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HomeMy WebLinkAbout18-533 ShimkoPHONE: 717 -783 -1610 TOLL FREE: 1 -800- 932 -0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120 -0400 ADVICE OF COUNSEL May 18, 2018 To the Requester: Mr. William F. Shimko, Esquire Dear Mr. Shimko: FACSIMILE: 717 -787 -0806 WEBSITE: www.ethics.oa.00v 18 -533 This responds to your letter dated May 2, 2018, by which you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission "). Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act' 65 Pa.C.S. § 1101 et se g., would impose prohibitions or restrictions upon any of` two Members of the Bora_ of Jefferson Hills ( "Borough ") Planning Commission ("Borough Planning Commission "� or two Members of Borough Council with regard to participating in their official capacities in matters pertaining to and/or potentially affecting a corporation named 'AUUE, Inc. "�'e'alth AUUE'), the University of Pittsburgh Medical Center ( "UPMC" , or the Allegheny Network - Jefferson Hospital ("AH N -Jefferson Hospital "), including subdivision plans, land development plans, or a comprehensive zoning ordinance /map amendment and rezoning process, where: 1) one of the two Borough Planning Commission Members works at a UPMC hospital in his capacity as an employee of a non - profit organization named "University of Pittsburgh Physicians" ( UPP`) and has UPMC - related health insurance with UPMC Health Plan; (2) the other of the two Borough Planning Commission Members works at AHN - Jefferson Hospital in his capacity as an employee of an independent entity named "South Pittsburgh Anesthesia'; (3), one of the two Borough Council Members has Allegheny Health Network C 'AHN' )- related health insurance with Highmark; and (4) the other of the two Borough Council Members has UPMC - related health insurance with UPMC Health Plan, and the wife of the Borough Council Member works at a UPMC hospital in her capacity as an employee of UPP. Facts: You have been authorized by Christopher King ( "Mr. King "), James Weber �VVeber ") Derek Reckard ("Mr. Reckard ") ' and Christopher Hynes ( "Mr. Hynes") to request an advisory from.the Commission on their behalf. You -have submitted facts that may be fairly summarized as follows. Mr. King is a Member and President of Borough Council. Mr. Weber is a Member and Vice President of Borough Council. Borough Council consists of seven Members. You state that pursuant to the Borough Code, four Members of Borough Council constitute a quorum. Mr. Reckard is a Member and Vice Chairman of the Borough Planning Commission. Mr. Hynes is a Member and Secretary of the Borough Planning Commission. The Borough Planning Commission consists of nine Members who are appointed by Borough Council. You state that pursuant to Robert's Rules of Order, five Shlmko, 18 -533 May 18, 2018 Page 2 Members of the Borough Planning Commission constitute a quorum. The Borough Planning Commission currently has three vacancies. It is administratively noted that the Borough Planning Commission has powers and duties as set forth in the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq., and Chapter 27, Section 1401 of the Borough of Jefferson Hills Code of Ordinances. The Borough Planning Commission is purely advisory. In pertinent part, the Borough Planning Commission reviews and makes recommendations to Borough Council with regard to subdivision and land development plans and also makes recommendations to Borough Council concerning amendments to the Borough Zoning Ordinance and Map. Borough Council is the governing body that approves such subdivision and land development plans as well as any amendments to the Borough Zoning Ordinance or Map. AUUE is an entity of /related to UPMC. A preliminary subdivision plan pertaining to AUUEIUPMC property ( "the "AUUEIUPMC Subdivision Plan ") is currently before the Borough Planning Commission for recommendation to Borough Council. Property involved in the AUUEIUPMC Subdivision Plan might be the site of a new UPMC medical facility. It is anticipated that a final subdivision plan and preliminary and final land development plans would be submitted to the Borough if the AUUEIUPMC Subdivision Plan would be approved by Borough Council. AHN- Jefferson Hospital is a hospital of AHN. AHN - Jefferson Hospital currently has a preliminary land development plan (the "AHN- Jefferson Hospital Preliminary Plan ") for an emergency room expansion -ending before the Borough Planning Commission for recommendation to Borough Council. It is anticipated that a final land development plan would be submitted to the Borough if the AHN- Jefferson Hospital Preliminary Plan would be approved by Borough Council. The Borough is in the midst of a comprehensive zoning ordinance /map amendment and rezoning process (the "Amendment/Rezonmg Process ") that includes proposed changes to the Borough Zoning Ordinance and Map being developed by the Borough Planning Commission for recommendation to Borough Council. The Amendment/Rezoning Process may involve changes that could affect the AUUEIUPMC Subdivision Plan, AUUEIUPMC property(ies), the AHN - Jefferson Hospital Preliminary Plan, or AHN - Jefferson Hospital property(ies). UPP is a non- 1profit organization that employs certain people who work at UPMC facilities. Mr. Webers wife is an employee of UPP, in which capacity she works as a Certified Nurse Practitioner at UPMC Magee Women's Hospital. Mr. Reckard is employed as a Certified Registered Nurse Anesthetist with UPP, in which capacity he works at UPMC Presbyterian Hospital. An independent entity named "South Pittsburgh Anesthesia" is a contractor that provides certified registered nurse anesthetist services at AHN - Jefferson Hospital. Mr. Hynes is employed with South Pittsburgh Anesthesia, in which capacity he works as a Certified Nurse Anesthetist at AHN - Jefferson Hospital. Mr. King has AHN - related health insurance with Highmark. Mr. Weber and Mr. Reckard have UPMC- related health insurance with UPMC Health Plan. Based upon the above submitted facts, you pose the following four sets of questions: As to Mr. Reckard: (1) Whether Mr. Reckard would have a conflict of interest with regard to participating in deliberations and actions of the Borough Planning Shimko, 18 -533 May 18, 2018 Page 3 Commission involving the AUUEIUPMC Subdivision Plan or other AUUEIUPMC subdivision or land development plan(s); (2) Whether Mr. Reckard would have a conflict of interest with re and to participating in deliberations and actions of the Borough Planning Commission involvin the Amendment/Rezoning Process and its potential effect(s) on AUUEIUPMC property(ies); and (3) Whether Mr. Reckard would be permitted to vote despite a conflict of interest if his vote would be necessary to reach a quorum or make the majority or other legally required vote of approval attainable. As to Mr. Hynes: (1) Whether Mr. Hynes would have a conflict of interest with regard to participating in deliberations and actions of the Borough Planning Commission involving the AHN - Jefferson Hospital Preliminary Plan or other AHN - Jefferson Hospital land development plan(s); (2) Whether Mr. Hynes would have a conflict of interest with regard to participating in deliberations and actions of the Borough Planning Commission involving the Amend ment/Rezonin Process and its potential effect(s) on AHN - Jefferson Hospital property(ies); and (3) Whether Mr. Hynes would be permitted to vote despite a conflict of interest if his vote would be necessary to reach a quorum or make the majority or other legally required vote of approval attainable. As to Mr. Kinq: (1) Whether Mr. King would have a conflict of interest with regard to participating in deliberations and actions of Borough Council involving the AHN -- Jefferson Preliminary Plan or other AHN - Jefferson Hospital land development plan(s); (2) Whether Mr. King would have a conflict of interest with regard to participating in deliberations and actions of Borough Council involving the Amendment/Rezoning Process and its potential effect(s) on AHN - Jefferson Hospital property(ies); and (3) Whether Mr. King would be permitted to vote despite a conflict of interest if his vote would be necessary to reach a quorum or make the majority or other legally required vote of approval attainable. As to Mr. Weber: (1) Whether Mr. Weber would have a conflict of interest with regard to participating in deliberations and actions of Borough Council involving the AUUEIUPMC Subdivision Plan or other AUUEIUPMC subdivision or land development plan(s); (2) Whether Mr. Weber would have a conflict of interest with regard to participating in deliberations and actions of Borough Council involving the Amendment/Rezoning Process and its potential effect(s) on AUUEIUPMC property(ies); and (3) Whether Mr. Weber would be permitted to vote despite a conflict of interest if his vote would be necessary to reach a quorum or make the majority or other legally required vote of approval attainable. Shimko, 18 -533 te$, 2018 Page 4 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. §& 11Q7(10), (11 ). An advisory only affords a defense to the extent the requester has trot fully discllosed all of the material facts. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice ma be given only as to prospective (future) conduct. To the extent that our inquiry rela es to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. With Respect to Mr. Reckard and Mr. Hynes: The threshold question to be addressed is whether Mr. Reckard and Mr. Hynes, in their capacity as Members of the Borough Planning Commission, are public officials subject to the provisions of the Ethics Act. The Ethics Act defines the term "public official" as follows: § 1102. Definitions "Public official." Any person elected by the public or elected or appointed by a governmental body or an appointed official in the executive, legislative or judicial branch of this Commonwealth or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. 65 Pa.C.S. § 1102. In applying the Ethics Act's definition of the term "public official," the first portion of the definition provides that a public official is a person who: (1) is elected by the public; (2) is elected or appointed by a governmental body; or (3) is an appointed official in the executive, legislative, or judicial branch of the Commonwealth or a political subdivision of the Commonwealth. Muscalus, Opinion 02 -007. The fact that Members of the Borough Planning Commission are appointed by Borough Council satisfies the first portion of the definition. In considering� the remainder of the definition, the necessary conclusion is that Mr. Reckard and Mr. Hynes would fall within the statutory exclusion for members of purely advisory boards lacking authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. In considering the duties and responsibilities of the Borough Planning Commission as delineated by the Pennsylvania Municipalities Planning Code, 53 P.S. 10101 et seg.., and Chapter 27, Section 1401 of the Borough of Jefferson Hills Code o f Ordinances, it is clear that the Borough Planning Commission is a purely advisory board. Therefore, Mr. Reckard and Mr. Hynes, in their capacity as Members of the Borough Planning Commission, are not "public officials" subject to the Ethics Act. Thus, Shimko, 18 -533 any $, 2018 Page 5 they are not subject to the restrictions of Section 1103(a) of the Ethics Act (pertaining to conflict of interest). In response to your specific questions regarding Mr. Reckard and Mr. Hynes, you are advised that Section 1103(a) of the Ethics Act — which does not apply to them — would not prohibit: (1) Mr. Reckard from participating in deliberations and actions of the Borough Planning Commission involving the AUUEIUPMC Subdivision Plan, other AUUEIUPMC subdivision or land development plan(s), or the Amendment/Rezoning Process and its potential effect(s) on AUUpEIUPMC property(ies); or (2) Mr. Hynes from participating in deliberations and actions of the Borough Planning Commission involving the AHN- Jefferson Hospital Preliminary Plan, other AHN-- Jefferson Hospital land development plan(s), or the Amendment/Rezoning Process and its potential effect(s) on AHN- Jefferson Hospital property(ies). With Respect to Mr. King and Mr. Weber: As Borough Council Members, Mr. King and Mr. Weber are public officials subject to the provisions of the Ethics Act. Sections 1103(a) and 11030) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 0) 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 pprovided 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(a), (j). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions Shimko, 18 -533 a17f y 16 2018 Page 6 "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 industrryy, 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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business wit h business in which the immediate family is a has a financial interest. 65 Pa.C.S. § 1102. which he is associated." Any person or a member of the person's director, officer, owner, employee or Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public officelemployment 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 each instance of a conflict of interest, the public officiallpublic employee would be required to abstain from participation. The abstention requirement would not be limited merely to voting, but would extend to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting conflict, Section 11030) of the Ethics Act would require the public official/public 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. In applying the above provisions of the Ethics Act to your questions involving Mr. King and Mr. Weber, you are advised as follows. As to Mr. King: Shimko 18 -533 May_9, 2018 Page 7 Mr. King's AHN- related health insurance with Highmark would not in and of itself form the basis of a conflict of interest for Mr. King in matters before Borough Council that would financially impact AHN - Jefferson Hospital. You are advised that absent some basis for a conflict of interest such as a private pecuniary benefit to Mr. King, a member of his immediate family, or a business with which he or a member of his immediate family is associated, Mr. King would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in deliberations and actions of Borough Council involving the AHN - Jefferson Hospital Preliminary Plan, other AHN - Jefferson Hospital land development plan(s), or the Amendment/Rezoning Process and its potential effect(s) on AHN- Jefferson Hospital property(ies). As to Mr. Weber: Mr. Weber's wife is a member of his "immediate family" as that term is defined in the Ethics Act. UPP is a business with which Mr. Weber's wife is associated in her capacity as an employee. Under the submitted facts, UPMC is not a business with which Mr. Weber's wife is associated. Mr. Weber's UPMC - related health insurance with UPMC Health Plan would not in and of itself form the basis of a conflict of interest for Mr. Weber in matters before Borough Council that would financially impact AUUEIUPMC. You are advised that absent some basis for a conflict of interest such as a private pecuniary benefit to Mr. Weber, a member of his immediate family such as his wife, or a business with which Mr. Weber or a member of his immediate family is associated such as UPP, Mr. Weber would not have a conflict of interest under Section 1103(x) of the Ethics Act with regard to participating in deliberations and actions of Borough Council involving the AUUEIUPMC Subdivision Plan, other AUUEIUPMC subdivision or land development plan(s), or the Amendment/Rezoning Process and its potential effect(s) on AUUEIUPMC property(ies). Regarding Both Mr. King and Mr. Weber: In each instance of a conflict of interest, the Borough Council Member(s) with the conflict of interest would be required to abstain from participation, which would include voting unless a voting conflict exception of Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. Section 11030) of the Ethics Act contains two voting conflict exceptions. The voting conflict exception for breaking a tie vote despite a conflict of interest is available exclusively to members of three- member governing bodies who first abstain and disclose their conflicts as required by ecbon 11030) of the Ethics Act. See, Pavlovic, Opinion 02 -005. The only voting conflict exception that enables a member of a seven - member board such as Borough Council to vote despite a conflict of interest requires that the following conditions be met: (1) the board must be unable to take any action on the matter before it because the number of members required. to abstain from votin under the provisions of the Ethics Act makes the maiority or other legally required vote of approval unattainable; an 2) prior to voting, such members with conflicts under the Ethics Act must disclose their conflicts as required by Section 11030). When both of these conditions are met, such that the exception is applicable, the exception allows for voting onlit does not permit other forms of participation, such as discussing the matter that—is is the subject of the vote. Pavlovic, supra. Therefore, pursuant to Sections 1103(x) and 11030) of the Ethics Act, the Borough Council Member(s) with a conflict of interest with regard to certain matter(s) would not be permitted to vote on such matter(s) unless so many Members of Borough Shimko 18 -533 ally $, 2018 Page 8 Council would have conflicts of interest under the Ethics Act as to such matter(s) that there would not be enough non - conflicted Members left to take action. 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 Borough Code. Conclusion: Based upon the submitted and administratively noted facts that: (1) Christopher Kin { "Mr. King ") is a Member and President of Council for the Borough of Jefferson Hills "Borough "); (2) James Weber ( "Mr. Weber ") is a Member and Vice President of Borough Council; (3) Borough Council consists of seven Members; (4) pursuant to the Borough Code, four Members of Borough Council constitute a quorum; (5) Derek Reckard ( "Mr. Reckard ") is a Member and Vice Chairman of the Borough Planning Commission; (6 Christopher Hynes ( "Mr. Hynes ") is a Member and Secretary of the Borough Planning Commission; (7) the Borough Planning Commission consists of nine Members who are appointed by Borough Council; (8) pursuant to Robert's Rules of Order, five Members of the Borough Planning Commission constitute a quorum; (9) the Borough Planning Commission currently has three vacancies; (10) the Borough Planning Commission has powers and duties as set forth in the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq., and Chapter 27, Section 1401 of the Borough of Jefferson Hills Code of Ordinances; (11) the Borough Planning Commission is purely advisory; (12) in pertinent part, the Borough Planning Commission reviews and makes recommendations to Borough Council with regard to subdivision and land development plans and also makes recommendations to Borough Council concerning amendments to the Borough Zoning Ordinance and Map; (13) Borough Council is the governing body that approves such subdivision and land development plans' as well as anx amendments to the Borough Zoning Ordinance or Map; (114) a corporation named 'AUUE, Inc." ( "AUUE ") is an entity of /related to the University of Pittsburgh Medical Center ( "UPMC "); (15) a preliminary subdivision plan pertaining to AUUEIUPMC property ( "the "AUUE/ PM Subdivision Plan ") is currentl before the Borough Planning Commission for recommendation to Borough Council; (16W property involved in the AUUEIUPMC Subdivision Plan might be the site of a new UPMC medical facility; (17) it is anticipated that a final subdivision plan and preliminary and final land development plans would be submitted to the Borough if the AUUEIUPMC Subdivision Plan would be approved by Borough Council; (18) the Allegheny Health Network - Jefferson Hospital (`AHN- Jefferson Hospital ") is a hospital of the Allegheny Health Network ( "AHN "); Q-Jefferson AHN - Jefferson Hospital currently has a preliminary land development plan (the " Hospital Preliminary Plan ") for an emergency room expansion pending before the Borough Planning Commission for recommendation to Borough Council; (20) it is anticipated that a final land development plan would be submitted to the Borough if the AHN - Jefferson Hospital Preliminary Plan would be approved by Borough Council; (21) the Borough is in the midst of a comprehensive zoning ordinance /map amendment and rezoning process (the "Amendment/Rezoning Process ") that includes proposed changes to the Borough Zoning Ordinance and Map being developed by the Borough Planning Commission for recommendation to Borough Council; (22) the Amendment/Rezoning Process may involve changes that could affect the AUUEIUPMC Subdivision Plan, AUUEIUPMC property ies , the AHN - Jefferson Hospital Preliminary Plan, or AHN - Jefferson Hospital NOWtykies); (23) a non - profit organization named "University of Pittsburgh Physicians" ') employs certain people who work at UPMC facilities; (24) Mr. Weber s wife is an employee of UPP, in which capacity she works as a Certified Nurse Practitioner at UPMC Magee Women's Hospital; (25) Mr. Reckard is employed as a Certified Registered Nurse Anesthetist with UPP, in which capacity he works at UPMC Presbyterian Hospital; (26) an independent entity named "South Pittsburgh Anesthesia" is a contractor that provides certified registered nurse anesthetist services at AHN - Jefferson Hospital; (27) Mr. Hynes is employed with South Pittsburgh Anesthesia, in which capacity he works as. a Certified Nurse Anesthetist at AHN - Jefferson Hospital; Shimko 18 -533 May 8, 2018 Page 9 (28) Mr. King has AHN- related health insurance with Highmark; and (29) Mr. Weber and r. Reckard have UPMC - related health insurance with UPMC Health Plan, you are advised as follows. With Respect to Mr. Reckard and Mr. Hynes: Mr. Reckard and Mr. Hynes, in their capacity as Members of the Borough Planning Commission, are not "public officials" subject to the Public Official and Employee Ethics Act ( "Ethics Act'), 65 Pa.C.S. § 1101 et sec. Thus, they are not subject to the restrictions of Section 1103(a) of the Ethics Act (pertaining to conflict of interest). Section 1103(a) of the Ethics Act — which does not apply to Mr. Reckard or Mr. Hynes -- would not prohibit: (1) Mr. Reckard from participatingg m deliberations and actions of the Borough Planning Commission involvingg the AUUEIUPMC Subdivision Plan, other AUUEIUPMC subdivision or land development plan(s), or the Amendment/Rezoning Process and its potential effect(s) on AUUEIUPMC property(ies); or (2) Mr. Hynes from participating in deliberations and actions of the Borough Planningg Commission involving the AHN - Jefferson Hospital Preliminary Plan, other AHN - Jefferson Hosppital land development plan(s): or the Amendment/Rezoning Process and its potential effects) on AHN - Jefferson Hospital property(ies). With Respect to Mr. King and Mr. Weber: As Borough Council Members, Mr. King and Mr. Weber are public officials subject to the provisions of the Ethics Act. As to Mr. King: Mr. King's AHN - related health insurance with Highmark would not in and of itself form the basis of a conflict of interest for Mr. King in matters before Borough Council that would financially impact AHN - Jefferson Hospital. Absent some basis for a conflict of interest such as a private pecuniary benefit to Mr. King, a member of his immediate family, or a business with which he or a member of his immediate family is associated, Mr. King would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in deliberations and actions of Borough Council involving the AHN - Jefferson Hospital Preliminary Plan, other AHN - Jefferson Hospital land development plan(s), or the Amendment/Rezoning Process and its potential effect(s) on AHN - Jefferson Hospital property(ies). As to Mr. Weber: Mr. Weber's wife is a member of his "immediate family" as that term is defined in the Ethics Act. UPP is a business with which Mr. Weber's wife is associated in her capacity as an employee. Under the submitted facts, UPMC is not a business with which Mr. Weber's wife is associated. Mr. Weber's UPMC - related health insurance with UPMC Health Plan would not in and of itself form the basis of a conflict of interest for Mr. Weber in matters before Borough Council that would financially impact AUUEIUPMC. Absent some basis for a conflict of interest such as a private pecuniary benefit to Mr. Weber, a member of his immediate family such as his wife, or a business with which Mr. Weber or a member of his immediate family is associated such as UPP, Mr. Weber would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participatin in deliberations and actions of Borough Council involving the AUUEIUPMC Subdivision Plan, other AUUEIUPMC subdivision or land development Shimko, 18 -533 al0[�$, 2018 Page 10 plan(s), or the Amendment/Rezoning Process and its potential effect(s) on AUUEIUPMC property(ies). Regarding Both Mr. King and Mr. Weber: In each instance of a conflict of interest, the Borough Council Member(s) with the conflict of interest would be required to abstain from participation, which would include voting unless a voting conflict exception of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. The only voting conflict exception that enables a member of a seven - member board such as Borough Council to vote despite a conflict of interest requires that the following conditions be met: (1) the board must be unable to take any action on the matter before it because the number of members re uired to abstain from votinq under the provisions of the Et ics Act makes the majority or other lecially re uired vote of approval unattai- e; and (2) prior to voting, such members with con licts under the Ethics Act must disclose their conflicts as required by Section 11030). When both of these conditions are met, such that the exception is applicable, the exception allows for voting only —it does not permit other forms of participation, such as discussing the matter that is the subject of the vote. Therefore, pursuant to Sections 1103(a) and 11036) of the Ethics Act, the Borough Council Member(s) with a conflict of interest with regard to certain matter(s) would not be permitted to vote on such matter(s) unless so many Members of Borough Council would have conflicts of interest under the Ethics Act as to such matter(s) that there would not be enough non -con Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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 actual! received at the Commission within thirty (30) days of the date oofi this vice 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. Eldittie Chief Counsel