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HomeMy WebLinkAbout98-504 ShurgotSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 16, 1998 Stephen Shurgot 246 Morningside Avenue 98 -504 Wilmerding, PA 15148 Re: Conflict, Public Official /Employee, Borough, Council Member, Employee, Emergency Services Provider, Immediate Family, Spouse, Director, Non - Profit Corporation, Business with which Associated. Dear Mr. Shurgot: This responds to your letter of December 15, 1997 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employe Ethics Law presents any prohibition or restrictions upon a Borough Council Member with regard to an issue involving the Borough's provision of space and utilities to an emergency services provider, where the Council Member is employed by the emergency services provider and his wife serves on its Board of Directors. Facts: As a Council Member for Wilmerding Borough, Pennsylvania, you seek an advisory from the State Ethics Commission. You are a paid employee of Eastern Area Pre - Hospital Services (EAPS). EAPS is a non - profit corporation that provides ambulance coverage to Wilmerding Borough. You are the Supervisor of the Wilmerding Station. EAPS is managed by a volunteer Board of Directors. You are not an officer of EAPS. However, your wife serves on its Board Directors. You anticipate that Council will be voting on whether the Borough should continue to provide space and utilities to EAPS in the Borough building. You ask whether you may vote on this issue given that you are employed by EAPS and your wife is a member of its Board of Directors. 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 Shurgot, 98 -504 January 16, 1998 Page 2 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(1 (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Council Member for Wilmerding Borough, you are a public official as that term is defined in the Public. Official and Employe Ethics Law ( "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. "Immediate family." A parent, spouse, child, brother or sister. "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. Shurgot, 98 -504 January 16, 1998 Page 3 "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. "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. 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. Section 3(j) of the Ethics Law provides as follows: Shurgot, 98 -504 January 16, 1998 Page 4 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. In each instance of a conflict, 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 voting 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. The definition of the term business ' as set forth in the Ethics Law is very broad. Novak, Opinion No. 91 -009. As a corporation, EAPS is clearly within that definition. Moreover, the mere fact that EAPS is a non - profit corporation would not disqualify it as a "business." The word "or" toward the end of the definition of "business" is disjunctive, and the repeated use of the word "any" precludes any interpretation that the final phrase "legal entity organized for profit" modifies the initial word "corporation ": "Any corporation, ... or any legal entity organized for profit." Shurgot, 98 -504 January 16, 1998 Page 5 65 P.S. § 402. The clear and unambiguous statutory language is that any corporation, including a non - profit corporation, is a. "business." Soltis- Sparano, Order No. 1045 at 31 (Citing, Confidential Opinion, No. 89 -007; McConahy, Opinion No. 96 -006). Since EAPS is a "business" as that term is defined in the Ethics Law, it is clearly a business with which you and a member of your immediate family are associated in your respective capacities as employee and officer. The Borough's provision of space and utilities to . EAPS would result in a financial benefit to EAPS, a business with which both you and your wife are associated. Therefore, you would have a conflict of interest as to the Borough's anticipated action on the issue of whether the Borough should continue to provide space and utilities to EAPS in the Wilmerding Borough building. In each instance of a conflict of interest, you would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. 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 Borough Code. Conclusion: As a Council Member for Wilmerding Borough, you are a public official subject to the provisions of the Ethics Law. Eastern Area Pre- Hospital Services (EAPS) is a business with which you, as an EAPS employee, and your wife, as a Member of the EAPS Board of Directors, are associated. You would have a conflict of interest as to the Borough's anticipated action on the issue of whether the Borough 'should continue to provide space and utilities to EAPS in the Wilmerding Borough building. In each instance of a conflict of interest, you would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. 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. Shurgot, 98 -504 January 16, 1998 Page 6 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 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