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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