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HomeMy WebLinkAbout96-556 UrlingC. John Urling, Jr. 502 Kentwood Drive Mechanicsburg, PA 17055 -6804 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 22, 1996 96 -556 Re: Conflict, Public Official /Employee, Member, Workmens' Compensation Appeal Board, Lawsuit, Expert Witness, Policyholder, Workers' Compensation Insurance Carrier. Dear Mr. Urling: This responds to your letter of April 22, 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 Member of the Workmens' Compensation Appeal Board as to his participation as an expert witness in an action between a policyholder and its Workers' Compensation Insurance carrier. Facts: As a Member of the Workmens' Compensation Appeal Board (WCAB), you request an advisory from the State Ethics Commission. You have been asked to act as an expert witness in an action between a policyholder, Oxford Development Group of Pittsburgh, Pennsylvania, and its Workers' Compensation Insurance carrier. The action involves a disputed premium charge. You state that General Accident has very few cases before WCAB so that your recusal from its cases would not place an undue burden upon the other WCAB Members. You would be retained by a law firm that does not practice before WCAB and you would not be using any knowledge which is peculiar to your position. Your services as an expert witness would involve reviewing the expert testimony of the policyholder, making comments, and commenting on the general handling of claims in insurance companies. You seek an advisory as to whether your proposed participation as an expert witness would be in violation of the Ethics Law. 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 Urlina, 96 -556 May 22, 1996 Page 2 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 Member of the Workmens' Compensation Appeal Board (WCAB), 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. 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(j) of the Ethics Law provides as follows: Section 3. Restricted activities Urlinq, 96 -556 May 22, 1996 Page 3 (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 applying the above provisions to the facts which you have submitted, the Ethics Law would not prohibit your proposed participation as an expert witness in the lawsuit between Oxford Development Group of Pittsburgh, PA and its Workers' Compensation Insurance carrier, as long as the above restrictions are observed. As for Section 3(a) of the Ethics Law, that Section does not prohibit public officials /employees from outside business activities or employment; however, the public official /employee may not use the authority of office for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -01 1. A public official /employee must exercise caution so that his private business activities do not conflict with his public duties. Crisci,, Opinion 89- 013. Thus, a public official /employee could not perform private business using governmental facilities or personnel. In particular, the governmental telephones, postage, staff, equipment, research materials, personnel or any other property could not be used as a means, in whole or part, to carry out private business activities. In addition, the public official /employee could not during government working hours, solicit, promote, or perform such business activity. Pancoe, supra. Similarly, Section 3(a) would expressly prohibit the use of confidential information received by holding public office/ employment for such a prohibited private pecuniary benefit. Should the law firm which retains you -- or its client -- appear before you in your official capacity, you would have a conflict of interest which would require you to Urling, 96 -556 May 22, 1996 Page 4 abstain fully and to fully satisfy the disclosure requirements of Section 3(j). See, Miller, Opinion 89 -024. In summary, the Ethics Law would restrict the following: 1. The use of authority of office to obtain any business in a private capacity; 2. utilization of confidential information gained through public position; 3. participating in discussions, reviews, or recommendations on matters which relate to the business /private employer which may come before the governmental body and in such cases publicly announcing the relationship or advising the supervisor as well as filing a written memorandum as per the requirements of Section 3(j) of the Ethics Law. Brooks, Opinion 89 -023. 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 Governor's Code of Conduct. Conclusion: As a Member of the Workmens' Compensation Appeal Board (WCAB), you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude you from participating as an expert witness in an action between Oxford Development Group of Pittsburgh, PA and its Workers' Compensation Insurance carrier arising out of a disputed premium charge, subject to the restrictions and qualifications as noted above. In the event that the law firm which retains you or its client would have a matter pending before WCAB, then you would be required to abstain as to the matter, and the disclosure requirements of Section 3(j) of the Ethics Law as outlined above would have to be fully satisfied. 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. 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 UrJjnq, 96 -556 May 22, 1996 Page 5 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. iii cerely, Vincent J. • op o Chief Counsel