Conflict of Interest in Collective Bargaining
Benjamin L. Pratt
On December 4, 2008 the Pennsylvania Ethics Commission rendered two opinions which impact public officials’ participation in the labor negotiation process. The two new opinions, Davidson, Opinion 08-006 and Fox, Opinion 08-008, have come out in which the Ethics Commission addressed the application of this “class/sub-class exclusion” under 65 Pa. C.S. §1102 of the Ethics Act.
Under the Act, ordinarily, public officials/employees are prohibited from using the authority of his/her office to gain confidential information for the private financial interest of his/her immediate family. If the benefit is de minimis or if it meets the class/sub-class exclusion to the general rule, it does not apply. The Commission now has ruled that for a board member to meet the class/sub-class exclusion under the Ethics Act and be able to participate in the collective bargaining process, the public official must be able to show:
1. The class effected by the activity of the public official/employee is either the general public or a sub-class of more than one person (even if it includes the public official, employee, immediate family members or businesses with which the official/employee or immediate family is associated); and
2. The class or sub-class members are all affected to the same degree, i.e., the public official/employee, immediate family member or businesses with which the official/employee or immediate family members associated is not treated different from the class or sub-class.
From the point of view of the Ethics Act, the Commission determined that participation in collective bargaining will generally meet the class/sub-class exclusion because most of the time the immediate family member is in a group which includes one or more person and those individuals are affected to the same degree with the terms of the collective bargaining agreement. There would be no individualized benefit to the immediate family member based on their affiliation with the bargaining unit.
The Commission did not render an opinion as to the meaning of conflict of interest provisions of PERA 43 P.S §1101.1801 and that term therefore should be interpreted the same as in the past. The conflict of interest clause under PERA reads:
a. 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 process with the proviso that such person may, where entitled, vote on the ratification of an agreement.
b. Any person who violates subsection (a) of this section shall be immediately removed by the public employer from his role, if any, in the collective bargaining negations or in any matter in connection with such negotiations.
There is no provision in PERA regarding the Ethics Commissions classification of a“class/subclass” which would permit an individual restricted under PERA to participate in the collective bargaining.
Should you have any questions in regard to conflict of interest and board members’ involvement in negotiations, please do not hesitate to contact CGA Law Firm’s Labor and Employment Law Department.
