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