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HomeMy WebLinkAbout96-589 McConahySidney M. McConahy Communications Supervisor Mifflin County Emergency Services 20 North Wayne Street Lewistown, PA 17044 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 10, 1996 96 -589 Re: Conflict, Public Official /Employee, County, 9 -1 -1 Emergency Service Center, Communications Supervisor, Telecommunicator, Emergency Medical Technician, Business With Which Associated, Not - For - Profit Emergency Provider, Ambulance Service. Dear Mr. McConahy: This responds to your letter of August 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 Communications Supervisor /Telecommunicator for a County 9 -1 -1 Emergency Communications Center, who in his private capacity is both a paid and a volunteer Emergency Medical Technician for three not - for - profit emergency providers that are dispatched by the telecommunicators at the 9 -1 -1 Center. Facts: As a Communications Supervisor /Telecommunicator for Mifflin County's 9 -1 -1 Emergency Communications Center, you request an advisory from the State Ethics Commission. Mifflin County runs an Emergency Communications Center (9 -1 -1 Center) which dispatches emergency vehicles. The 9 -1 -1 system is in the process of being enhanced with computerization of names, addresses, telephone numbers, mapping and response jurisdictions. In addition to your position as Communications Supervisor /Telecommunicator for the County's 9 -1 -1 Center, you also work as an Emergency Medical Technician (EMT) for three not - for - profit emergency providers within the County. You are paid $7 per hour by two of these providers, but you are a volunteer receiving no remuneration from the third. The Mifflin County 9 -1 -1 Center dispatches all McConahv, 96 -589 September 10, 1996 Page 2 emergency services in Mifflin County, including these three emergency service providers that you serve as an EMT. The 9 -1 -1 Center's telecommunicators are responsible for taking information and dispatching the appropriate unit(s). You state that when a telecommunicator receives a 9 -1 -1 call, he obtains the name, location, telephone number, and the nature of the incident. A recommendation block then appears on the computer screen indicating which units are appropriate for dispatch. There may be more than one appropriate unit to send, and the telecommunicator may choose from the listed units or may manually override the computer and choose another unit. You state that the practice of manually overriding the system is not generally condoned and must be justified. Your specific question is whether a conflict of interest may exist if you continue to dispatch the emergency service providers which you serve as an EMT. 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 advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Communications Supervisor /Telecommunicator for Mifflin County's Emergency Communications Center (9 -1 -1 Center), you are a public employee 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 McConahv, 96 -589 September 10, 1996 Page 3 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, 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. 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 (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 McConahv, 96 -589 September 10, 1996 Page 4 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 employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Furthermore, Section 3(a) prohibits the use of the authority of the public position — or confidential information received by being in that position — to the detriment of business competitors. See, Pepper, Opinion 87 -008. The first matter for consideration is whether the three not - for - profit emergency service providers which you serve as an EMT are "businesses with which you are associated," as defined in the Ethics Law. Although you have not expressly so stated, it is assumed that these entities are non - profit corporations. The emergency services provider for which you provide volunteer services as an EMT would not be within the definition of "business with which associated," conditioned upon the assumption that you hold no qualifying status with that entity, such as an officer position. However, you are an employee of the other two providers, which status is within the definition. Furthermore, the Commission has held that a non - profit corporation is within the definition of "business" as set forth in the Ethics Law. Confidential Opinion, 89 -007. Thus, the two providers which you serve as a paid EMT are "businesses" and by virtue of your employment relationship, they are businesses with which you are associated. It would appear that conflicts of interest would arise routinely for you as to the two providers which are businesses with which you are associated. As a telecommunicator, you would necessarily have to make instant decisions to dispatch service providers for emergency services. In situations where these particular providers would be dispatched by you, whether as suggested by the computer or through an override of the computer, a conflict of interest would potentially exist. In dispatching these providers to provide ambulance services, you would be using the authority of your public employment and there would be a private pecuniary benefit in the nature of fees for such services resulting to the providers who are your private employers. JVlcConahy, 96 -589 September 10, 1996 Page 5 Certainly, the requirements imposed by the Ethics Law in conflict of interest situations — which in this case would include abstention and filing a written memorandum with the supervisor — could present special practical and logistical problems given the emergency nature of the services and the immediate action required of a telecommunicator. It may be that meeting the requirements of the Ethics Law would impact upon your ability to function in the job. Nevertheless, these are the requirements. 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 a Communications Supervisor /Telecommunicator for Mifflin County's Emergency Communications Center (9 -1 -1 Center), you are a public employee subject to the provisions of the Ethics Law. You may not use the authority of your public position as Communications Supervisor /Telecommunicator for the private pecuniary benefit of yourself, a member of your immediate family or a business with which you or a member of your immediate family is associated. The two emergency services providers which pay you as an EMT, which are assumed to be non - profit corporations, are businesses with which you are associated. The third emergency services provider for which you provide volunteer services and by which you are not compensated is not a business with which you are associated, conditioned upon the assumption that there is no other qualifying relationship between you and that entity, such as would exist if you would hold an officer position with it. The dispatching of an emergency service provider with which you are associated to provide emergency services would place you in potential conflict of interest situations, at risk of transgressing Section 3(a) of the Ethics Law. In each instance of a conflict of interest, you would be required to abstain and to file a written memorandum with your supervisor. 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 McConahv, 96 -589 September 10, 1996 Page 6 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, Vincent J. Dopko Chief Counsel