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HomeMy WebLinkAbout18-533-S ShimkoPHONE: 717- 783 -1610 TOLL FREE: 1 -800- 932 -0936 Sn.. STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120 -0400 ADVICE OF COUNSEL June 12, 2018 To the Requester. Mr. William F. Shimko, Esquire Dear Mr. Shimko: FACSIMILE: 717- 787 -0806 WEBSITE: www.eth!Gs.pa.gov 18 -533 -S This responds to your letter dated May 22, 2018, by which you requested supplemental advice from the Pennsylvania State Ethics Commission ("Commission"). Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 p�S. §'1101 et s er sag., would impose prohibitions or restrictions upon eith off two Members of the Borou h of Jefferson Hills ( "Borough ") Planning Commission ( "Borough Planning Commission ") with regard to participating in their official capacities in matters ertaining to and /or potentially affecting a corporation named "AUUE, Inc." ( "AUUE "), .he University of Pittsburgh Medical Center (`.UPMC "), or the Allegheny Health Network - Jefferson Hospital ( "AHN- 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; and (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." Facts: By letter dated May 2, 2018, you submitted an initial request for an al vl-ssory from the Commission on behalf of four individuals, including, in pertinent part, Derek Reckard ( "Mr. Reckard ") and Christopher Hynes ( "Mr. Hynes'): In response to your initial advisory request, Shimko, Advice of Counsel 18 -533, was issued to you on May 18, 2018. Advice of Counsel 18 -533 was based upon submitted facts that were summarized, in pertinent part, as follows: 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 Members of the Borough Planning Commission constitute a quorum. The Borough Planning Commission currently has three vacancies. Shimko, 18 -533 -S uTne-, 2018 Page 2 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. Proppertyy involved in the AUUEIUPMC Subdivision Plan might be 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 pending 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/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. 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 - profit organization that employs certain people who work at UPMC facilities.... 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. Hyynes is employed with South Pittsburgh Anesthesia, in which capacity he works as a Certified Nurse Anesthetist at Shimko, 18 -533 -S M , 2018 Page 3 AHN- Jefferson Hospital.... Mr. Reckard [has] UPMC - related health insurance with UPMC Health Plan. Based upon the above submitted facts, you pose the following ... 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 Borouggh Planningg Commission involving tFie AUUEIUPMC Subdivision Plan or other AUUEIUPMC subdivision or land development plan(s); (2) Whether Mr. Reckard would have a conflict of interest with regard to participating in deliberations and actions of the Borough Planning Commission involving 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 Borouggh 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 Borouggh Planning Commission involving tl�e Amendment/Rezoning 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. Shimko, Advice of Counsel 18 -533, at 1 -3. Advice of Counsel 18 -533 noted that the threshold question to be addressed was 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. Shimko 18 -533 -S u3 new, 2018 Page 4 The Advice of Counsel applied the Ethics Act's definition of the term "public official" to the submitted facts and concluded as follows: [T he 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 of 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, 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 AUUEIUPMC 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). Shimko, Advice of Counsel 18 -533, at 4 -5. In your May 22, 2018, advisory request letter, you request supplemental advice based on additional facts that were not previously submitted in your initial advisory request. You state that while the AUUEIUPMC Subdivision Plan and the AHN - Jefferson Hospital Preliminary Plan fall within the categories of subdivision and land development plans for which the Borough Planning Commission may only make recommendations to Borough Council, the Borough Planning Commission has been authorized by Borough Council to approve one particular subset of subdivision and land development plans. Pursuant to Chapter 22, Part 8, Section 802 of the Borough of Jefferson Hills Code of Shimko 18 -533 -S 2018 Page 5 Ordinances, in the case of lot line adjustments, including consolidation plans, involving no more than three lots of record in plans previously a pproved by the Borough and recorded in the office of the Allegheny Count Recorder ofNeds, Borough Council has delegated the authority to grant approval of the revised plat to the Borough Planning Commission. You seek guidance as to whether the above additional facts would alter the conclusion of Advice of Counsel 18 -533 that Mr. Reckard and Mr. Hynes, in their ca acity as Members of the Borough Planning Commission, are not 'public officials" subject to the Ethics Act. 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. This Supplemental Advice incorporates herein by reference the quoted provisions of the Ethics Act set forth within Shimko, Advice of Counsel 18 -533. In considering the additional submitted facts, it is clear that the Borough Planning Commission is not a purely advisory board. Although the Borough Planning Commission may perform only an advisory function with respect to the categories of subdivision and land development plans that include the AUUE /UPMC Subdivision Plan and the AHN- Jefferson Hospital Preliminary Plan, the authority of the Borough Planning Commission to grant approval of revised plats in certain cases involving lot line adjustments exceeds a purely advisory function. As such, the necessary conclusion is that Mr. Reckard and Mr. Hynes would not 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. Therefore, the necessary conclusion is that 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, including the restrictions of Section 1103(a) of the Ethics Act (pertaining to conflict of interest). In light of this conclusion, your questions involving Mr. Reckard and Mr. Hynes must be addressed anew. As to Mr. Reckard: UPP is a business with which Mr. Reckard is associated in his capacity as an employee. Under the submitted facts, UPMC is not a business with which Mr. Reckard is associated. Mr. Reckard'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. Reckard in matters before the Borough Planning Commission that would financially impact AUUE /UPMC. You are advised that absent some basis for a conflict of interest such as a private pecuniary benefit to Mr. Reckard, a member of his immediate family, or a business with which he or a member of his immediate family is associated such as UPP, Mr. Reckard would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to 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 AUUEIUPMC property(ies). Shimko, 18 -533 -S uT—ne 1, 2018 Page 6 As to Mr. Hynes: South Pittsburgh Anesthesia is a business with which Mr. Hynes is associated in his capacity as an employee. Under the submitted facts, AHN- Jefferson Hospital is not a business with which Mr. Hynes is associated. You are advised that absent some basis for a conflict of interest such as a private pecuniary benefit to Mr. Hynes, a member of his immediate family, or a business with which he or a member of his immediate family is associated such as South Pittsburgh Anesthesia, Mr. Hynes would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to 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). Regarding Both Mr. Reckard and Mr. Hynes_ In each instance of a conflict of interest, the Borough Planning Commission 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 1103(j) 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 bde y-Section 11030) of the Ethics Act. See, Pavlovic, Opinion 02 -005. The only voting conflict exception that enables a mem er b o a nine - member board such as the Borough Planning Commission 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 voting under the provisions o t e Ethics Act makes the maioritv or other legally required vote of approval unattainable; and (2) prior to voting, suc 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 only —it does not permit other forms of participation, such as discussing the matter that is the subject of the vote. Pavlovic, supra. Therefore, pursuant to Sections 1103(a) and 11030) of the Ethics Act, the Borough Planning Commission 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 the Borough Planning Commission would have conflicts of interest under the Ethics Act as to such matter (o 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 Pennsylvania Municipalities Planning Code or the Borough Code. Conclusion: Based upon the additional submitted facts that: (1) while the AUUE/UPMC Subdivision Plan and the AHN - Jefferson Hospital Preliminary Plan fall within the categories of subdivision and land development plans for which the Borough Planning Commission may. only make recommendations to Borough Council, the Borough Planning Commission has been authorized by Borough Council to approve one particular subset of subdivision and land development plans; and (2) ursuant to Chapter 22, Part 8, Section 802 of the Borough of Jefferson Hills Code of Ordinances, Shimko, 18 -533 -S uJ—ne 12, 2018 Page 7 in the case of lot line adjustments, including consolidation plans, involving no more than three lots of record in plans previously approved by the Borough and recorded in the office of the Allegheny County Recorder of Deeds, Borough Council has delegated the authority to grant approval of the revised plat to the Borough Planning Commission, you are advised as follows. Derek Reckard Sthe Mr. Reckard ") and Christopher Hynes ( "Mr. Hynes "), in their capacity as Members Borough Planning Commission, are public officials subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et sew , including the restrictions of Section 1103(a) of the Ethics Act (pertaining to conTlict of interest). As to Mr. Reckard: UPP is a business with which Mr. Reckard is associated in his capacity as an employee. Under the submitted facts, UPMC is not a business with which Mr. Reckard is associated. Mr. Reckard'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. Reckard in matters before the Borough Planning Commission that would financially impact AUUEIUPMC. Absent some basis for a conflict of interest such as a private pecuniary benefit to Mr. Reckard, a member of his immediate family, or a business with which he or a member of his immediate family is associated such as UPP, Mr. Reckard would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to ptae icipating in deliberations and actions of the Borough Planning Commission involving tt 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). As to Mr. Hynes: South Pittsburgh Anesthesia is a business with which Mr. Hynes is associated in his capacity as an employee. Under the submitted facts, AHN- Jefferson Hospital is not a business with which Mr. Hynes is associated. Absent some basis for a conflict of interest such as a private pecuniary benefit to Mr. Hynes, a member of his immediate family, or a business with which he or a member of his immediate family is associated such as South Pittsburgh Anesthesia, Mr. Hynes would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to 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). Regarding Both Mr. Reckard and Mr. Hynes: In each instance of a conflict of interest, the Borough Planning Commission 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. The only voting conflict exception that enables a member board such as the Borough Planning Commission to vote despite a requires that the following conditions be met: (1) the board must be action on the matter before it because the number of members regui of a nine - member conflict of interest unable to take any recT—toabstain from Shimko, 18 -533 -S uTrie72, 2018 Page 8 vote of approval unattainable; and (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 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 11030) of the Ethics Act, the Borough Planning Commission 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 the Borough Planning Commission would have conflicts o interest under the Ethics Act as to such matter(s)- that there would not be enough non-conflicted Members let to take action. 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 o�Tis Advice pursuant to 51 Pa. Code § 73.2(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, Robin M. Hittie Chief Counsel