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HomeMy WebLinkAbout94-008 PerperJoshua A. Perper, M.D. 3546 S. Ocean Boulevard, #202 Palm Beach, FL 33480 Dear Dr. Perper: I. ISSUE: DATE DECIDED: DATE MAILED: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: James M. Howley, Chair Daneen E. Reese, Vice Chair Dennis C. Harrington Roy W. Wilt Austin M. Lee Allan M. Kluger John R. Showers 12/16/94 12/27/94 94 -008 Re: Conflict, Public Official, County, Coroner, Autopsy, Expert Witness, Compensation, Civil Matter, Former Public Official. This Opinion is issued in response to your request of October 21, 1994. Whether a former county coroner is prohibited or restricted by the Public Official and Employee Ethics Law from testifying as an expert witness in a civil case relative to an autopsy he performed while coroner. II. FACTUAL BASIS FOR DETERMINATION: During your tenure as the Coroner for Allegheny County which ended on June 1, 1994, you, being a forensic pathologist, performed an autopsy on the body of a decedent, an activity not mandated by the Coroner's Law. You have recently been approached by an attorney who has asked you to act as an expert witness in a case wherein you would testify concerning the findings of that autopsy. Perper, Joshua A., M.D., 94 -008 December 27, 1994 Page 2 You made inquiry regarding your acting as an expert witness for a fee to the Allegheny County Solicitor who advised "from the County's point of view," that there would be no limitation on your ability to act as an expert witness in the civil matter noting that the Coroner is an independent elected official and not subject to the County Code of Conduct. The letter of the County Solicitor suggested that consideration be given to making an inquiry of this Commission. III. 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, this 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 former Coroner for Allegheny County, you were a public official 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 Perper, Joshua A., M.D., 94 -008 December 27, 1994 Page 3 IV. CONCLUSION: 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. 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. In applying the provisions of Section 3(a) of the Ethics Law to the instant matter, we must preliminarily note the fact that the performance of an autopsy which is not an activity mandated by the Coroner's Law is not relevant or material to the disposition of this case. It is sufficient that you did perform the autopsy in your capacity as Coroner. We do not believe that the proposed activity is prohibited by Section 3(a) of the Ethics Law. You performed this autopsy while serving as the elected Coroner. Following the conclusion of that autopsy, you prepared various reports which would be matters of public record. The fact that you now, as a former public official on your own time, are willing to testify as an expert witness for a fee as to such documents does not rise to a use of authority of office on your part. We also note in this regard that since you are not now a public official, you would not be taking any such action as Coroner. Hence, there would be no use of authority of office and derivatively no conflict under Section 3(a) of the Ethics Law. Our decision in this matter is necessarily and strictly limited in light of the unique facts of this case. 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. A former county coroner was a public official subject to the provisions of the Ethics Law. Section 3 (a) of the Ethics Law would Perper, Joshua A., M.D., 94 -008 December 27, 1994 Page 4 not prohibit or restrict a former county coroner from testifying as an expert witness in a civil case relative to an autopsy he performed while coroner. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. such. This letter is a public record and will be made available as Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By the Commission, James M. How]j Chair Commissioner Dennis C. Harrington did not participate in this matter.