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HomeMy WebLinkAbout97-617 DumpmanShirley J. Dumpman 23 Scenic Drive Coraopolis, PA 15108 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 20, 1997 97 -617 Re: Conflict, Public Official /Employee, Private Employment or Business, Superintendent, State Hospital, Department of Public Welfare, Owner /Partner, Private Non - profit Corporation, Subcontract, Department of Corrections, Behavioral Health Services, Inmates, Business With Which Associated. Dear Ms. Dumpman: This responds to your letter of September 16, 1997 by which you requested advice from the State Ethics Commission. Issue: Whether the Superintendent of a State Hospital is prohibited or restricted by the Public Official and Employe Ethics Law from becoming an owner /partner in a private non - profit corporation which would provide Behavioral Health Services by subcontracting with agencies /corporation(s) which have direct contracts with the Commonwealth of Pennsylvania, Department of Corrections. Facts: As the Superintendent of Mayview State Hospital in Bridgeville, Pennsylvania, you request an advisory from the State Ethics Commission. You have an opportunity to become an owner and partner in a new private non- profit corporation which would provide behavioral health (mental health, drug and alcohol) services to inmates of correctional facilities in the eastern part of Pennsylvania. You state that while Mayview State Hospital has a Forensic Unit which serves mentally ill individuals who have charges who are sent to Mayview for determination to stand trial and for treatment, the 34 counties which Mayview serves for female offenders and the 15 counties which it serves for male offenders do not include the eastern counties which would be served by the new corporation. The corporation would be sub - contracting with agencies /corporation(s) that have contracts with the Department of Corrections. It is noted that the Mayview State Hospital is within the Commonwealth of Pennsylvania, Department of Public Welfare. Discussion: 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 Dumoman, 97 -617 October 20, 1997 Page 2 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 the Superintendent of Mayview State Hospital for the Department of Public Welfare, 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. Sections 3(a) and 3(j) of the Ethics Law provide as follows: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. (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. The following terms that pertain to conflicts of interest under the Ethics Law are defined 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 Dumpman, 97 -617 October 20, 1997 Page 3 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, 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. The State Ethics Commission has determined that the definition of "business" includes non - profit corporations. Soltis - Sparano, Order No. 1045; McConahy, Opinion No. 96 -006; Confidential Opinion, No. 89 -007. Section 3(f) of the Ethics Law, which pertains to contracting /subcontracting, 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 Dumpman, 97 -617 October 20, 1997 Page 4 jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. The following terms that pertain to Section 3(f) are defined in the Ethics Law as follows: Section 2. Definitions. "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. "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body, or other establishment in the Executive, Legislative or Judicial Branch of a state, a nation or a political subdivision thereof or any agency performing a governmental function. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. In applying the above provisions of the Ethics Law to your inquiry, Section 3(a) shall be addressed first. Section 3(a) of the Ethics Law does not prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may not use the authority of his public position — or confidential information obtained by being in that position — for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited under Section 3(a) would include: (1) the pursuit of a private business opportunity while acting in a public capacity, Metrick, Order No. 1037; (2) the use of governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order No. 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official /public employee is associated in his private capacity, such as the review /selection of its bids or proposals, Gorman, Order No. 1041. Dumoman, 97 -617 October 20, 1997 Page 5 If the private employer or business with which the public official /public employee is associated would have a matter pending before the governmental body, the public official /public employee would have a conflict of interest as to such matter. Miller, Opinion No. 89 -024. In each instance of a conflict of interest, the public official /public employee would be required to abstain from participation and to satisfy the disclosure requirements of Section 3(j). Under the facts which you have submitted, the private non - profit corporation would be considered a "business with which you are associated." Therefore, you could not use the authority of your public position as Superintendent of Mayview State Hospital to solicit or promote business activity between the private non - profit corporation and anyone or anything else, including but not limited to your own governmental body, the Department of Public Welfare. Furthermore, to the extent you would, in your public capacity, have involvement as to the private non - profit corporation or its business clients, a conflict of interest would exist. In each instance of a conflict of interest, you would be required to abstain and to satisfy the disclosure requirements of Section 3(j) set forth above. As for Section 3(f), you are advised that Section 3(f) of the Ethics Law does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official /public employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the 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, Section 3(f) requires that an "open and public process" be observed as to the contract with the governmental body. Pursuant to Section 3(f), an "open and public process" includes: (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. Where Section 3(f) applies, its requirements must be strictly observed. However, under the facts which you have submitted, the governmental body with which you are associated would not include the Department of Corrections. Accordingly, subcontracts between the private non - profit corporation and agencies /corporation(s) which have contracts with the Department of Corrections — as opposed to the Department of Public Welfare — would not be subject to the restrictions of Section 3(f). This Advice is limited to addressing the applicability of Sections 3(a) and 3(f) of the Ethics Law. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 3(a) of the Ethics Law. Dumpman, 97 -617 October 20, 1997 Page 6 Further, you are advised that Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment 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. Lastly, 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 the Superintendent of Mayview State Hospital for the Department of Public Welfare, you are a public employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude you from engaging in outside employment /business activity subject to the restrictions and qualifications as noted above. Although Section 3(a) of the Ethics Law would not preclude you, or a business with which you are associated, from subcontracting with agencies /corporation(s) which have contracts with the Department of Corrections, you could not use the authority of office or confidential information obtained by being in the public position to obtain such business, and any private business activity could not be conducted using governmental facilities or personnel. 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 1. 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, incent J. ' opk Chief Counsel