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HomeMy WebLinkAbout00-615 FetterhoffWilliam A. Fetterhoff, Esquire Fetterhoff and Zilli Attorneys at Law 200 N. Third Street, Suite 800 P. O. Box 1161 Harrisburg, PA 17108 -1161 Dear Mr. Fetterhoff: ADVICE OF COUNSEL October 16, 2000 00 -615 Re: Conflict; Public Official /Employee; County; Deputy Mental Health Administrator; Mental Health and Mental Retardation Program; Executive Director; Capital Area Behavioral Health Collaborative, Inc.; Contract; Sukay, Advice 00 -521. This responds to your letter of September 13, 2000 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. §1101 et seq., presents any prohibition or restrictions upon a county deputy mental health administrator with regard to serving as the executive director of a non - profit corporation formed by his county and 4 other counties to execute responsibilities under the HealthChoices Program, where the individual in question would remain a salaried employee of the county which currently employs him. Facts: You request an advisory from the State Ethics Commission on behalf of the following: the Dauphin County Mental Health and Mental Retardation ( "MH /MR ") Program; the Capital Area Behavioral Health Collaborative, Inc. ( "CABHC "); and Mr. Scott Suhring, the Deputy Mental Health Administrator of the Dauphin County MH /MR Program. You have submitted facts which may be fairly summarized as follows. The Dauphin County MH /MR Program is a statutory agency of Dauphin County under the Mental Health and Mental Retardation Act of 1966, 50 P.S. § §4301 -4305. It is also a member of a five - County consortium which has formed the CABHC, a non - profit corporation. The CABHC is a wholly controlled entity of the five participating County governments— Dauphin, Lancaster, Lebanon, Cumberland, and Perry. You state that the legal control of CABHC by the participating Counties is assured by the fact that the Board of Directors of CABHC consists of the administrators and senior staff of the participating County MH /MR and Drug and Alcohol (D &A) Programs. Joseph Roynan, who is the Fetterhoff, 00 -615 October 16, 2000 Page 2 Administrator of the Dauphin County MH /MR Program, is a member of the Board of Directors of CABHC and is also its current Chair. The Executive Director of CABHC is responsible to conduct the affairs of the entity consistent with the directions of the participating County governments, County MH /MR Programs, and County D &A programs as expressed by and through the Board of Directors of CABHC. Each of the five participating Counties will contract with CABHC to assure the provision of behavioral health services funded under the HealthChoices Program and administered by the Pennsylvania Department of Public Welfare through local county governments. The sole function of the CABHC and its Executive Director will be to execute the responsibilities of the five Counties under the HealthChoices Program. Scott Suhring ( "Suhring "), the Deputy Mental Health Administrator of the Dauphin County MH /MR Program, has applied for employment as Executive Director of CABHC. You initially broached the prospective employment of Suhring as the CABHC Executive Director in a letter dated March 30, 2000, by which you unsuccessfully attempted to obtain "clarification" of a prior related Advice of Counsel, Sukay, Advice 00- 521 issued February 17, 2000. At that time, the scenario which you posed was that Suhring would leave employment at the Dauphin County MH /MR Program for immediate employment as Executive Director of CABHC, in which latter capacity he would interact with Dauphin County, the Dauphin County MH /MR Program, or the Administrator of the Dauphin County MH /MR Program. The new scenario which you are now posing for review is as follows. The five Counties, acting together through the CABHC, have agreed that Dauphin County will assign Suhring to serve as Executive Director of CABHC. Suhring will remain a Dauphin County employee and will continue to receive his salary and benefits from Dauphin County. You state that Suhring's civil service status will not change. Suhring's salary will be set by the CABHC Board of Directors, and Dauphin County will be reimbursed by each of the other four participating Counties for their respective shares of that salary. Act. You ask whether the above - described arrangement would comply with the Ethics Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. § §1107(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, 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 Pa.C.S. §1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Deputy Mental Health Administrator of the Dauphin County MH /MR Program, Suhring is a public employee as that term is defined in the Ethics Act, and hence he is subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides as follows: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. Fetterhoff, 00 -615 October 16, 2000 Page 3 65 Pa.C.S. §1103(a). The following terms pertaining to Section 1103(a) are defined in the Ethics Act as follows: § 1102. 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. The term 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. "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 has a financial interest. 65 Pa.C.S. §1102. In addition, Sections 1103(b) and 1103(c) of the Ethics Act 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 judgment 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 1103(f) of the Ethics Act provides as follows: § 1103. Restricted activities (f) Contract. - -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 Fetterhoff, 00 -615 October 16, 2000 Page 4 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. 65 Pa.C.S. §1103(f). The following terms pertaining to Section 1103(f) are defined in the Ethics Act as follows: § 1102. Definitions "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. The term 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. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. 65 Pa.C.S. §1102. Section 1103(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official /public employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an "open and public process" be observed as to the contract with the governmental body. Pursuant to Section 1103(f), an "open and public process" includes: (1) prior public notice of the employment or contracting possibility; Fetterhoff, 00 -615 October 16, 2000 Page 5 (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered; and (4) public disclosure of the contract awarded and offered and accepted. Section 1103(f) of the Ethics Act also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. Section 1103(j) of the Ethics Act provides as follows: § 1103. Restricted activities (j) Voting conflict. - -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. 65 Pa.C.S. §1103(j). In each instance of a conflict, Section 1103(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 Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. The above provisions of the Ethics Act shall now be applied to your inquiry, beginning with Section 1103(a) of the Ethics Act. Subject to certain exceptions delineated in the definition of "conflict" or "conflict of interest" above, it is a conflict of interest under Section 1103(a) of the Ethics Act for a public official /public employee to use the authority of public office /employment or Fetterhoff, 00 -615 October 16, 2000 Page 6 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. In each instance of a conflict of interest, the public official /public employee would be required to abstain fully and to fully satisfy the disclosure requirements of Section 1103(j) set forth above. The facts which you have submitted identify Suhring as the already agreed -upon choice for Executive Director of the CABHC. The submitted facts do not reveal whether Suhring has used the authority of his current public position, or confidential information obtained by being in that position, for his own private pecuniary benefit through this employment opportunity. If he has, the acceptance of the position would complete the elements for a conflict of interest contrary to Section 1103(a) of the Ethics Act. See, Vilim, Advice 96 -502, If the facts are such that the elements for a conflict of interest do not exist, Section 1103(a) of the Ethics Act would not preclude Suhring's acceptance of the position. Whatever the missing facts may be, they would clearly constitute past conduct so as to preclude an application of the Ethics Act to them in an advisory, which may only address future conduct. See, 65 Pa.C.S. § §1107(10), (11). Assuming that Section 1103(a) of the Ethics Act would present no bar, the requirements of Section 1103(f) of the Ethics Act as set forth above would have to be satisfied as to the hiring /appointment of Suhring as Executive Director of the CABHC. The Executive Director position is a different or additional employment position with Dauphin County than that which Suhring currently holds as Deputy Mental Health Administrator of the Dauphin County MH /MR Program. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the County Code. Conclusion: As Deputy Mental Health Administrator of the Dauphin County Mental Health and Mental Retardation ( "MH /MR ") Program, Scott Suhring ( "Suhring ") is a public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. The submitted facts, which identify Suhring as the already agreed -upon choice for Executive Director of the Capital Area Behavioral Health Collaborative, Inc. ("CABHC")--a non - profit corporation formed by a consortium of five Counties including Dauphin County to execute their responsibilities under the HealthChoices Program - -do not reveal whether Suhring has used the authority of his current public position, or confidential information obtained by being in that position, for his own private pecuniary benefit through this employment opportunity. If he has, the acceptance of the position would complete the elements for a conflict of interest contrary to Section 1103(a) of the Ethics Act. If the facts are such that the elements for a conflict of interest do not exist, Section 1103(a) of the Ethics Act would not preclude Suhring's acceptance of the position. Assuming that Section 1103(a) of the Ethics Act would present no bar, the requirements of Section 1103(f) of the Ethics Act as set forth above would have to be satisfied as to the hiring /appointment of Suhring as Executive Director of the CABHC. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), an 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, provided the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. Fetterhoff, 00 -615 October 16, 2000 Page 7 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. 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 §13.20. 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. Sincerely, Vincent J. Dopko Chief Counsel