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HomeMy WebLinkAbout06-527 DirvonasThomas F. Dirvonas, Esquire 11 North Eighth Street Stroudsburg, PA 18360 Dear Mr. Dirvonas: ADVICE OF COUNSEL March 10, 2006 06 -527 Re: Conflict; Public Official /Employee; School Director; Use of Authority of Office or Confidential Information; Immediate Family; Spouse. This responds to your letter of February 3, 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 a school director whose spouse is a professional employee in the school district and also an officer /representative of the union or association that represents the professional staff in collective bargaining, with regard to participating on the negotiating committee that will negotiate a new contract with the school district's support staff representatives when the support staff and the professional staff are represented by the same state association or union. Facts: As Solicitor for the East Stroudsburg Area School District ( "School District "), you have been authorized by an unidentified School Director of the School District to seek an advisory as to his /her prospective conduct. You have submitted facts that may be fairly summarized as follows. The School Director's spouse is a professional employee of the School District and is also an officer /representative of the union or association that represents the professional staff in collective bargaining. The School Director has volunteered to be a member of the School Board's Negotiation Committee to meet with and negotiate a new contract with the School District's support staff representatives. In a telephone conversation with support staff of the Legal Division of the State Ethics Commission on March 9, 2006, you stated that the School Director's spouse would not be participating as a union officer /representative in the negotiations for the support staff contract. You state that although the same state association or union represents the support staff and professional staff, each association has a different contract, different benefits and different officers. You further state that while the contracts for each of the two bargaining units have historically included similar benefits (such as medical Dirvonas /East Stroudsburg Area School District, 06 -527 March 10, 2006 Page 2 coverage), there is no guarantee of similar benefits in the language of either contract as each contract is negotiated separately and normally at different times. You quote Section 1101.1801(a) of the Public Employee Relations Act as follows: No person who is a member of the same local, State, national or international organization as the employee organization with which the public employer is bargaining or who has an interest in the outcome of such bargaining which interest is in conflict with the interest of the public employer, shall participate on behalf of the public employer in the collective bargaining processes with the proviso that such person may, where entitled, vote on the ratification of an agreement. 43 P.S. § 1101.1801(a). The question you ask is whether the School Director would have an indirect pecuniary interest in the outcome of the negotiations with the support staff under the Public Employee Relations Act and the Ethics Act. You state your understanding that pursuant to Section 1103(a) of the Ethics Act, a School Director having an indirect pecuniary interest has a conflict of interest and should not be permitted to be involved in the collective bargaining process in any manner including participation in executive sessions of the Board in which negotiations are discussed. However, the School Director would have the right to vote on the ratification of any such agreement or contract after a tentative agreement is reached by the remaining School Directors. 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. It is further initially noted that the Commission, in the exercise of its jurisdiction, is limited to making determinations under the Ethics Act. In making such determinations, it is necessary at times to review other laws to determine whether a given benefit is authorized so that the Commission may conclude whether a public official /employee is receiving a private pecuniary benefit contrary to the Ethics Act. However, it is beyond the scope of the Ethics Act and the function of the Commission to make determinations as to other state laws, regulations or Constitutions. Accordingly, the scope of this advisory is necessarily limited to applying the Ethics Act to your inquiry. The School Director on behalf you seek this advisory would be considered a public official subject to the Ethics Act. Section 1103(a) of the Ethics Act provides: § 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). Dirvonas /East Stroudsburg Area School District, 06 -527 March 10, 2006 Page 3 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. 65 Pa. C. S. § 1102. 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 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 Dirvonas /East Stroudsburg Area School District, 06 -527 March 10, 2006 Page 4 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. The seminal Commission decision which applies Section 1103(a) under facts similar to those which you have submitted is Van Rensler, Opinion No. 90 -017. The issue in Van Rensler was whether the Ethics Act prohibited school directors from participating on a negotiating team and voting on a collective bargaining agreement where members of their immediate families were school district employees who were represented by the bargaining units. The Commission concluded that the Ethics Act would not restrict the school directors from voting on the finalized agreement, but that the school directors could not take part in the negotiations leading to the finalized agreement. The Commission held that the school 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 immediate family member is affected exactly as the other members of the subclass. The Commission held that as long as the 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 Act would preclude the participation of such school directors in the negotiation process. In so holding, the Commission noted that the negotiation process would be free of any influence of such a school director and that the potential for the use of confidential information would be "minimized if not eliminated ". Id, at 4 -5. Thus, a fundamental focus of the Van Rensler Opinion was precluding the use of confidential information obtained through the public office as school director to defeat the bargaining process. Mattie, Advice No. 91 -508, applied the Van Rensler principles to a situation where collective bargaining was taking place coincidentally with budget preparations. Per the submitted facts, some of the budgetary information which was to be provided to the school directors would show proposed changes for total salary and fringe benefits as well as categorized information regarding proposed increases or decreases in salaries. Furthermore, information was to be provided by the negotiating team to the administration which information would be used by the administration in preparing financial figures for the proposed budget. The Advice concluded that a school director Dirvonas /East Stroudsburg Area School District, 06 -527 March 10, 2006 Page 5 with such a conflict could receive general financial information for the proposed budget which information did not impact upon the negotiation process with the bargaining unit. However, such a school director could not receive any financial information related to the budget which would impact upon the negotiation process with the bargaining unit, including but not limited to line -by -line items such as salaries, or specific information from which one could deduce such line -by -line items. The school director could not receive information regarding the background of negotiations or the analysis of negotiations at any time. However, the School Director could have access to information once it became public. Having set forth the above principles, your specific inquiry shall now be addressed. In light of the fact that the School Director's spouse would not be participating as a union officer /representative in the negotiations for the support staff contract, the School Director 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 spouse of the School Director to pass on confidential information to the representatives of the union for the support staff; and (2) there would be no reasonable and legitimate expectation that the professional employees would receive the same wage percentage increase and benefits granted to the support staff employees. See, Amato, Opinion 89 -002. 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 and the Public Employee Relations Act. Conclusion: The School Director on whose behalf you have requested this advisory is a "public official" subject to the provisions of the Public Official and Employee 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. In response to the specific inquiry posed above, in light of the fact that the School Director's spouse would not be participating as a union officer /representative in the negotiations for the support staff contract, the School Director 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 spouse of the School Director to pass on confidential information to the representatives of the union for the support staff; and (2) there would be no reasonable and legitimate expectation that the professional employees would receive the same wage percentage increase and benefits granted to the support staff employees. 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. Dirvonas /East Stroudsburg Area School District, 06 -527 March 10, 2006 Page 6 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