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HomeMy WebLinkAbout96-551 StewartRichard W. Stewart, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street PO Box 109 Lemoyne, PA 17043 -0109 Dear Mr. Stewart: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 15, 1996 96 -551 Re: Conflict, Public Official /Employee, Township Supervisor, Emergency Medical Service, Purchase of Vehicle, Private Car Dealership. This responds to your letters of April 9, 1996, April 10, 1996 and April 12, 1996 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 township supervisor regarding the sale of a van through his private used car dealership to the township emergency medical service. Facts: As the Solicitor for Fairview Township in York County, Pennsylvania, you request an advisory on behalf of Richard V. Brubaker (Brubaker), a Fairview Township Supervisor. In his private capacity, Brubaker owns and operates Poor Richards Auto Sales, a used car dealership located in the Township. Recently, members of the Fairview Township Emergency Medical Services, Inc. (FTEMS) have expressed an interest in purchasing a 1989 Ford van which is for sale on Brubaker's lot. FTEMS plans to convert the van for use as a wheelchair van. FTEMS is a non - profit corporation that is presently the authorized provider of emergency medical services within the Township. Historically, ambulance services were originally provided by the Fairview Township Volunteer Fire Department. With the growth of the ambulance services, the ambulance operation was split off into a separate non - profit corporation that was incorporated in 1993 by individuals who were members of the volunteer fire company. Ambulance services have always been provided to the township by FTEMS and its predecessor which was the volunteer fire company. Fairview Township has an on -going financial relationship with FTEMS which includes the following: Stewart /Brubaker, 96 -551 May 15, 1996 Page 2 (1) The Township owns some of the equipment used by FTEMS to provide services; (2) Township employees provide emergency medical services under the direction of FTEMS which you state amounts to a subsidy of the operations of FTEMS since the Township is not compensated for the use of three of the employees; (3) The Township leases several other employees to FTEMS; and (4) The Township must approve FTEMS's schedule of charges. The value of the employees contributed by the Township amounts to approximately $ 140,000.00 annually which represents slightly more than fifty percent of the budget of the FTEMS operation. The other employees are on the Township payroll but all of the costs of those employees including pension costs are reimbursed by the corporation from revenues generated by the corporation's transport of patients. The Township owns one of the ambulance vehicles. The corporation owns the other three vehicles. Fairview Township does not provide any other support for FTEMS. The other funding sources for FTEMS are revenues derived from emergency and routine transport of patients. The Township's equipment and its employees could be withdrawn at any time. However, you state that if Fairview Township would stop its financial subsidy of FTEMS, such could result in the financial collapse of the operation. You have submitted copies of the agreement between Fairview Township and FTEMS and the resolution by which the Township has previously recognized FTEMS as the exclusive provider of emergency medical services in Fairview Township, which agreement and resolution are incorporated herein by reference. It is noted that paragraph 2 of the Resolution provides: Section 2. Fairview Township Emergency Medical Services, Inc., is hereby given all power so far as Fairview Township has the power to grant the same, to enact such rules and regulations for the management and government of individual members thereof as shall be necessary for the proper maintenance and control of said Corporation. Neither the grant of the aforesaid power nor the recognition set forth in Paragraph 1 shall be construed as constituting the Fairview Township Emergency Medical Services, Inc., as the agent, department, or employee of Fairview Township except insofar as such effect is provided under the provisions of the Pennsylvania Workmen's Compensation Act or the Political Subdivision Torts Claim Act. Although FTEMS is presently the authorized emergency medical services provider in Fairview Township, the Board of Supervisors has the power to select another emergency medical services provider by passing a resolution. Presently, the Fairview Township Board of Supervisors and the Board of Supervisors from an adjoining Township, Newberry Township, have jointly requested proposals from Stewart /Brubaker, 96 -551 May 15, 1996 Page 3 providers of emergency medical services for providing emergency medical services to residents of both townships. FTEMS is one of several providers which has responded to this request for proposals. If the two townships were to jointly reach a decision, a majority of the Board of Supervisors of each township would have to approve this arrangement. If Fairview Township would decide to continue to go alone and make a change, the Board of Supervisors of Fairview Township would have the ability to do that. A decision by the Township to select a provider for emergency medical services, when approved by the State, has the effect of excluding other providers of emergency medical services. FTEMS does not provide services outside of Fairview Township except for mutual aide assistance calls with regard to emergency medical services. However, if a different emergency medical services provider is chosen by Fairview Township, such will not preclude FTEMS from making routine transport of patients anywhere, including to and from hospitals. You ask whether it would be a conflict of interest or violation of the Ethics Law for Brubaker to sell the van to FTEMS in the ordinary course of his business and whether, if he enters into the sales agreement with FTEMS, it would constitute a conflict of interest for him to vote on any proposals regarding the awarding of emergency medical services within the two townships including an award to FTEMS. You state that Brubaker has discounted the price of the van from the normal asking price because the purchaser is a non - profit entity. This vehicle has been publicly advertised by Brubaker and you have submitted a copy of that advertisement. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) 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 advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Supervisor for Fairview Township, Brubaker is a public official as that term is defined under the Ethics Law, and hence he is 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 Stewart /Brubaker, 96 -551 May 15, 1996 Page 4 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 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 Stewart/Brubaker, 96 -551 May 15, 1996 Page 5 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. 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 under the Ethics Law, then in that event participation is Stewart /Brubaker, 96 -551 May 15, 1996 Page 6 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 employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Poor Richards Auto Sales is a business with which Brubaker is associated. Although Section 3(a) would not preclude the sale of the van to FTEMS by Brubaker in his private capacity, in his public capacity as a Township Supervisor, Brubaker would have a conflict of interest as to the matter of selecting /approving an EMS provider. Based upon the facts which have been submitted, FTEMS's need and /or ability to purchase the van will be greatly impacted by the Township's official actions in this regard. If FTEMS is not chosen, and consequently loses the financial support of the Township, its services will certainly be greatly restricted and it may even go out of business. In each instance of a conflict of interest, a public official is required to abstain fully from participation and to publicly announce the abstention and the reasons for same, both orally at the meeting and in a memorandum to be filed with the Secretary recording the minutes. As for Section 3(f), although there are strong financial ties between the Township and FTEMS, based upon the unique facts, FTEMS is not within the Township government. Thus, Section 3(f) would have no applicability. 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 Second Class Township Code. Conclusion: As a Supervisor for Fairview Township, Pennsylvania, Richard V. Brubaker is a public official subject to the provisions of the Ethics Law. Brubaker would have a conflict of interest as to the Township's selection /approval of an emergency medical services (EMS) provider where the present EMS provider seeks to purchase a van from a business with which Brubaker is associated and the provider's need and /or ability to purchase the van will be greatly affected by the Township's decision. In each instance of a conflict of interest, Brubaker must abstain fully and publicly announce the abstention and the reasons for same, both orally at the meeting and in a memorandum to be filed with the secretary recording the minutes. Based upon the facts in this case, the EMS provider would not be within the township government, such that Section 3(f) would have no applicability. 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 Stewart/Brubaker, 96 -551 May 15, 1996 Page 7 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 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. ncerely, incen D•pko Chief Co sel