unless the class/subclass exclusion would be applicable as to any impact upon the School Director’s 1 wife, who is a member of the School Director’s immediate family. Facts: 1 Pursuant to the definition of “conflict” or “conflict of interest” set forth in Section 1102 of the Ethics Act, action that 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, does not constitute a conflict of interest. Gelsinger, 24-560 September 5, 2024 Page 2 You are a School Director for the School District, which is located in Hanover, Pennsylvania. Your wife is employed as a teacher with the School District, and she is a member of the collective bargaining unit that represents the School District’s teachers (“the Teachers’ Bargaining Unit”). Although a new labor contract between the School District and the Teachers’ Bargaining Unit is not expected to be negotiated in 2024, topics related to a new labor contract could be discussed periodically with the Teachers’ Bargaining Unit. Your wife is not a union representative, and she would not be expected to be a member of meetings to negotiate a new labor contract. It would not be expected that your wife would be the subject, as an individual, of any topics to be negotiated. The question presented by your advisory request is whether the Ethics Act would permit you to participate, as a member of the School District’s negotiations committee, in negotiations on a new labor contract between the School District and the Teachers’ Bargaining Unit. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester 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 requester has truthfully disclosed all of the material facts. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest.--No public official or public employee shall engage in conduct that constitutes a conflict of interest. (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 Gelsinger, 24-560 September 5, 2024 Page 3 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(a), (j). The following terms related to Section 1103(a) 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 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. “De minimis economic impact.” An economic consequence which has an insignificant effect. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict” or “conflict of interest” (i.e., the “de minimis exclusion” and the “class/subclass exclusion”), 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public office or confidential information received by holding such a public position for the private Gelsinger, 24-560 September 5, 2024 Page 4 pecuniary (financial) benefit of the public official/public employeehimself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The use of authority of office is not limited merely to voting but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. A conflict of interest would not exist to the extent the "de minimis exclusion" or the “class/subclass” exclusion set forth within the Ethics Act’s definition of the term "conflict" or "conflict of interest" would be applicable. The de minimis exclusion precludes a finding of conflict of interest as to an action having a de minimis (insignificant) economic impact.Thus, when a matter that would otherwise constitute a conflict of interest under the Ethics Act would have an insignificant economic impact, a conflict would not exist and Section 1103(a) of the Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburg, Order 900. In order for the class/subclass exclusion to apply, two criteria must be met: (1) the affected public official/public employee, immediate family member, or business with which the public official/public employee or immediate family member is associated must be a member of a class consisting of the general public or a true subclass consisting of more than one member; and (2) the public official/public employee, immediate family member, or business with which the public official/public employee or immediate family member is associated must be affected "to the same degree" (in no way differently) than the other members of the class/subclass. 65 Pa.C.S. § 1102; see, Kablack, Opinion 02-003; Rubenstein, Opinion 01-007. The first criterion of the exclusion is satisfied where the members of the proposed subclass are similarly situated as the result of relevant shared characteristics. The second criterion of the exclusion is satisfied where the individual/business in question and the other members of the class/subclass are reasonably affected to the same degree by the proposed action. Kablack, supra. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a School Director for the School District, you are a public official subject to the provisions of the Ethics Act. Your wife is a member of your “immediate family” as that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the School District School Board that would financially impact you or your wife. You specifically would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating, as a member of the School District’s negotiations committee, in negotiations regarding a new labor Gelsinger, 24-560 September 5, 2024 Page 5 contract between the School District and the Teachers’ Bargaining Unit unless the class/subclass exclusion would be applicable as to any impact upon your wife. See, Davison, Opinion 08-006. (The submitted facts do not enable a conclusive determination as to whether the class/subclass exclusion would be applicable as to any impact upon your wife.) As noted above, in each instance of a conflict of interest you would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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 requester 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. Respectfully, Bridget K. Guilfoyle Chief Counsel