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HomeMy WebLinkAbout87-506 DonehowerRobert W. Donehower, Chairman Union County Commissioners Courthouse Lewisburg, PA 17837 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 January 15, 1987 ADVICE OF COUNSEL 87 -506 Re: County Commissioner, Participation, Business with which Associated Dear Mr. Donehower: This responds to your letter of December 29, 1986, wherein you requested the advice of the State Ethics Commission. Issue: Whether the Ethics Act places any prohibition upon a county commissioner's participation in a matter involving a company with which that commissioner is involved. Facts: You advise that you currently serve as a member of the Union County Board of Commissioners. In this capacity, you are Chairman of the Board of Commissioners. You advise that the county currently is considering two health plans to supply benefits to county employees. One of the programs, which is currently under consideration, involves the Capitol Blue Cross and the Pennsylvania Blue Shield Plans, both of which have been in place over the past several years. You advise that currently Inter - County of Horshorn, Pennsylvania, is presenting an alternate to the Blue Cross /Blue Shield Plans. This will result in a vote, at some point in time, by the county board of commissioners. You advise that you are affiliated with Capitol Blue Cross Corporation. In this respect, you serve as a member of that company's Comsumer Advisory Council. You have so served since 1972. You also advise that you have served a term of three consecutive years as chairman of the Consumer Advisory Council and as an ex- officio member of the coporate Board of Directors for the company. You advise further that you have voting rights on issues that come before the Board of Directors. Your term of office, as chairman of the Consumer Advisory Council expired and, with it, your position as a member of the Board of Directors. You currently continue to serve as a member of the Capitol Blue Cross Consumer Advisory Council. You have requested the advice of the State Ethics Commission regarding whether the Ethics Act places any prohibitions upon your conduct as a county commissioner in relation to the aoove issue. Robert W. Donehower, Chairman January 15, 1987 Page 2 Discussion: As a county commissioner, there is no doubt that you are a public official as that term is defined in the State Ethics Act. 65 P.S. §402. As such, your conduct must conform to the requirements of that law. Steinman, 84 -006. Generally, the Ethics Act provides as follows: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Within the above provision of law, no public official may use his public position in order to obtain a financial gain for a business with which he is associated. The Act defines business with which one is associated as follows: Section 2. Definitions. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or holder of stock. 65 P.S. 402. Within the above definition, a public official may not use confidential information for similar purposes. As a member of the Capitol Blue Cross Consumer Advisory Council, you are associated with that company within the purview of the above law. In addition, your prior service as a member of the Board of Directors, with voting rights, similarly qualified you as associated with that business. As such, you would be precluded from participating as a county official in any matter relating to the business with which you are associated. This is so particularly in light of the fact that a vote by the county commissioners, on this matter, would result in the obtaining of a financial gain by that business. In addition to the foregoing, the State Ethics Act also provides this Commission with the authority to address other areas of possible conflict. 65 P.S. §403(d). The parameters of the types of activities encompassed by this provision of law, are generally outlined through a review of the scope and intent of the State Ethics Act. The State Ethics Act was promulgated in order to insure the public that the interest of their public officials do not conflict with the public trust. 65 P.S. §401. A conflict of interest can develop in any occasion wherein an individual attempts to serve one or more interest that are adverse. Thus, in the instant situation, even if we did not determine that you were associated with Capitol Blue Cross within the provisions of Section 3(a) of the State Ethics Act, there is no doubt that this situation presents a conflict of interest within Robert W. Donehower, Chairman January 15, 1987 Page 3 Section 403(d) of the State Ethics Act. Specifically, as a member of the county board of commissioners, you are entrusted with the public's interest. In this respect, you must act in the best interest of the county and make your decisions based upon what is best for the citizens of the county. On the otherhand, as a member of the Capitol Blue Cross Consumer Advisory Council, we assume that you are responsible for advising that corporation as to how to better serve its clients. Your advice, in that respect, would be to the benefit of the corporation and the corporate client. On the one hand, you would be responsible for advising the company and looking after the best interests of that organization while, on the other hand, you would be responsible for insuring that the interests of the public are best served in your county position. There is no doubt that this would create the type of conflict of interest that would require your abstention from participating in such matters. This rationale is in line with previous Commission decisions. In Stewart, 79 -070, this Commission ruled that county commissioners could not vote on matters of a non - routine matter involving the payment of bills to insurance companies with which they were associated. As such, and in accordance with past Commission precedent, you are advised that you should abstain from participating in any county matter relating to the award of the health benefit program to Capitol Blue Cross Corporation. Your abstention, in this matter, should be publicly noted and appropriately recorded in county minutes. Conclusion: As a county commissioner, you are a public official and subject to the purview of the State Ethics Act. You must abstain from all county decisions relating to the award of a contract by the county to the Capitol Blue Cross Corporation. Your abstention, in this matter, must be publicly noted and appropriately recorded. Pursuant to Section 7(9)(ii), this 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, providing 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Sin - .ely Cont no ral Counsel