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HomeMy WebLinkAbout96-501 ShurgotSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 18, 1996 96 -501 Stephen Shurgot 246 Morningside Avenue Wilmerding, PA 15148 Re: Conflict, Public Official /Employee, Member, Borough Council, Business with which Associated, Emergency Medical Service, Vote. Dear Mr. Shurgot: This responds to your letter of December 13, 1995 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 borough council member who is employed by a non - profit emergency medical service corporation which serves the borough, regarding the provision of emergency medical services to the borough by a different provider. Facts: In 1959, the ambulance service in Wilmerding Borough became a community ambulance service governed by the Borough Council. You became involved with the ambulance service in 1983 and shortly thereafter, you and several other members of the ambulance service asked the Borough to allow the ambulance service to become a non - profit entity which would not be connected in any way to the Borough. In 1984, the Wilmerding EMS, with the approval of the Borough Council, became a non - profit corporation and the recognized "EMS" service for the community. You have served as the volunteer Operations Director of Wilmerding EMS since 1983. In 1988 you were elected to the Borough Council. You have served as Council President for the last two years. Over the last few years, the Wilmerding EMS has been trying to merge with other local EMS services in an effort to consolidate resources due to increasing difficulty in retaining volunteers. This effort was not successful until this year when the Wilkinsburg /Swissvale EMS, whose coverage area is six miles from Wilmerding EMS's service area, agreed to the merger. It was agreed Shurgot, 96 -501 January 18, 1996 Page 2 that the Wilmerding EMS would continue to operate out of their existing base. In August, 1995, the Wilkinsburg /Swissvale EMS merged with the Wilmerding EMS and formed a new non - profit corporation, "Eastern Area Pre- Hospital Services" (EAPHS). At its June, 1995 meeting, the Borough Council voted to recognize EAPHS as the official EMS service for the Borough. It was agreed that the Borough would continue to house the trucks and provide office space in the Borough building as had previously been done for the Wilmerding EMS. It was further agreed that the Borough would no longer pay vehicle insurance as EAPHS would provide its own insurance coverage. You note that this resulted in a financial savings for the Borough. It is your hope that EAPHS will become a recognized ambulance service in the Eastern suburbs. As a result of the merger, EAPHS now has a paid staff to supplement the former volunteer staff. Because of the difficulty in retaining volunteers, EAPHS has decided to staff the station with paid personnel. You are no longer an officer of the company, but you and nine other former volunteers now receive an income from EAPHS. You state that you have never voted on an ambulance issue since you have served on the Borough Council. The question which you pose for consideration pertains to an issue which may come up at the January, 1996 Borough Council meeting. The Borough Council has been approached by a neighboring private "for- profit" EMS service regarding providing EMS service to the community. At the December meeting, the Council voted to continue using EAPHS. You abstained from the vote. With the new council make -up, the private EMS service has again made its request to be the official EMS service provider. You are an employee of EAPHS. One of the newly - elected council members is an employee of EAPHS. The Mayor recently became an employee of the private service working in EAPHS's billing department. The Mayor's sister is a newly - elected council member. You state that if all of these individuals would abstain, there would be only four council members remaining to vote on this issue. You ask for guidance in the event of a 2 -2 tie vote or a 3 -1 vote. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(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. § §407(10), (11). An Shurgot, 96 -501 January 18, 1996 Page 3 advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. It is also initially noted that your inquiry may only be addressed with regard to your own prospective conduct. You do not appear to have standing to inquire as to the conduct of certain other individuals whom you have mentioned. As a Member and President of Wilmerding Borough Council, 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 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. "Business." Any corporation, partnership, sole proprietorship, firm, Shurgot, 96 -501 January 18, 1996 Page 4 enterprise, franchise, association, organization, self- employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "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. "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 anything 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 been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(f) of the Ethics Law provides as follows: 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 Shu =got, 96 -501 January 18, 1996 Page 5 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 express prohibitions to such contracting, the above particular provision of the 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, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more. This open and public process would require that the following be observed as to the contract with the governmental body: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor/ applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered and; (4) 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 with the governmental body. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities Shurgot, 96 -501 January 18, 1996 Page 6 (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 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. In applying the above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public Shurgot, 96 -501 January 18, 1996 Page 7 employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. EAPHS is within the definition of "business" as set forth above. You are an employee of EAPHS. Therefore, EAPHS is a business with which you are associated. You would clearly have a conflict of interest in the matter before Council of whether to approve a competitor of EAPHS as the official EMS service provider for the community instead of EAPHS. See, Pepper, Opinion 87 -008. You would be required to abstain fully from participation on this issue and you would also be required to fully satisfy the requirements of Section 3(j) set forth above as to disclosure of your abstention and the reasons for same. You have specifically sought guidance as to the prospect of a 2 -2 or 3 -1 vote which could occur if certain other individuals would abstain from participating in this matter. As noted above, this Advice may only address your proposed conduct, in that you do not have standing to inquire as to the propriety of the conduct of such others. However, you are generally advised that Section 3(j) governs instances of multiple abstentions pursuant to the Ethics Law. The language which pertains to bodies with more than three members is as follows: . . . 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. . . . 65 P.S. §403(j) (Emphasis added). Based upon the facts which you have submitted, even if certain individuals in addition to yourself would abstain, there would still be four members left to vote. The "majority or other legally required vote of approval" would not be "unattainable." You would not be allowed to vote despite your conflict. Finally, the restrictions of Section 3(f) set forth above must be observed when applicable. 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 Borough Code. Shurgot, 96 -501 January 18, 1996 Page 8 Conclusion: As a Member and President of Wilmerding Borough Council, you are a public official subject to the provisions of the Ethics Law. Your employer, "Eastern Area Pre - Hospital Services" (EAPHS),is a business with which you are associated. You would have a conflict of interest pursuant to Section 3(a) of the Ethics Law as to the issue of whether a different EMS service provider should provide EMS services to your community instead of EAPHS, the present provider. In each instance of a conflict of interest, you would be required to abstain fully and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. Since at least four of the seven Borough Council members would be able to vote on this issue, you would not be permitted to vote despite your conflict of interest. The restrictions of Section 3(f) set forth above must be fully observed when applicable. 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. 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 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 thirty (30) 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). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. cerely, Vincent J. Dopko Chief Counsel