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HomeMy WebLinkAbout91-554 StreamsMr. Thomas L. Streams 153 Mill Run Drive Indiana, PA 15701 Dear Mr. This requested Streams: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 2, 1991 Re: Conflict, Public Official /Employee, County Coroner President of Ambulance Transport Service 91 -554 and responds to your letter of May 10, 1991, in which you advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a County Coroner as president of a non- profit corporation which provides infrequent ambulance services to the County at actual cost without generating any profit. Facts: As the Indiana County Coroner, you seek the advice of the State Ethics Commission. In addition to being the Coroner for Indiana County, you are also the President of Streams Ambulance Transport Services (SATS), which is a Pennsylvania non - profit corporation. SATS is used infrequently to transport bodies from the place of death to the hospital. SATS is only used when the funeral home's hearse is unavailable or when time is of the essence. SATS's charge of $50.00 to the County is less than the funeral home's charge and is the actual cost of providing the service. You affirmatively represent and assure the Commission that no profit is generated by SATS in providing this service to the County. You note that you have been asked by Indiana County Commissioner George E. Sulkosky, Jr. to obtain a ruling from this Commission to determine if a conflict of interest "has occurred" in this matter. You have enclosed a letter dated May 10, 1991 from Commissioner Sulkosky addressed to you, together with an invoice numbered 91 004, dated April 19, 1991 from SATS to Indiana County for body removal services rendered, which documents are incorporated herein by reference. Page 2 Thomas L. Streams Discussion: As Coroner for Indiana County, Pennsylvania, you are a public official as that term is defined under the Ethics Law, . and hence you are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "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. "Conflict" or "conflict of interest" 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 industry, occupation or other group which includes the public official or public employee, a member or 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. Page 3 Thomas L. Streams "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 has a financial interest. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. "Contract" shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. Page 4 Thomas L. Streams Section 3(f) of the Ethics Law provides: Section 3. Restricted activities. (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. Parenthetically, where contracting is otherwise - allowed or where there appears to be no expressed prohibitions to such contracting, the above particular provision of law would require that an open and public process must be used in all situations where a public official /employee is otherwise appropriately contracting with his own governmental body in an amount of $500.00 or more. This open and public process would require: (1) prior public notice of the contracting possibility; sufficient time for a reasonable competitor /applicant to be able to present an application or proposal; public disclosure of all applications considered and; employment or and prudent prepare and or proposals Page 5 Thomas L. (4) Streams public disclosure of the contract awarded and offered and accepted. Section 3(f) of the Ethics Law also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract. Turning to your specific inquiry, it is initially noted that your inquiry may only be addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct is not considered in that they do not involve an interpretation of the Ethics Law. It is further noted that your inquiry may only be addressed with respect to prospective conduct. A reading of Sections 7(10) and (11) of the Ethics Act makes it clear that an opinion /advice may be given only as to prospective (future) conduct. If the activity in question -has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Law violations by a person who is subject to the Ethics Law. Your specific inquiry asks if a conflict of interest "has occurred in this matter." Such an inquiry seeks a ruling on past conduct and therefore that question may not be addressed in this Advice. However, your request letter also inherently encompasses an inquiry as to the propriety of providing such services to the County in the future and to that extent only, this Advice will address your request. First, in applying the above facts to Section 3(f) of the Ethics Law, the facts do not reveal the existence of any contract between SATS and the County for providing these services on a continuing basis. Rather, SATS is used infrequently for transporting bodies from the place of death to the hospital when the funeral home's hearse is unavailable or when time is of the essence. It is possible that each such instance where SATS is used could be deemed a contractual arrangement. However, the $50.00 charge is clearly below the $500.00 threshold for Section 3(f) restrictions to apply, and there would not appear to be any contract fragmentation under these facts. See, Astolos, Order No. 741. Thus Section 3(f) does not appear to apply to the present circumstances. However, Section 3(a) of the Ethics Law would prohibit your using the authority of your office or confidential information obtained by holding the office of Coroner to obtain a private pecuniary benefit for SATS. The fact that you state that no Page 6 Thomas L. Streams Profit is generated by the services provided to the County does not gainsay the private pecuniary benefit which would be generated. The element of "private pecuniary benefit" is not defined as, or confined to profit. Rather, each use of SATS' services would result in a $50.00 fee with offsets to operating costs. Since there would be a private pecuniary benefit even though there may be no "net profit ", you could not use the authority of your office as Coroner by making a decision to use the corporation with which you are associated for these business transactions. (See, Sullivan, Opinion 87 -004, where the Commission rejected an argument under former Ethics Act 170 of 1978 that transactions involving no "net income" were not required to be reported as a source of income.) In passing, it is noted that S1806 of the County Code, 16 P.S. §1806 regarding "County Officers Not to Be Interested in Contracts" may also be implicated under the facts which you have presented. However, the Commission does not specifically have the statutory jurisdiction to interpret the County Code. It is recommended that you consult with your solicitor regarding your proposed conduct as it may involve restrictions within the County Code. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the County Code. Conclusion: As Coroner for Indiana County, Pennsylvania, you are a public official subject to the provisions of the Ethics Law. This advice addresses prospective conduct only and does not address your inquiry to the extent it involved past conduct. The provision of ambulance transport services to the County by Streams Ambulance Transport Service (SATS), a Pennsylvania non- profit corporation of which you are President, would not implicate the restrictions of Section 3(f) of the Ethics Law under the facts which you have presented. There is no contract for providing SATS' services to the County on a continuing basis (nor does there appear to be contract fragmentation), and the charge for each service is well below the $500.00 threshold set forth in Section 3(f). However, Section 3(a) of the Ethics Law would clearly prohibit your use of the authority of your office or confidential information received through your holding office as Coroner to use SATS' services for business transactions with the County. The use of SATS' services would result in a private pecuniary benefit to this corporation with which you are associated, despite the fact that you have represented that no "profit" is thereby generated. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Page 7 Thomas L. Streams It is recommended that you consult with your solicitor regarding any restrictions of the County Code with regard to your proposed . conduct, and specifically 16 P.S. §1806. Pursuant to Section 7(11), 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. such. This letter is a public record and will be made available as Finally, if you disagree with this Advice or if you have any 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. Sincerely, C-r Vincent . Dopko, Chief Counsel