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HomeMy WebLinkAbout94-546 WilliamsWarren R. Williams Susquehanna County Commissioner P.O. Box 218 Courthouse Montrose, PA 18801 Dear Mr. Williams: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 8, 1994 94 -546 Re: Conflict, Public Official /Employee, County Commissioner, Use or Authority of Office or Confidential Information, Vote, Guarantee of Bond Issue, Member of Immediate Family, Spouse, Business with which Associated. This responds to your letter of March 12, 1993 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a County Commissioner from voting on a bond issue guarantee for a prospective purchaser of a hospital where the Commissioner's spouse is employed. Facts: You are Chairman of the Board of County Commissioners for Susquehanna County. Your wife is a Registered Nurse who works at Medical Arts Clinic which is a part the Montrose General Hospital (Hospital). . The Hospital is located in Montrose, Susquehanna County. The Hospital was built in 1956 and your wife started working there at time. Yov wife is a staff nurse in the doctors' office; the clinic part of the Hospital. She is not involved with the managemdnt of the facility nor does. she or you ' have any financial investment'in the facility. The hospital " is in debt and the 'owners are trying • to sell. The majority owners are two doctors and their wives. A non - profit group, "The Endless Mountains Health System, Inc. ", (Endless Mountains) is negotiating to buy the facility and has informally asked the Susquehanna County Commissioners to consider a bond issue guarantee in the amount of approximately $2,500,000 to $3,000,000. The advantage of this guarantee is a reduced interest rate on the bonds. It is possible that without a county guarantee, the Williams, Warren R., 94 -546 April 8, 1994 Page 2 transaction will not take place. At this time, no formal request has come before the Commissioners. The Commissioners asked that Endless Mountains to provide information from a professional auditing firm to assure that the hospital would be fiscally sound. If the report is favorable, the Commissioners will consider taking action. The Hospital employs approximately 150 people and is a major employer in the county. Most of the employees receive more than the minimum wage which is well above the average wage in the county. The Hospital is one of two in the county. Therefore, this Hospital is sincerely needed for the physical health and economic well being of the county. The Hospital is located almost in the center of the county. The nearest other hospitals are in Binghamton, NY, Tunkhannock, PA, Scranton, PA and Wilkes- Barre, PA, (25 to 55 miles away). You have talked with Dr. Paul Kerr, one of the owners. He told you that if Endless Mountains or some other group did not purchase the Hospital, they would continue the operation as best they could for as long as they can. You also talked with Dr. Raymond Bennett, another owner, who stated that they would keep the Hospital open until becoming incapacitated or death made the decision for them. Finally, you talked with the Hospital administrator, Rex Catlin. He told you that the administration of the Hospital has been reorganized. Since the reorganization, the Hospital is operating in the black and is reducing its debt. He has no reason to believe the hospital will close if it is not purchased or transferred to another owner. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. 55407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. SS407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Commissioner for Susquehanna County, 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: Williams, Warren R., 94 -546 April 8, 1994 Page 3 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 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 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 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 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 anything of monetary value based upon the understanding that the vote, official action, or judgement of the Williams, Warren R., 94 -546 April 8, 1994 Page 4 public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities (j) 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 provided 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. If a conflict exists, Section 3(j) requires the public official /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 or supervisor. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict Williams, Warren R., 94 -546 April 8, 1994 Page 5 under the Ethics Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. You are further advised that the use of authority of office is more than the mere mechanics of voting and encompasses all of the tasks needed to perform the functions of a given position. See Juliante, Order No. 809. Use of authority of office includes discussing, conferring with others, lobbying for a particular result and /or any other use of the authority of office in which the result would be a private pecuniary benefit to a business with which a public official or a member of his immediate family is associated. In applying the Ethics Law to this case, it is noted that the Ethics Law, pursuant to Section 3(a), prohibits a public official from using the authority of office public office or confidential information received by holding a public office for the private pecuniary benefit of the public official, any member of his immediate family, or any business with which the public official or a member of his immediate family, or any business with which the public official or a member of his immediate family is associated. In this case, the business with which your spouse is associated is the Hospital, not Endless Mountains. Therefore, you would not have a conflict of interest in voting on the matter of the bond issue guarantee as to Endless Mountains. 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. Finally, this advisory is limited to the specific question raised. Conclusion: As a Commissioner for Susquehanna County, you are a public official subject . to the provisions of the Ethics Law. Since Endless Mountains is not a business with which your spouse is associated, you would not have a conflict of interest as to Endless Mountains and the Ethics Law'would not prohibit you from voting on the bond issue guarantee. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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. Williams, Warren R., 94- 546a April 8, 1994 Page 6 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 actually received at the Commission within fifteen (15) days of the date of this Advice 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). ncerely, Vincent Dopko Chief Counsel