HomeMy WebLinkAbout464-R BoyerMr. David Boyer
c/o John E. Domalakes, Esquire
Rubright, Domalakes, Troy & Miller
Law Building
P.O. Box 9
Frackville, PA 17931 -0009
Re: 84 -131 -C
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
Order No. 464 -R
DECIDED MAR 1
MAILED ►riia
87
Dear Mr. Boyer:
The State Ethics Commission has received a complaint regarding you and a
possible violation of Act 170 of 1978. Hearing on the matter was held on
November 25 and 26, 1986, at which time relevant testimony and evidence was
received. The Commission has now completed its investigation. The individual
allegations, conclusions and findings on which those conclusions are based are
as follows:
I. Allegation: That you, a former employee of Schuylkill County and County
Administrator of the Rest Haven Nursing Home, violated Section 3(a) of the
Ethics Act, 65 P.S. 403(a), which prohibits a public official or public
employee from using his or her public office or confidential information
gained through that office to obtain financial gain other than compensation
allowed by law for himself, a member of his immediate family, or a business
with which he is associated and Section 3(b), 65 P.S. 403(b), which prohibits
a public official or public employee from accepting anything of value with the
understanding that his or her official vote /action or judgement will be
influenced when you participated in the county's decision to contract with
MEDIQ Incorporated to manage the Rest Haven Nursing Home and then became an
employee of MEDIQ and the administrator of that nursing home.
A. Findings:
1. You had been employed by Schuylkill County as Administrator of the Rest
Haven Nursing Home from 1977 to December 26, 1983, and, as such, are subject
to the requirements of the State Ethics Act.
Mr. David Boyer
Page 2
2. On December 15, 1983, the Schuylkill County Board of Commissioners voted
two -to -one to approve the execution of a contract between Mediq Incorporated
and Schuylkill County regarding the management of the Rest Haven Nursing
Home.
a. Commissioners William Willard and Edward Cook voted in the
affirmative.
b. Commissioner Albert Matunis voted against this contract in that he
believed that such action would commit .a new board of commissioners
to a four -year contract.
c. Commissioner Matunis believed that the incoming board of
commissioners should have some input into this matter.
d. The above referenced action took place at a public meeting of the
board of commissioners on December 15, 1983 at 10:30 a.m.
3. Prior to entering into the management contract with Mediq Incorporated,
the Schuylkill County Board of Commissioners took the following actions
relating to a contract for an automated financial system at Rest Haven Nursing
Home as reflected in the minutes of the commissioners meetings:
a. December 31, 1981: By a two -to -one vote, the county commissioners
approved the execution of an agreement with Medical Billing
Associates for an automated financial system.
b. January 7, 1982: In response to a question by a citizen as to why
other firms had not been solicited for the medical billing contract,
Chairman Cook stated that representatives from Medical Billing had
presented a proposal to the full board of commissioners and this
system was required.
c. August 18, 1983: On motion by Commissioner Willard, second by
Commissioner Cook, the agreement with Medical Billing Associates for
accounting services (an automated financial system) at Rest Haven was
extended for two years beginning January 1, 1984 at an annual cost of
$240,000.
4. Sometime during the fall of 1983, Medical Billing became a subsidiary
of MEDIQ Inc.
5. Gary Scheib, the Vice President of Management Services for Mediq
Incorporated in 1983, testified as follows regarding the management contract:
Mr. David Boyer
Page 3
J. •
a. He first contacted the Schuylkill County Commissioners' Office in
January, 1983 when MEDIQ was interested in getting a contract at the
Ashland Hospital. He spoke to Mr. Edward Cook, Chairman of the
County Commissioners at that time.
b. Scheib had contacted Cook to introduce himself and to attempt to
garner local support for Mediq Incorporated.
c. On September 28, 1983, a dinner meeting was held with Mr. Scheib,
William Adams of Medical Billing, Edward Cook, Robert Matthews,
County Solicitor Frederic Hobbs, and William Murry.
d. You were not present at this meeting.
e. During this meeting, Mr. Scheib asked to explain the type of business
in which Mediq was engaged and Mediq's approach regarding the
management of health care facilities.
f. This meeting took place prior to any request for proposals being
initiated by the County.
g. In October, 1983, Mediq Incorporated received a request for proposal
relating to the management of the Rest Haven Nursing Home.
h. Mediq, thereafter, requested to and did review the Rest Haven
facilities in an effort to respond to the request: Mediq prepared
and submitted a proposal.
i. On November 29, 1983, Mr Scheib met with you and solicitor Hobbs to
discuss two primary areas of the Mediq proposal as follows:
1. A guarantee of fees.
2. Whether the administrator position and assistant administrator
positions would be placed directly on the Mediq payroll or
whether the salaries of these positions would be passed through
to the county.
From Mr. Scheib's perspective, Mr. Hobbs was the negotiator of the
contract.
k. The administrative positions were placed on Mediq's payroll.
Mr. David Boyer
Page 4
1. During the discussions regarding the administrator position you
inquired as to what Mediq paid an Administrator. Mr. Scheib stated
that you did not ask him for a position of employment.
m. Prior to the meeting of November 29, 1983, solicitor Hobbs contacted
Mr. Scheib regarding the Mediq proposal.
Mr. Scheib testified that:
"And during one of those phone calls to me concerning those
questions, he asked if Mediq would consider David Boyer
being administrator of Rest Haven should we be granted the
contract, and I do recollect the specific words. He went
on during that same conversation, he used the term this is
not a quid pro quo for you receiving the contract. I just
would like to know if you would consider hirn."
Q What was your response?
A My response was that we would consider him, assuming
that he had met all the qualifications that we would
look for in a new administrator who we place in this
type of a facility. I went on to elaborate that
those qualifications were sufficient education and
not necessarily BS, but sufficient education as a
basis for that type of position. He certainly is
licensed. You need to be a licensed nursing home
administrator and he would need several years'
experience. I think I used three years as a typical
basis that we'd use."
n. You contacted Mr. Scheib on December 15, 1983, to advise him that
the contract to Mediq had been approved. During this conversation,
Mr. Scheib asked you if you would be interested in the position of
administrator. This was the first time Mr. Scheib discussed
employment with you.
o. Further discussions regarding your employment with Mediq were held on
December 19, 1983, and a formal offer of employment was forwarded on
December 20 or 21, 1983.
p. Mr Scheib testified that it is not standard practice for Mediq to
retain the former administrator to continue managing facilities Mediq
has under contract although such has been done in the past.
Mr. David Boyer
Page 5
q. Your employment with Mediq was only in relation to the Rest Haven
management contract and you were not offered employment in any other
capacity by Mediq.
r. Mr. Scheib testified that you never offered to recommend Mediq to the
Commissioners in return for a position of employment.
s. The administrator hired by Mediq for Rest Haven management contract
would perform the same functions as performed by you as a county
employee.
6. Edward Cook, former Schuylkill County Commissioner, testified as follows
regarding the Schuylkill County contract with Mediq Incorporated.
a. He served as Schuylkill County Commissioner from 1976 to 1983 and
also served as Chairman of the Board of County Commissioners.
b. During the summer of 1983, the Schuylkill County Board of
Commissioners discussed the possibility of obtaining a professional
management firm to assume responsibilities of Rest Haven Nursing
facility management. Mr. Cook had been contacted in early 1983 by
representatives of Mediq who were, at that time, managing the Ashland
State Hospital.
c. In September of 1983, Mr. Cook contacted representatives of Mediq and
requested that they review the Rest Haven facility in order to
determine the feasibility of managing that institution.
d. Subsequent to reviewing the facility, a dinner meeting was held in
September of 1983 with the representatives of Mediq Incorporated.
You were not present at that meeting.
e. Subsequent to that meeting, you were instructed by Edward Cook to
solicit proposals for the management of the Rest Haven Nursing
facility. Mr. Cook advised you to obtain four or five proposals from
perspective management firms and he specifically advised you to
obtain a proposal from Mediq Incorporated.
f. The commissioners instructed you to obtain proposals from management
fires on October 6, 1983, during a public meeting of the county board
of commissioners. You had also been instructed, prior to this
meeting, that the proposals were going to be solicited and as a
result, the request for proposals were dated October 5, 1983. A day
before the county commissioners officially authorized you to solicit
said proposals.
Mr. David Boyer
Page 6
g. Proposals were received during the end of November and beginning of
December and reviewed by Mr. Cook. Mr. Cook was leaning strongly
toward approving a contract with Mediq.
h. Mr. Cook informed the other county commissioners as well as you and
other employees of the county on December 13, 1983, that Mediq would
be receiving the contract for the management of the Rest Haven
Nursing Home. This was not a public meeting. Mr. Cook had made this
decision prior to the December 13, 1983 meeting.
i. Mr. Cook did not wish to meet with or discuss the proposed contract
with any other firms. Mr. Cook was not interested in the proposals
of the other firms and had decided that Mediq would be the nursing
home contractor.
j. You were aware of Mr. Cook's decisions as early as December 13, 1983.
During the December 13, 1983 meeting, you were instructed by Mr. Cook
to recommend the county's hiring of Mediq at the December 15, 1983
meeting. As a result, you recommended that the contract be entered
into by the county on December 15, 1983 during a public meeting with
the board of commissioners.
k. Mr. Cook was not aware of whether you were being considered for a
position of employment by the Mediq Corporation.
1, Mr,. Cook originally testified that if Mediq had provided their own
administrator for the Rest Haven Nursing Home, that individual would
be performing the same duties and functions that you were responsible
for and that your position of employment would be terminated. Mr.
Cook subsequently testified that he could not really indicate whether
you would be terminated in light of the fact that there would be a
new board of county commissioners and such would be their decision.
7. William H. Willard served as a Schuylkill County Commissioner from 1976
to 1983. Willard testified as follows:
a. He reviewed the proposals for the management of the Rest Haven
Nursing Home at the meeting of December 15, 1983. He determined that
Mediq had presented the best of the proposals offered.
b. Nothing else influenced him in his decision to award this contract to
Mediq.
Mr. David Boyer
Page 7
c. He did not review the request for proposals that were forwarded to
perspective management firms.
8. Albert Matunis served as a Schuylkill County Commissioner from 1970 to
1984. Mr. Matunis testified as follows:
a. You were authorized to seek proposals for the management of the Rest
Haven Nursing Home. Mr. Matunis never saw any of the proposals until
t'- -4 r d of c3ntract to Med He never attended sessions with Mediq. ttend,d any
b. At the meeting of December 15, 1983, you recommended that the
county hire Mediq Incorporated to manage the Rest Haven Nursing
facility.
c. You had made recommendations to the county board of commissioners,
in the past, regarding Rest Haven Nursing Home.
9. Rose Marie Blum, owner of H. Troy Hospital Services, a medical staffing
and management company, submitted a proposal to Schuylkill County for the
management of Rest Haven Nursing Home in 1983.
a. Ms. Blum, upon receipt of a request for proposal, contacted the Rest
Haven Nursing Home in order to arrange to review the facility. A
proposal was submitted as a result thereof.
b. Ms. Blum stated that you permitted her company employees to review
the facility and were cooperative in this effort.
10. Steven Guillard, President of Diversified Health Services of Plymouth
Meeting, Pennsylvania, a professional health care management company,
submitted a proposal to manage the Rest Haven Nursing facility in 1983. Mr.
Guillard testified as follows:
a. Mr. Guillard learned of the request for proposals through an
individual with whom he was acquainted. This contact occurred on
November 1, 1983.
b. As a result, Mr. Guillard contacted you personally and requested the
opportunity to present a proposal for the management of the Rest
Haven Nursing facilities. Mr. Guillard met personally with you and
as a result of that meeting, submitted a proposal.
c. During the course of Mr. Guillard's meeting with you, he was
advised that if at some point in time there would be meetings with
Mr. David Boyer
Page 8
d. The proposals submitted by Mr. Guillard included the cost for fees,
professional expenses, salaries and fringe benefits for five
employees including an administrator and an assistant administrator.
Appreximately- two weeks : submission the proposal, Mr.
Guillard contacted you and was informed at that time by you, that
there would In no action taken by the Schuylkill County Board of
Commissioners until after the first of the year. Mr. Guillard
subsequently learned that the contract had been awarded to Mediq
through a local publication.
f. Mr. Guillard testified that you did not solicit employment with his
firm and no one solicited such employment on your behalf.
g. Mr. Guillard testified that there are occasions when a management
firm will retain the services of the current administrator. Such is
usually done with the concurrence of the county board of
commissioners.
the county commissioners, he would have the opportunity to explain
the parameters of his proposal. No such meeting with the county
commissioners ever occurred.
11. Robert Smith, an employee of Susquehanna American Associates
Incorporated in 1983, was involved in that company's submission of a proposal
to the Schuylkill County Board of Commissioners for the management of the Rest
Haven Nursing Home. Mr. Smith testified as follows:
a. In 1983, Susquehanna American Associates received a request for
proposal regarding the above facility. As a result of said receipt,
contact was initiated with you.
b. A site review was conducted of the nursing facility and a proposal
was submitte-' shortly thereafter.
c. Mr. Smith asked if it would be appropriate to make a presentation
directly to the county commissioners and was advised by you that such
would not La ne essary. Mr. Smith's proposal was limited to the
management of the business office and general consultations
throughout the facility. Mr. Smith advised that his proposal was
limited to such areas rather than including an overall mangement
contract in that this was explained as not being a management
contract.
Mr. David Boyer
Page 9
d. You had advised him that the contract would be for a specific
management area rather than for an overall management contract.
During conversations with you, Mr. Smith indicated that you indicated
that you would be staying on as the nursing facilities administrator
because the proposal, rather than being an overall management
proposal would be a consultation and support proposal.
12. Frederick Hobbs served as the Schuylkill County Solicitor from 1977
until 1983. Mr. Hobbs testified as follows:
a. In September, 1983, he attended a dinner meeting with Mr. Cook, Mr.
Scheib, Mr. Matthews, and Mr. Adams. The purpose of this meeting was
to discuss the possibility of Mediq Incorporated taking over the
mangement of the Rest Haven Nursing Home.
b. Approximately one week after that meeting, the county commissioners
instructed you, at a public meeting, to obtain proposals from
management firms regarding the operation of the Rest Haven Nursing
Home.
c. Mr. Hobbs testified that when he left the meeting in September, 1983,
his distinct impression from Chairman Cook was that if anyone was
going to manage Rest Haven Nursing Home, it would be Mediq. Mr.
Hobbs further indicated that the purpose for seeking other proposals
was "window dressing."
d. Mr. Hobbs began negotiations with Mediq in reference to the
management contract in November of 1983. Mr. Hobbs reviewed three or
four of the proposals in a matter of 15 minutes but did not seriously
consider those proposals in light of the fact that Ed Cook had made
his decision as to who would manage the nursing home as early as
September.
e. Hobbs testified that he did relate to you his impression that Mr.
Cook was going to award the contract to Mediq. Mr. Hobbs testified
that it was his impression that you knew that Mediq was going to be
obtaining the contract prior to the actual award thereof.
f. Mr. Hobbs testified that he beleived you knew that Mediq would
be getting the contract as early as October, 1983.
g. Mr. Hobbs testified that he negotiated the contract with Mediq and
that you did not negotiate the contract. As part of these
negotiations, Mr. Hobbs indicated•that it was his idea to have the
Mr. David Boyer
Page 10
administrator and assistant administrator on the payroll of Mediq
Incorporated. He believed that this would be appropriate in order to
allow these individuals to function independent of the political
pressures that could be asserted upon them by the county board of
commissioners. These negotiations took place in November of 1983.
h. Mr. Hobbs testified that he questioned Gary Scheib, the
representative of Mediq, as to whether that company would consider
hiring you as the administrator. Mr. Scheib responded that if you
were qualified, you would he considered. A few days after that
conversation with Mr. Scheib, Mr. Hobbs told you of this conversation
and the possibility of employment with Mediq.
i. Several nights prior to the December 15, 1983 public meeting of the
county board of commissioners, an executive session meeting was held
with Mr. Cook. Mr. Hobbs attended along with you, Mr. Cerullo, the
Assistant County Solicitor, Robert Hoppe, Financial Administrator of
the County and Representatives of Mediq Incorporated. You were
rrstructed, at this time, to recommend the award of the contract to
Mediq during the next public meeting of the county board of
commissioners. Mr. Hobbs testified that Mr. Cook instructed you to
act in this way. Mr. Hobbs further testified that your
recommendation had no legal affect.
13. David Kerns served as the Schuylkill County Controller in 1984.
a. Mr. Kerns investigated the contract between Mediq and Schuylkill
County Board of Commissioners.
b. Mr. Kerns determined and issued a statement that the contract was
legal because it had been recommended by an officer who had an
interest in the contract.
Mr. Kern's investigation did not concern any allegations regarding
the State Ethics Act. Mr. Kern's investigation related solely to the
county code.
14. Robert Hoppe served as the County Financial Administrator in 1983 and
testified as follows:
a. He attended a meeting on December 13, 1983 with the Schuylkill County
Board of Commissioners, you, Mr. Hobb, Mr. Kane, and Mr.
Cerullo.
Mr. David Boyer
Page 11
b. Mr. Hoppe testified that during that meeting, Mr. Cook made the
statement that the contract would be awarded to Mediq and that the
decision had been made.
c. Mr. Hoppe testified that during the course of this meeting, he
commented to you as follows in relation to the position of
administrator with Mediq: "You probably have the job already, or you
probably have been promised the job already and your reply to that
question was yes."
d. Mr. Hoppe testified that the fact that `Mediq was going to be awarded
the contract on December 15, 1983, was not common or public
knowledge. Mr. Hoppe did testify, however, that he did not feel
obligated to keep this issue a secret.
15. You testified as follows:
a. You have been a licensed nursing home administrator from 1977. You
served as the administrator of the Rest Haven Nursing Home in
Schuylkill, Pennsylvania from August, 1977 until September, 1985.
Your salary in that position in 1983 was $33,000 per year.
b. You were hired by Mediq Incorporated to be the administrator of the
Rest Haven Nursing facility starting on December 26, 1983. You
agreed to their offer of employment on December 19, 1983 at a salary
of $36,000 per year. You also received a bonus for your service to
Mediq in 1984.
c. You made a recommendation to the county board of commissioners on
December 15, 1983, that the commissioners enter into a contract with
Mediq Incorporated for the management at Rest Haven Nursing Home.
You indicated that you made this recommendation at the instructions
of the Chairman of the Board of County Commissioners, Edward Cook.
d. You were not present at a dinner meeting in September of 1983,
attended by County Commissioner Cook and the representatives from
Mediq Incorporated.
e. The week of October, you were instructed by County Commissioner Cook
to prepare requests for proposals for the management of the Rest
Haven Nursing Home. That letter was prepared prior to October 6,
1983, and at a meeting of the county commissioners on that date, you
were formally instructed, during a public meeting, to solicit
proposals.
Mr. David Boyer
Page 12
f. You did not believe that your making of the recommendation on
December 15, 1983, had any affect on the board of commissioners.
g. You were informed to make the recommendation regarding Mediq on
December 13, 1983, by Mr. Cook. You admit that Solicitor Hobbs
advised you that he had asked a representative of Mediq if they would
consider you for the position of administrator. You indicated that
you advised Hobbs that you were not sure whether you would be
interested in that position if such was offered.
h. You advised that on December 13, 1983,1obert Hoppe made a statement
to you indicating that "you'll probably be around for a while" and
you responded "yes, I probably will be for a while." You advised
that you made this statement because you believed that there was no
one who could take over the position that you then had at the county
level and that your services would be necessary in order to continue
effective operations. You, therefore, determined that even if the
contract would be approved, the county would keep you on for a while
until Mediq obtained its own person as its administrator. You
indicated that you questioned the representatives of Mediq as to how
much they had paid their administrators sometime in November of 1983.
This question was posed, you indicate, in order to obtain appropriate
financial data to view the contract proposals of Mediq. You advise
that Mr. Hobbs had requested this information as part of his contract
review process.
i. You testified that around the end of November, it appeared to you
that Mr. Cook favored Mediq and that the process of dealing with
other potential contractors was window dressing.
j. You testified that proposals were due November, 1983. Your
conversation with Steven Guillard occurred sometime prior to that
date. During your conversation with him, you had a reasonable
expectation that Mediq would be obtaining the contract. You were,
therefore, aware as early as the first week of November, that Mediq
would be the selected vendor.
16. George Edward Jones served as the county solicitor in 1984. Mr. Jones,
at the request of the county commissioners then in office, conducted an
investigation and a review of the facts regarding the Mediq contract.
a. Mr. Jones concluded that the contract was not in violation of the
county code.
Mr. David Boyer
Page 13
b. Mr. Jones' investigation did not review or consider any provisions of
the State Ethics Act.
17. You testified that on December 15, you called Mediq to advise them
about the contract award and that is when you first discussed the possibility
of employment with them.
18. You testified that on December 15, 1983, immediately after the public
meeting at which the contract was awarded to Mediq, you were leaving that
meeting when a number of reporters and members of the news media approached
you in relation to the award of the contract.
a. You further testified that as soon as you left the board room from
that meeting, reporters asked you the question regarding whether you
would have been retained as administrator no matter who received the
contract.
b. On December 16, 1983, a news article appeared in a local county
publication indicating that you would be leaving your position as
administrator of the Rest Haven Nursing Home and assuming a position
of employment with Mediq Incorporated.
19. Edward Cook provided a sworn deposition in the case of Mediq Management
Services, Incorporated v. Donald Kerns.
a. As part of his deposition, Mr. Cook testified that Mr. Boyer made the
recommendation at the commissioners' meeting for the acceptance of the
Mediq contract. Mr. Cook was then asked "did you base your decision
on Mr. Boyer's recommendation? No, not wholly."
20. Certified minutes of the Schuylkill County Board of Commissioner meetings
reflect as follows:
a. April 18, 1983 - In re: Rest Haven agreement executed with Medical
Billing; it was moved by Commissioner Willard, seconded by
Commissioner Cook to execute an agreement with Medical Billing
Associates, Feasterville, Pennsylvania for accounting services at
Rest Haven. The tern of the agreement is two years, beginning
January 1, 1984, at a cost of $240,000 per year. Vote: Cook, Aye;
Willard, Aye; Mutunis, abstained. Motion adopted. (Note: Medical
Billing Incorporated was an entity owned by William Adams. This
company was later acquired by Mediq Incorporated).
Mr. David Boyer
Page 14
b. October 6, 1983 - In re: Rest Haven board to explore possibility of
hiring administrative management firm. David Boyer, Rest Haven
administrator, was present at today's meeting. He recommended the
board explore the possibility of hiring an administrative management
firm for Rest Haven. He stated a firm with expertise in management
of long term care facilities could assist the county in the
replacement of the 1912 building. Mr. Boyer added the replacement of
this building is badly needed since each year Rest Haven looses beds
for non - compliance with State regulations. The cost for such a firm
at Rest Haven would be 90% reimburseable through 3rd party payers.
Chairman Cook suggested Mr. Boyer contact several firms to see what
they would propose for Rest Haven and report back to the board.
Commissioner Matunis stated that although he agrees a management firm
would benefit at Rest Haven, he does not feel a firm should be hired
right now since the present board of commissioners will only be in
office until the end of the year. It was moved by Commissioner
Willard, seconded by Commissioner Cook to authorize Mr. Boyer to
contact firms for the management of Rest Haven and report back to the
commissioners with a report. Vote: Cook, Aye; Willard, Aye;
Matunis, Aye. Motion adopted.
c. December 15, 1983 - "In re: Rest Haven contract approved with Mediq
Incorporated for management of Rest Haven. David Boyer, Rest Haven
administrator, presented a statement regarding the Rest Haven
facility." You outlined specific attributes of Mediq Incorporated
anc' the need for a management firm to operate the Rest Haven Nursing
faclity. You also presented a four -year contract schedule. You
stated that Mediq will pay the administrator's salary and will
appoint an assistant administrator for financial affairs at the home.
You specificly stated as follows pursuant to the minutes: "Because
of the urgent need to begin development of a solution of this
problem, requests for proposals were sent by the Home and review of
each has been conducted. As a result, a qualified firm with both
project management and facility management expertise is being
recommended to direct the home in resolving this dilemma." It was
moved by Commissioner Willard seconded by Commissioner Cook to
approve the contract with Mediq for management services at Rest
Haven. Commissioner Matunis stated he agrees this should be done,
however, he objects to this being done now. He felt that this would
tie down the new board of commissioners to a four -year contract. He
added the new board should have input before action is taken. Vote:
Cook, Aye; Willard, Aye; Matunis, No, motion adopted.
Mr. David Boyer
Page 15
d. December 20, 1983 - In re: Rest Haven contract for management
services - Matunis requests action rescinded. Commissioner Matunis
made a motion to rescind the contract executed on Thursday, December
15, with Mediq Incorporated for management services for Rest Haven.
He stated he received a copy of the proposal on December 19 and
referred to a portion of the proposal which states that the programs
outlined in the proposal can be developed and implemented over a
four -year period at. Rest Haven only with the committment of the
county commissioners. Commissioner Matunis stated he did not feel
the board could give such a committment without reviewing the entire
proposal. Commissioner Willard stated the action would be taken in
recommendation of the administrator. Commissioner Matunis stated he
is considering legal action regarding the action of the board
regarding the Mediq contract. Chairman Cook called for a second to
the motion on the floor. No second, motion died.
e. December 29, 1983 - In re: Rest Haven; Boyer resignation. It was
moved by Commissioner Willard, second by Commissioner Cook, to accept
the resignation of David Boyer, Rest Haven Administrator, effective
December 26. Vote: Cook, Aye; Willard, Aye; Matunis, Aye. Motion
adopted.
21. On or about September 19, 1984, you responded, in writing, to Donald
Kerns, then controller of Schuylkill County. Mr. Kerns had requested that you
answer certain questions regarding the award of the contract to Mediq.
a. In response to the question seeking the identity of all parties
involved in negotiations of the contract between Mediq and the
courtyic you Hrebs v nded, in par , as follows: "For Schuylkill County,
avid Boyer."
b. During your testimony before the State Ethics Commission, you stated
that you were not the negotiator for this contract but that you were
only helping Mr. Hobbs by soliciting information from the Mediq
representatives and then transferring that information to him.
c. In response to a question seeking the identity of the person or
persons who made the recommendations to the Commissioners that Mediq
be hired, you responded; "David Boyer made recommendation at the
County Board of Commissioners' meeting on November 15, 1983, only
after being assured by the county solicitor that the contract was
legal in substance."
d. You testified before the State Ethics Commission that while you did
not indicate so in your response to Mr. Kerns, you had only
recommended Mediq at the instruction of Edward Cook.
Mr. David Boyer
Page 16
e. In response to the question as to when the County Commissioners were
informed that you would be hired by Mediq as administrator under the
contract, you responded that you were unaware when Mediq informed the
commissioners that you would be hired as administrator under the
contract.
f. In response to the question as to when you agreed with Mediq that you
would accept employment under the contract with Mediq, you responded
December 19, 198 ?.
22. In response to interrogatories by Controller Kerns, Robert Hoppe
forwarded a statement on August 30, 1984, to Mr. Kerns. As part of that
statement, Mr. Hoppe indicated that he had asked you if other firms had been
contacted and proposals solicited. Mr. Hoppe advised that three other firms
had been contacted and the proposals received. Mr. Hoppe, thereafter, asked
you if bascd upon a review of the proposal, Mediq's management agreement to
perform services was the most competitive of the proposals received and your
response was yes.
23. The letter requesting the submission of proposals by'interested firms to
the Schuylkill County Board of Commissioners was dated October 5, 1983. This
was one day prior to the official authorization by the commissioners for
the solicitation of said proposals.
B. Discussion: As the County Administrator for the county nursing home, you
are clearly a public employee as that term is defined in the State Ethics Act.
65 P.S. §402. See also 51 Pa. Code §1.1. As such, your conduct must conform
to the requirements of the State Ethics Act.
Generally, tile State.,E.t•hics•Act provides as follows.: .- .
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).
Within the above provision of law, no public official or employee may
use his public position or any confidential information obtained through
that public position in order to obtain any financial gain for himself. In
addition to the foregoing provision of law, the Ethics Act provides that:
4
Mr. David Boyer
Page 17
Section 3. Restricted activities.
(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).
Specifically, included in the above restriction, is that there may be no
offer or acceptance of anything of value including a future employment promise
based on the understanding that the official's action or judgment would be
influenced thereby.
The evidence and testimony as outlined above indicate that the decision
to hire Mediq Incorporated was made long before the December 15, 1983 meeting.
This decision had been specifically made by Chairman Cook and all of the
procedures that followed were "window dressing" as stated by a number of
witnesses. While you were aware of Cook's decision to award the contract to
Mediq as early as November, there is no indication that this information was
considered confidential. In fact, a number of individuals were aware of the
Cook decision. Robert Hoppe, the financial administrator of the County,
specifically testified that he did not consider this information
confidential.
In addition to the foregoing, we have found no evidence that you
solicited or were offered any position with Mediq prior to the award of the
contract on December 15, 1983. The only information regarding this issue
relates to the statement of Mr. Heppe wherein he averred that two days prior
to the award of the contract, you had indicated to him that you would be
remaining as the administrator of the Nursing Home and that you had a position
with the incoming company. You confirmed that such a conversation did in fact
take place, however, you assert that you merely indicated to Mr. Hoppe that
you would be remaining as administrator until the contract was effectively
being administered.
We do not, however, believe that this one statement is sufficient to
warrant a finding that the act has been violated.
Mr. David Boyer
Page 18
In light of all the available information, we are unable to find
a violation of the State Ethics Act.
C. Conclusion: Based upon all of the available information, were are unable
to find a violation of the State Ethics Act in the instant situation.
Our files in this case will remain confidential in accordance with Section
8(a) of the Ethics Act, 65 P.S. §408(a). However, this Order is final and
will be made available as a public document 5 business days after service
(defined as mailing).
Any person who violates the confidentiality of a Commission proceeding is
guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned
for not more than one year or both, see 65 P.S. §409(e).
By the Commission,
G. Sieber Pancoast
Chairman