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HomeMy WebLinkAbout06-600 NortonGary E. Norton, Esquire Law Offices of Derr, Pursel, Luschas & Norton, LLP 120 West Main Street P.O. Box 539 Bloomsburg, PA 17815 Dear Mr. Norton: ADVICE OF COUNSEL November 27, 2006 06 -600 This responds to your letters of October 20, 2006 and October 26, 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., would present any prohibition or restrictions upon a member of a joint operating committee for a vocational- technical school, whose spouse is not employed by the vocational - technical school but is employed as a teacher by one of the school districts participating in the vocational - technical school, with regard to serving on a negotiating committee for the vocational - technical school and voting on a collective bargaining agreement between the vocational - technical school and the bargaining unit for its professional employees. Facts: As Solicitor for the Columbia- Montour Area Vocational - Technical School ( "Vo -Tech School "), you request an advisory on behalf of Dan McGann ( "McGann "), who is a member of the Vo -Tech School's Joint Operating Committee ("JOC"). The Vo -Tech School represents a consortium of seven participating school districts, each of which has two seats on the JOC. The JOC essentially serves as the school board for the Vo -Tech School. McGann is a JOC Member from the Berwick Area School District. In his capacity as a JOC Member, McGann has been elected to the negotiating committee, which has the primary role of negotiating a collective bargaining agreement with the professional employees of the Vo -Tech School. McGann's spouse is not employed by the Vo -Tech School and is not a member of that professional bargaining unit, but she is a teacher within the Berwick Area School District and is a member of the teachers' union and teachers' bargaining unit for that school district. You ask whether McGann would transgress the Ethics Act by serving on the negotiating committee for the JOC and voting as a JOC Member with respect to the final collective bargaining agreement between the Vo -Tech School and its teachers' union. Norton /Gann, 06 -600 November 27, 2006 Page 2 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 a Member of the Joint Operating Committee for the Vo -Tech School, McGann is a public official as that term is defined in the Ethics Act, and hence he is subject to the provisions of that 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). 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. Norton /Gann, 06 -600 November 27, 2006 Page 3 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 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 submitted facts, 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, McGann's spouse is a member of his "immediate family" as that term is defined in the Ethics Act. The seminal Commission decision that applies Section 1103(a) under facts similar to those that you have submitted is Van Rensler, Opinion 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. Norton /Gann, 06 -600 November 27, 2006 Page 4 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. The instant case is factually distinguishable from Van Rensler, supra, in that McGann's spouse is not employed by the Vo -Tech School and is not a member of the bargaining unit involved in contract negotiations with the JOC for the Vo -Tech School. Based upon the submitted facts that McGann's spouse would not financially benefit from the finalized collective bargaining agreement between the Vo -Tech School and the bargaining unit for its professional employees, you are advised that the Ethics Act would not prohibit McGann from serving on the negotiating committee for the JOC and voting as a JOC Member on the finalized collective bargaining agreement between the Vo- Tech School and the bargaining unit for its professional employees. 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. Conclusion: As a Member of the Joint Operating Committee ( "JOC ") for the Columbia- Montour Area Vocational - Technical School ( "Vo -Tech School "), Dan McGann ("McGann ") is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. The Vo -Tech School represents a consortium of seven school districts, one of which is the Berwick Area School District. McGann's spouse, who is not employed with the Vo -Tech School but is a teacher within the Berwick Area School District and a member of the teachers' union and teachers' bargaining unit for that school district, is a member of his "immediate family" as that term is defined in the Ethics Act. Based upon the submitted facts that McGann's spouse would not financially benefit from the finalized collective bargaining agreement between the Vo -Tech School and the professional bargaining unit for the Vo- Tech School's professional employees, Section 1103(a) of the Ethics Act would not prohibit McGann from serving on the negotiating committee for the JOC and voting as a JOC Member on the finalized collective bargaining agreement between the Vo -Tech School and the bargaining unit for its professional employees. Norton /Gann, 06 -600 November 27, 2006 Page 5 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 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. Sincerely, Vincent J. Dopko Chief Counsel