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HomeMy WebLinkAbout06-525 SekulaRaymond F. Sekula, Esquire 1725 Fifth Avenue Arnold, PA 15068 Re: Conflict; Public Official; School Directors; Use of Authority of Office or Confidential Information; Immediate Family; Spouse; Retired Teacher in School District; Collective Bargaining Agreement; Contract; Negotiate; Vote. Dear Mr. Sekula: ADVICE OF COUNSEL March 9, 2006 06 -525 This responds to your letters of January 26, 2006, and February 2, 2006, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., presents any prohibition or restrictions upon: (1) school directors with regard to participating in contract negotiations with representatives of bargaining units when their spouses are employed by the same school district and are part of different bargaining units within the School District; and (2) a school director who is a retired teacher with regard to participating in contract negotiations with the representative of the teachers bargaining unit. Facts: As Labor Counsel for the New Kensington - Arnold School District ( "School District ") located in the County of Westmoreland, you have been authorized by School Directors William Charlton ( "Charlton "), Jason Fularz ( "Fularz "), Jack Delk ( "Delk "), Martin Fabbraio ( "Fabbraio "), Lester Kemp ( "Kemp "), and Robert Sauro ( "Sauro ") to seek an advisory as to their prospective conduct. You have submitted facts, the material portions of which may be fairly summarized as follows. All non - exempt employees of the School District are members of one of three bargaining units certified by the Pennsylvania Labor Relations Board: the Teachers Unit, Clerical /Aide Unit, and Maintenance /Custodial Unit. The Teachers Unit and Clerical /Aide Unit are represented by the Pennsylvania State Education Association ( "PSEA "). The Maintenance /Custodial Unit is represented by the Service Employees International Union ( "SEIU "). All of the bargaining units at the School District attempt to negotiate to the highest wage percentage increase and benefits previously granted to a fellow bargaining unit. Thus, when the School District agrees to provide a new benefit to one Sekula /New Kensington- Arnold School Board, 06 -525 March 9, 2006 Page 2 of its bargaining units or when it agrees to a wage percentage increase with one of its units, the School District is well aware that such a benefit or wage percentage increase will be sought during labor negotiations with its other bargaining units. You state that it is your experience that such attempts are sometimes successful and other times not. You further state that the School District never enters into "piggyback" agreements with its bargaining units; that is, the School District never negotiates a contract provision that provides that if one bargaining unit receives a specific wage percentage increase or benefit, then one or all of the bargaining unit(s) will automatically receive the same increase or benefit. Thus, the School District's contract negotiations with one bargaining unit may impact upon its labor agreements with its other bargaining units. The School District has just begun contract negotiations with the Teachers Unit and the Maintenance /Custodial Unit. The Clerical /Aide Unit is currently not involved in contract negotiations with the School District. You state that to date, the only representatives of the School District who have been involved in contract negotiations have been you, the Superintendent, and District Manager. You further state that the contract demands of the Teachers Unit and the Maintenance /Custodial Unit have not been and will not be disclosed to the members of the School Board until guidance is received from the State Ethics Commission. You state that three of the nine members of the School Board clearly do not have a conflict of interest. As to the remaining six School Directors, you state as follows. Charlton, Febbraio, and Delk are married to members of the Clerical /Aide Unit, which is not currently involved in contract negotiations with the School District. Fularz is married to a member of the Teachers Unit. Kemp is married to a member of the Maintenance /Custodial Unit. Finally, Sauro is a former member of the Teachers Unit having been a teacher in the School District for thirty -two and one -half continuous years before retiring at the end of the 2004 -2005 school year. Sauro was a member of the PSEA during all of his years of employment with the School District. Based upon the foregoing facts, you pose the following specific inquiries. 1. Whether Charlton, Febbraio and Delk may participate to a full extent in contract negotiations with the Teachers Unit and Maintenance /Custodial Unit; 2. Whether Fularz may participate to a full extent in contract negotiations with the Maintenance /Custodial Unit; 3. Whether Kemp may participate to a full extent in contract negotiations with the Teachers Unit; and 4. Whether Sauro may participate to a full extent in contract negotiations with the Teachers Unit and the Maintenance /Custodial 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. As School Directors, Charlton, Fularz, Delk, Fabbraio, Kemp, and Sauro are public officials as that term is defined in the Ethics Act, and hence they are subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides: Sekula /New Kensington- Arnold School Board, 06 -525 March 9, 2006 Page 3 § 1103. 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 pertaining to conflicts of interest 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. 65 Pa.C.S. § 1102. 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. The use of authority of office is more than the mere mechanics of voting and encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order No. 809. Use of authority of office includes, but is not limited to, discussing, conferring with others, lobbying for a particular result, and voting. Section 1103(j) of the Ethics Act provides as follows: § 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 procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be Sekula /New Kensington- Arnold School Board, 06 -525 March 9, 2006 Page 4 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). If a conflict exists, Section 1103(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 Act, then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Pavlovic, Opinion 02 -005. In applying the above provisions of the Ethics Act to the circumstances that 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 a spouse is an "immediate family" member as that term is defined in the Ethics Act. As to the spouses of Charlton, Febbraio, Delk, Fularz, and Kemp, the seminal Commission decision that applies Section 1103(a) of the Ethics Act under facts similar to those that you have submitted is Van Rensler, Opinion No. 90 -017. In Van Rensler, the Commission discussed the class /subclass exclusion to the definition of "conflict" or "conflict of interest" in the context of school directors seeking to participate on the negotiating team and vote on a finalized collective bargaining agreement where members of their immediate families were school district employees represented by the bargaining units. The Commission held that the Ethics Act would preclude the participation of such school directors in the negotiation process, but that they could vote on the finalized agreement as lonq as the prerequisite criteria for applying the class /subclass exclusion were met. Based upon Van Rensler and other, more recent Commission precedents, two criteria must be met in order for the class /subclass exclusion to apply: (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 Sekula /New Kensington- Arnold School Board, 06 -525 March 9, 2006 Page 5 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; Graham, Opinion 95 -002 (citing Van Rensler, supra); 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. In response to your first question which asks whether Charlton, Febbraio and Delk may participate to a full extent in contract negotiations with the Teachers Unit and Maintenance /Custodial Unit, the instant case is factually distinguishable from Van Rensler, supra, in that their spouses, as members of the Clerical /Aide Unit, are not covered by either the Teachers Unit or the Maintenance /Custodial Unit. Given that the spouses of Charlton, Febbraio and Delk are not covered by the Teachers Unit or Maintenance /Custodial Unit, these three School Directors would be permitted to participate in negotiations and vote on the finalized contracts. The foregoing conclusion is conditioned upon the express assumptions that: (1) there would be no opportunity for the spouses of Charlton, Febbraio and Delk to pass on confidential information to the bargaining unit representatives of the Teachers Unit and Maintenance /Custodial Unit; and (2) there would be no reasonable and legitimate expectation that the Clerical /Aide Unit would receive the same wage percentage increase and benefits granted to the Teachers Unit and /or the Maintenance /Custodial Unit. See, Amato, Opinion 89 -002. In response to your second question which asks whether Fularz may participate to a full extent in contract negotiations with the Maintenance /Custodial Unit, this matter is also factually distinguishable from Van Rensler, supra, in that Fularz's spouse, as a member of the Teachers Unit, is not covered by the Maintenance /Custodial Unit. Given that the spouses of Fularz is not covered by the Maintenance /Custodial Unit, Fularz would be permitted to participate in negotiations and vote on the finalized contract. The foregoing conclusion is conditioned upon the express assumptions that: (1) there would be no opportunity for the spouse of Fularz to pass on confidential information to the bargaining unit representative of the Maintenance /Custodial Unit; and (2) there would be no reasonable and legitimate expectation that the Teachers Unit would receive the same wage percentage increase and benefits granted to the Maintenance /Custodial Unit. See, Amato, supra. In response to your third question which asks whether Kemp may participate to a full extent in contract negotiations with the Teachers Unit, as noted above, given that this case is distinguishable from Van Rensler, supra, in that Kemp's spouse, as a member of the Maintenance /Custodial Unit, is not covered by the Teacher's Unit. Given that the spouse of Kemp is not covered by the Teachers Unit, Kemp would be permitted to participate in negotiations and vote on the finalized contract. The foregoing conclusion is conditioned upon the express assumptions that: (1) there would be no opportunity for the spouse of Kemp to pass on confidential information to the bargaining unit representative of the Teachers Unit; and (2) there would be no reasonable and legitimate expectation that the Maintenance /Custodial Unit would receive the same wage percentage increase and benefits granted to the Teachers Unit. See, Amato, supra. In response to your fourth question which asks whether Sauro may participate to a full extent in contract negotiations with the Teachers Unit and the Maintenance /Custodial Unit, you are advised as follows. Under Section 1103(a) of the Ethics Act, Sauro would not be prohibited from participating in negotiations or voting on a final collective bargaining agreement as to the Teachers Unit given that he is a retired School District teacher, subject to the following qualification. It is expressly assumed that neither Sauro as a retired school teacher nor a member of his immediate family would financially benefit from the contract. Without the possibility of a private pecuniary Sekula /New Kensington- Arnold School Board, 06 -525 March 9, 2006 Page 6 benefit as noted above, Sauro would have no conflict under Section 1103(a) of the Ethics Act. Further, if Sauro as a retired teacher or a member of his immediate family would benefit from the contract, then it that instance, Sauro could not be part of the negotiation process but could vote upon the final ratification of the contract, provided the conditions outlined in the VanRensler Opinion above would be satisfied. With regard to Sauro participating in contract negotiations with the Maintenance /Custodial Unit, based upon the principles and subject to the qualifications fully set forth in response to your first, second, and third questions, Sauro would be permitted to participate in negotiations and vote on the finalized contract. This Advice is limited to addressing the applicability of Section 1103(a) of the Ethics Act. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public 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. 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. Specifically not addressed herein is the applicability of the Public School Code of 1949. Conclusion: As School Directors for the New Kensington - Arnold School District "School District "), William Charlton ( "Charlton "), Jason Fularz ( "Fularz "), Jack Delk "Delk "), Martin Fabbraio ("Fabbraio"), Lester Kemp ( "Kemp "), and Robert Sauro "Sauro ") are public officials subject to the provisions of the Public Official and mployee Ethics Act, Act 93 of 1998, Chapter 11 ( "Ethics Act "). A spouse is an "immediate family" member as that term is defined in the Ethics Act. Section 1103(a) of the Ethics Act would not restrict Charlton, Febbraio and Delk with regard to participating in negotiations with the bargaining unit representatives of the Teachers Unit and Maintenance /Custodial Unit conditioned upon the express assumptions that: (1) there would be no opportunity for the spouses of Charlton, Febbraio and Delk to pass on confidential information to the bargaining unit representatives of the Teachers Unit and Maintenance /Custodial Unit; and (2) there would be no reasonable and legitimate expectation that the Clerical /Aide Unit would receive the same wage percentage increase and benefits granted to the Teachers Unit and /or the Maintenance /Custodial Unit. Section 1103(a) of the Ethics Act would not restrict Fularz with regard to participating in negotiations with the bargaining unit representatives of the Maintenance /Custodial Unit conditioned upon the express assumptions that: (1) there would be no opportunity for the spouse of Fularz to pass on confidential information to the bargaining unit representative of the Maintenance /Custodial Unit; and (2) there would be no reasonable and legitimate expectation that the Teachers Unit would receive the same wage percentage increase and benefits granted to the Maintenance /Custodial Unit. Section 1103(a) of the Ethics Act would not restrict Kemp with regard to participating in negotiations with the bargaining unit representatives of the Teachers Unit conditioned upon the express assumptions that: (1) there would be no opportunity for the spouse of Kemp to pass on confidential information to the bargaining unit representative of the Teachers Unit; and (2) there would be no reasonable and legitimate expectation that the Maintenance /Custodial Unit would receive the same wage percentage increase and benefits granted to the Teachers Unit. Under Section 1103(a) of the Ethics Act, Sauro would not be prohibited from participating in negotiations or voting on a final collective bargaining agreement as to the Teachers Unit given that he is a retired School District teacher, subject to the following qualification. It Sekula /New Kensington- Arnold School Board, 06 -525 March 9, 2006 Page 7 is expressly assumed that neither Sauro as a retired school teacher nor a member of his immediate family would financially benefit from the contract. If Sauro as a retired teacher or a member of his immediate family would benefit from the contract, then in that instance, Sauro could not be part of the negotiation process but could vote upon the final ratification of the contract, provided the conditions outlined in the Van Rensler Opinion above would be satisfied. With regard to Sauro participating in contract negotiations with the Maintenance /Custodial Unit, based upon the principles and subject to the qualifications fully set forth in response to your first, second, and third questions, Sauro would be permitted to participate in negotiations and vote on the finalized contract. 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. 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