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HomeMy WebLinkAbout97-581 FoersterMichael T. Foerster, Esquire Medical Professional Liability Catastrophe Loss Fund 10th Floor, Suite 1000 30 North Third Street PO Box 12030 Harrisburg, PA 17108 Dear Mr. Foerster: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 12, 1997 97 -581 Re: Conflict, Public Official /Employee, Pennsylvania Medical Professional Liability Catastrophe Loss Fund (CAT Fund), Attorney Examiner, Spouse, Attorney, Business with which Associated, Law Firm. This responds to your letter of May 14, 1997 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 an Attorney Examiner with the Pennsylvania Medical Professional Liability Catastrophe Loss Fund (CAT Fund) with regard to his spouse's employment with a law firm that is under contract with the CAT Fund to provide defense in certain medical malpractice cases. Facts: As an Attorney Examiner employed by the Pennsylvania Medical Professional Liability Catastrophe Loss Fund (CAT Fund), you request an advisory from the State Ethics Commission. You state that your wife, who is also an attorney, has accepted an associate position with Hartman & Miller, P.C. beginning May 19, 1997. Hartman & Miller has a contract with the CAT Fund to provide defense in certain medical malpractice cases. Your duties as an Attorney Examiner include the supervision of the defense of medical malpractice cases which qualify for CAT Fund coverage. You state that in the majority of your cases, the defendant doctor's primary insurance carrier chooses which law firm will litigate the defense. Although you are allowed to recommend law firms in a few other instances, the actual decision of which firm to appoint is made by CAT Fund's Chief Counsel, Art McNulty. Foerster, 97 -581 June 12, 1997 Page 2 You state that the CAT Fund and approved defense firms share the common goal of providing successful defense for health care providers named in medical malpractice suits. It is your belief that because of this common goal, there would be no conflict between your employment with the CAT Fund and your wife's position with Hartman & Miller. Nevertheless, you seek an advisory from the State Ethics Commission. 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 an Attorney Examiner for the Pennsylvania Medical Professional Liability Catastrophe Loss Fund (CAT Fund), 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 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. Foerster, 97 -581 June 12, 1997 Page 3 "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 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 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; Foerster, 97 -581 June 12, 1997 Page 4 (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 (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 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. The law firm of Hartman & Miller, P.C., as your wife's employer, is a business with which a member of your immediate family is associated. Foerster, 97 -581 June 12, 1997 Page 5 Consequently, you would have a conflict of interest in matters in which your wife's employer, Hartman & Miller, P.C., is involved. In each instance of a conflict of interest, you would be required to abstain from participation and to satisfy the disclosure requirements of Section 3(j) as set forth above. Additionally, it is noted that any perceived similarity between the goals of the CAT Fund and the approved defense firms is of no legal consequence in the application of Section 3(a), which prescribes the use of authority of office or confidential information for the private pecuniary benefit of the public official /public employee, a member of his immediate family, or a business with which he or a member of his immediate family is associated. You are further advised that the restrictions of Section 3(f) would have to be observed as to any contracting between your governmental body and Hartman & Miller, P.C. where such contract(s) would be valued at $500 or more. 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 Rules of Professional Conduct or the Governor's Code of Conduct. Conclusion: As an Attorney Examiner for the Pennsylvania Medical Professional Liability Catastrophe Loss Fund (CAT Fund), you are a public employee subject to the provisions of the Ethics Law. The law firm of Hartman & Miller, P.C., as your wife's employer, is a business with which a member of your immediate family is associated. Consequently, you would have a conflict of interest in matters in which your wife's employer, Hartman & Miller, P.C., is involved. In each instance of a conflict of interest, you would be required to abstain from participation and to satisfy the disclosure requirements of Section 3(j) as set forth above. The restrictions of Section 3(f) would have to be observed as to any contract(s) between your governmental body and Hartman & Miller, P.C. where such contract(s) would be valued at $500 or more. 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 Foerster, 97 -581 June 12, 1997 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. cerely, in en . Iopko Chief Counsel