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HomeMy WebLinkAbout83-013 GroveCharles B. Grove, Jr. Blakinger, Grove, Chillas, P.C. 33 East Orange Street Lancaster, PA 17602 II. Factual Basis For Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 August 19, 1983 OPINION OF THE COMMISSION Re: Ambulance Association, Directorship, Voting Dear Mr. Grove: I. Issue: 83 -013 As Counsel for a Township Supervisor you ask whether he may participate in certain decisions the Township may make regarding an ambulance association which serves the Township. Mr. Philip E. Bomberger currently serves as a Supervisor in East Hempfield Township, hereinafter, the Township. He served in this capacity since approximately 1972. Mr. Bomberger also serves as a director in the Hempfield Ambulance Association, hereinafter HAA having been appointed as same in 1981. As a director for HAA Mr. Bomberger receives no compensation. HAA is a not for profit corporation. Mr. Bomberger, as a director, has excused himself from HAA discussionTon the question of whether HAA should continue to serve certain geographic areas within Hempfield Township or not. Currently HAA serves approximately 14,000 persons. As Supervisor in the Township, of course, Mr. Bomberger is an elected official and he does receive $25 per meeting for those meetings which he attends in conformity with the provisions of the Second Class Township Code. It appears that during the month of September or early October the Supervisors in the Township will be called upon to vote on whether or not the "Wheatland Hills Area" within the Township, should continue to be served by HAA. Notably, some people in the Wheatland Hills area desire to be served by the West End Ambulance Association which is based in Millersville. As you perceive the question that will be posed to the Township, the issue will be whether the Wheatland Hills area of the Township should continue to be served by the HAA or by the West End Ambulance Association. If HAA does not continue Charles B. Grove, Jr. August 19, 1983 Page 2 to serve the Wheatland Hills area, some 500 families may be affected and potentially, be served by another association, and the "right" to solicit memberships and funds from persons within that service area would be transferred as well. It should also be noted that the Township currently makes a small donation to the HAA, the only Association currently serving the Township. There are no guarantees that such contributions which are decided by the Township on an annual basis, will continue. Whether these contributions may remain the same or be decreased /increased is not necessarily dependent upon the fact that HAA is or remains the only ambulance association serving the Township. Indeed, if past practice similar to fire company contributions is adopted, it is possible that Township contributions to two potential ambulance associations would be pro -rated based upon the persons /area served by each within the Township. III. Applicable Law: - The Law to be applied to this question is as follows: Section 1. Purpose. The Legislature hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the people of the State in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. Because public confidence in government can best be sustained by assuring the people of the impartiality and honesty of public officials, this act shall be liberally construed to promote complete disclosure. 65 P.S. 401. Section 3. Restricted Activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Charles B. Grove, Jr. August 19, 1983 Page 3 IV. Discussion: (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Section 2. Definitions. "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 holder of stock. 65 P.S. 402. Initially, the Commission notes that as a statutory entity its jurisdiction and its power are strictly limited to the authority granted under the Ethics Act, 65 P.S. 401 et. seq. Thus, it=has no authority to interpret and /or enforce the provisions of any other code such as the Second Class Township Code nor to undertake to interpret any agreements which may exist between the Township, the County, or the Ambulance Associations referenced in this Opinion. This Opinion should not be construed as clearance to act under any other Commonwealth law or to review any other contracts, agreements, etc., between or among these persons or parties. However, the State Ethics Act does require that the conduct of all "public officials" must "present neither a conflict nor the appearance of a conflict with the public trust." In this case, Supervisor Bomberger, as an elected official clearly falls within the category of "public official" who must conform his conduct to the requirements of the Ethics Act. Charles B. Grove, Jr. August 19, 1983 Page 4 Specifically, Section 3(a) of the Ethics Act prohibits a public official from using his public office or confidential information gained by virtue of his holding a public office to obtain financial gain, other than compensation provided by law, for himself, a member of his immediate family or a "business with which he is associated." This last phrase is most important in relation to our ruling in this case. A "business with which he (Mr. Bomberger) is associated" must refer first and foremost to a "business" as that term is defined in the Ethics Act. The definition of the term "business" refers primarily to any business "organized for profit." Because HAA is not organized for profit, it cannot be considered a "business" and therefore Mr. Bomberger cannot be deemed to be "associated" with such a business as these terms are defined in the Ethics Act. Accordingly, it would not be a violation of Section 3(a) of the Ethics Act for Mr. Bomberger to vote on this particular issue as presented above because in doing so, he would not be capable of obtaining, through his public office or vote, financial gain for a "business with which he is associated ". Likewise, because Mr. Bomberger is not paid as a director of the Board of HAA it is difficult to perceive how his vote on this particular subject would amount to an effort to realize personal financial gain through this action. Notably, we have previously ruled that the Mayor of Bridgeville, even though he served as a member of the Board of Directors of the South Hills Ambulance Service, was not precluded from ordering the Bridgeville Police Department to place emergency calls through that Association. See DeBlasio Order, No. 82. In that case we determined that there was no evidence that the Mayor had received direct or indirect personal financial gain from his order directing the use of the South Hills Ambulance Service. While the above discussion indicates that it would not be a restricted activity for Supervisor Borfiberger, under Section 3(a) of the Ethics Act to participate in the decision of the Township as outlined above, we must review the proposed conduct and question in light of Section 1 of the Ethics Act. Under Section 1 of the Ethics Act we initially note that the Legislature has declared that "any effort to realize personal finanical gain through public office other than compensation provided by law is a violation of that trust." Section 1 of the Ethics Act does not refer to or appear to be restricted in application by reference to a public official's actions vis -a -vis a "business with which he is associated" as is Section 3(a). We have previously concluded that, under Section 1, an executive of Pennsylvania Blue Shield, a non - profit corporation, would be compelled to abstain from participating in payment of bills presented by Blue Shield to the School Board on which this Executive also sat except where the payment is required by contract and where no dispute exists with regard to such payment. See Stewart, 79 -070. In the present situation, therefore, our precedent indicates that the fact that the HAA, like Pennsylvania Blue Shield, is a non - profit corporation does not preclude the Charles B. Grove, Jr. August 19, 1983 Page 5 possibility that an official may be required, under Section 1 of the Ethics Act, to abstain from participating in certain discretionary decisions and matters presented by the non - profit entity the official serves to the public body on which he also serves. Thus, in this case, while there does not appear to be any immediate direct or indirect personal financial gain to be garnered by Mr. Bomberger as a member of the Board of HAA and as a Township Supervisor, the public has a right, as the Legislature has decreed, to be assured that the financial interests of public officials present "neither a conflict nor the appearance of a conflict with the public trust." To achieve this goal, even where the personal finanical interest of Mr. Bomberger may not appear to be impacted by his participation in the Township's decision as to HAA, we feel that it would be best for him to abstain from such participation. This conclusion is also appropriate in light of Section 1 insofar as it should not even appear that Supervisor Bomberger's interests or conduct conflict with the public trust. Surely, because Supervisor Bomberger serves on the HAA Board he must appear to favor HAA, to have his official judgment vis -a -vis HAA affected by this association with HAA or the post he holds with HAA. Therefore, abstention by Supervisor Bomberger on voting on the matters presented by HAA to the Township is warranted. We note that Mr. Bomberger's long standing service as a Township Supervisor and his relatively recently undertaken service as HAA director, coupled with the fact that he did not participate in HAA discussions regarding the Hempfield Township - Wheatland Hills questions, lead us to conclude that as a Supervisor, Mr. Bomberger, under these facts should be compelled to abstain only from the Township's official votes on this matter. Mr. Bomberger is capab a of providing information and thoughts beneficial to the Township's decisions on this question and under these particular facts, we believe to preclude his participation in discussions on this matter would be counter - productive. Thus, so long as he abstains from the actual votes of the Township when questions about "the jurisdiction of HAA or West End Ambulance Association arise, he may, under the particular facts present here, participate in providing the Township with the benefit of his knowledge on this subject. IV. Conclusion: Under Section 3(a) of the Ethics Act Mr. Bomberger would not be precluded from participating in decisions of the Township relative to the Hempfield Ambulance Association because it is not a "business" with which he is "associated" as those terms and phrases are defined in the Ethics Act. Charles B. Grove, Jr. August 19, 1983 Page 6 However, if Supervisor Bomberger were to abstain from official votes he would thereby comply with Section 1 of the Ethics Act. Assuming Mr. Bomberger abstains from officially voting on this matter, he may under the particular facts presented here, participate in discussions of the Supervisors on this topic to provide them with the benefit of his knowledge and expertise. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any 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. SSC /na This letter is a public record and will be made avilable as such. Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The ,person requesting reconsideration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. By the Commission,