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HomeMy WebLinkAbout96-006 McConahyOPINION OF THE COMMISSION Sidney M. McConahy Communications Supervisor Mifflin County Emergency Services Lewistown, PA 17044 I. ISSUE: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Allan M. Kluger Boyd E. Wolff DATE DECIDED: 11/5/96 DATE MAILED: 11/13/96 96 -006 Re: Conflict, Public Official /Employee, County, 9 -1 -1 Emergency Service Center, Communications Supervisor, Telecommunicator, Emergency Medical Technician, Business With Which Associated, Not - For - Profit Emergency Provider, Ambulance Service, Appeal of Advice. Dear Mr. McConahy: This Opinion is issued pursuant to the appeal of Advice of Counsel, No. 96 -589 issued on September 10, 1996. Whether pursuant to the Public Official and Employee Ethics Law, a Communications Supervisor /Telecommunicator for a County 9 -1 -1 Emergency Communications Center may dispatch not - for - profit emergency service providers for which, in his private capacity, he provides paid or volunteer services as an Emergency Medical Technician. II. FACTUAL BASIS FOR DETERMINATION: By letter dated September 20, 1996, you have appealed Advice of Counsel No. 96 -589 issued September 10, 1996. In your initial advisory request letter dated August 12, 1996, you presented the following facts. You are a Communications Supervisor /Telecommunicator for Mifflin County's 9 -1 -1 Emergency Communications Center (9 -1 -1 Center) which dispatches all emergency vehicles in Mifflin County. The 9 -1 -1 system is in the process of being enhanced with computerization of names, addresses, telephone numbers, mapping and response jurisdictions. McConahv, 96 -006 November 6, 1996 Page 2 You also work as an Emergency Medical Technician (EMT) for three not -for- profit emergency providers within the County. Two of these providers pay you for your services, but you are an unpaid volunteer for the third provider. All three providers are dispatched by the Mifflin County 9 -1 -1 Center. In your position as a telecommunicator at the 9 -1 -1 Center, you are responsible for taking information and dispatching the appropriate unit(s). When a telecommunicator receives a 9 -1 -1 call, the name, location, telephone number, and the nature of the incident are obtained. At that point, a recommendation block appears on the computer screen telling the telecommunicator which unit or units are appropriate for dispatch -- more than one unit may be indicated as appropriate. The telecommunicator may choose from the listed units. It is possible for a telecommunicator to manually override the computer and select another unit, although this practice is not "generally condoned" and must be "justified." Based upon the above facts, Advice of Counsel, No. 96 -589 was issued. Citing Confidential Opinion, No. 89 -007, the Advice initially noted that a non - profit corporation is within the definition of "business" as set forth in the Ethics Law. The Advice then applied the definition of "business with which he is associated" to conclude that the two providers which employ you as a paid EMT are businesses with which you are associated, but that the entity for which you are solely a volunteer EMT is not within that definition. McConahy, Advice of Counsel, No. 96 -589 at 4. Advice of Counsel No. 96 -589 then determined that dispatching an emergency service provider with which you are associated would present a potential conflict of interest for you: It would appear that conflicts of interest would arise routinely for you as to the two providers which are businesses with which you are associated. As a telecommunicator, you would necessarily have to make instant decisions to dispatch service providers for emergency services. In situations where these particular providers would be dispatched by you, whether as suggested by the computer or through an override of the computer, a conflict of interest would potentially exist. In dispatching these providers to provide ambulance services, you would be using the authority of your public employment and there would be a private pecuniary benefit in the nature of fees for such services resulting to the providers who are your private employers. Certainly, the requirements imposed by the Ethics Law in conflict of interest situations -- which in this case would include abstention and filing a written memorandum with the supervisor -- could present special practical and logistical problems given the emergency nature of the services and the immediate action required of a telecommunicator. It may be that meeting the requirements of the Ethics Law would impact upon your ability to function in the job. Nevertheless, these are the requirements. McConahy, Advice of Counsel No. 96 -589 at 4 -5. In your letter of September 20, 1996 by which you appealed Advice of Counsel No. 96 -589, you presented the following additional information. McConahv, 96 -006 November 6, 1996 Page 3 You believe that the determination of Advice of Counsel No. 96 -589 would place a significant hardship upon the 9 -1 -1 Centers and the citizens and municipalities that depend upon them. You state that at your Center alone, 16 out of 19 employees would have a conflict of interest which would necessitate their choosing between employment with the Center or affiliation with a service provider. You believe that having to make that choice would place the citizens who are served at a disadvantage. You state that every communication center with which you have contact across the Commonwealth would be affected by this Advice. People who are associated with both a center and an emergency provider dispatch those organizations on a daily basis. You further state that almost every center in the Commonwealth has set up pre- determined responses to incidents, including secondary responses, which are determined in most instances by the local municipalities with the County agreeing, as the dispatch service, to abide by their wishes. When a call arises for assistance to the public, the response is already decided. All the telecommunicator has to do is to follow that recommendation. If he /she should deviate from that recommendation without just cause, then he or she is at risk of disciplinary action and termination. You feel that a conflict of interest would exist if the telecommunicator would not accept the recommendation provided but would send a service of their choosing. However, as long as the telecommunicator is only following a pre - determined recommendation, you feel that the telecommunicator has not made that choice and no conflict of interest exists. It is your belief that if Advice of Counsel No. 96 -589 is left as stated, the citizens of the Commonwealth are going to be placed in jeopardy because knowledgeable, trained individuals will not be able to fully utilize their abilities. I11. DISCUSSION: Our review of an appeal from an advice of counsel is de novo. We must initially decide whether, in your capacity as a Communications Supervisor/ Telecommunicator for Mifflin County's 9 -1 -1 Center, you are a public employee subject to the Ethics Law. The term "public employee" is defined in the Ethics Law as follows: Section 2. Definitions "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person. McConahv, 96 -006 November 6, 1996 Page 4 65 P.S. §402. "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. The regulations of the State Ethics Commission similarly define the term public employee as above with the additional following criteria: (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of "public employee ": (A) The individual normally performs his responsibility in the field without onsite supervision. (B) The individual is the immediate supervisor of a person who normally performs his responsibility in the field without onsite supervision. (C) The individual is the supervisor of a highest level field office. (D) The individual has the authority to make final decisions. (E) The individual has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions. (F) The individual prepares or supervises the preparation of final recommendations. (G) The individual makes final technical recommendations. (H) The individual's recommendations or actions are an inherent and recurring part of his position. (I) The individual's recommendations or actions affect organizations other than his own organization. (iii) The term does not include individuals who are employed by the Commonwealth or a political subdivision of the Commonwealth in teaching as distinguished from administrative duties. (iv) Persons in the following positions are generally considered public employes: (A) Executive and special directors or assistants reporting directly to the agency head or governing body. (B) Commonwealth bureau directors, division chiefs or heads of equivalent organization elements and other governmental body department heads. McConahv, 96 -006 November 6, 1996 Page 5 51 Pa. Code § 1 1.1. (C) Staff attorneys engaged in representing the department, agency or other governmental bodies. (D) Engineers, managers and secretary- treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, administrative officers, housing and building inspectors, investigators, auditors, sewer enforcement officers and zoning officers in all governmental bodies. (E) Court administrators, assistants for fiscal affairs and deputies for the minor judiciary. (F) School superintendents, assistant superintendents, school business managers and principals. (G) Persons who report directly to heads of executive, legislative and independent agencies, boards and commissions except clerical personnel. (v) Persons in the following positions are generally not considered public employes: (A) City clerks, other clerical staff, road masters, secretaries, police officers, maintenance workers, construction workers, equipment operators and recreation directors. (B) Law clerks, court criers, court reporters, probation officers, security guards and writ servers. (C) School teachers and clerks of the schools. Based upon the facts which you have submitted, in your capacity as a Communications Supervisor /Telecommunicator for Mifflin County's 9 -1 -1 Center, you are a public employee subject to the Ethics Law for the following reasons. When multiple pre- approved emergency service providers are indicated as appropriate to dispatch, you exercise discretion by choosing from among them. In so doing, you are responsible for taking or recommending official action of a non - ministerial nature in an activity where your official action "has an economic impact of greater than a de minimis nature on the interests of any person." 65 P.S. §402. You make final decisions, your aforesaid actions are an inherent and recurring part of your position, and your actions affect organizations other than your own. Having established that you are a public employee subject to the Ethics Law, the remaining issues pertinent to your appeal shall now be addressed. As we have previously held (and as noted in the Advice), a non - profit corporation is a "business" within the meaning of that term as set forth in the Ethics Law. See, Confidential Opinion, No. 89 -007. The term "business with which he is associated" is defined in the Ethics Law as follows: McConahv, 96 -006 November 7, 1996 Page 6 Section 2. Definitions "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. 65 P.S. §402. Based upon the above definition, the two non - profit emergency service providers that employ you are businesses with which you are associated, but the third provider which you serve solely as a volunteer EMT is not within that definition. In applying Section 3(a) to the facts which you have submitted, although the Advice is correct in stating that dispatching your employers, whether as suggested by the computer or through an override of the computer, would present a potential conflict of interest for you (McConahy, Advice of Counsel, No. 96 -589 at 4), that is a general statement. It is our view that in light of the additional information which you have provided, Advice of Counsel, No. 96 -589 should be modified by applying Section 3(a) to each of the potential scenarios that you may face in performing your job duties, so as to more clearly define which instances would present a conflict of interest for you under the Ethics Law. There are conceivably three different scenarios that will arise for you in dispatching emergency service providers for the 9 -1 -1 Center. The first scenario is that the unit or units appearing in the recommendation block on the computer will be limited to the provider or providers that employ you. The second scenario is that your employer(s) will be included with other provider(s) appearing in the recommendation block. The third scenario is that the recommendation block will not include either of your employers. We shall discuss each of these scenarios in turn. As for the first scenario, where the recommended provider or providers are limited to your employer(s), we hold that you may dispatch such provider or providers without running afoul of Section 3(a) of the Ethics Law. This is because one of the requisite elements for a Section 3(a) violation -- specifically a use of the authority of your public position -- will be lacking. In following the pre - determined computerized selection, you will not be exercising any discretion. As for the second scenario, where your employer or employers will be among the recommended providers, but will not be the only recommended providers, we hold that pursuant to Section 3(a), you must select one of the other providers, that is, a provider that does not employ you. Turning to the third scenario, where your employers will not be among the providers appearing in the recommendation block on the computer screen, pursuant to Section 3(a), you may not override the system to select your employer(s). Such would clearly constitute a use of the authority of your public position to obtain a private pecuniary benefit, contrary to Section 3(a). We recognize that emergencies may arise which would justify a deviation from the procedures set forth above. In the event such justification exists, due to unforeseen contingencies, nothing should impede a prompt and effective emergency response. Advice of Counsel, No. 96 -589, is affirmed Da modified. McConahv, 96 -006 November 7, 1996 Page 7 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. IV. CONCLUSION: A Communications Supervisor /Telecommunicator for a County 9 -1 -1 Emergency Communications Center (9 -1 -1 Center), is a public employee subject to the Ethics Law. Not - for - profit emergency service providers which employ the Communications Supervisor /Telecommunicator as an Emergency Medical Technician (EMT) are businesses with which he is associated. An emergency service provider for which he is a volunteer EMT and for which he serves in no other capacity is not a business with which he is associated. Where the 9 -1 -1 Center has been computerized so that the computer indicates pre- determined appropriate units to dispatch, and the Communications Supervisor /Telecommunicator has had no involvement in making those pre- determinations, then Section 3(a) of the Ethics Law would not restrict the Communications Supervisor /Telecommunicator from dispatching his own employer or employers when the computerized system indicates that it or they are the only pre- determined appropriate units to dispatch. Under Section 3(a), the Communications Supervisor /Telecommunicator may not select his employer(s) either from among, or instead of, other recommended providers that appear as pre- determined appropriate units to dispatch, except where a deviation is justified based upon unforeseen contingencies requiring a prompt and effective emergency response. Advice of Counsel, No. 96 -589 is affirmed DI modified. 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. This letter is a public record and will be made available as such. Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty 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. Be Commission, aAttpAu6 etiA, Daneen E. Reese Chair