Loading...
HomeMy WebLinkAbout96-576 RupeSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL Joseph E. Sikorsky County Solicitor County Commissioners of Mifflin County 20 North Wayne Street Lewistown, PA 17044 July 31, 1996 96 -576 Re: Conflict, Public Official /Employee, County, 9 -1 -1 Emergency Service Center, Telecommunicator, Business With Which Associated, For Profit, Ambulance Service. Dear Mr. Sikorsky: This responds to your letter of June 18, 1996 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law would present any prohibition or restrictions upon a telecommunicator for a County 9 -1 -1 Emergency Service Center, who in his private capacity, is half owner and General Manager of one of the ambulance services that is dispatched by the telecommunicators at the 9 -1 -1 Center. Facts: You are the Solicitor for Mifflin County, Pennsylvania. You are requesting an advisory from the State Ethics Commission. Mifflin County runs an Emergency Service Center (9 -1 -1 Center) which dispatches emergency vehicles. The 9 -1 -1 Center dispatches, jnter alia, all ambulances 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. The County hires "telecommunicators" for the 9 -1 -1 Center. Telecommunicators are responsible for taking information and dispatching the appropriate unit(s). You have submitted a copy of the job description for telecommunicators, which job description is incorporated herein by reference. You state that when a telecommunicator receives a 9 -1 -1 call, he obtains the names, location, telephone number, and the nature of the incident. A recommendation block then appears on the computer screen indicating which units are appropriate for Sikorsky 96 -576 July 31, 1996 Page 2 dispatch. There may be more than one appropriate unit to send, and the telecommunicator may choose from the listed units or manually override the computer and choose another unit. You state that the practice of manually overriding the system is not generally condoned and must be justified. Lynwood L. Clinger is one -half owner and general manager of Trans -Med Services, Inc., a "for profit" ambulance service which is among those dispatched by Mifflin County's 9 -1 -1 Emergency Service Center. Clinger has applied for a job as a telecommunicator with the said Emergency Service Center. You are requesting an advisory with regard to any potential conflict of interest as to the future employment of Clinger as a telecommunicator. Furthermore, the 9 -1 -1 Center presently employs several telecommunicators who are either employed by or do volunteer work for "not for profit" volunteer companies. You are requesting an advisory as to the future employment of that type of employee as well. Clinger and the Emergency Services Director, Joseph Rupe, have consented to your request. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) 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, 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 P.S. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. It is further initially noted that an advisory may only be issued to those persons who request it relative to their own duties or to the appointing authority of such persons or the employer of such persons at the request of the appointing authority or employer. Thus, this Advice may be issued as to Lynwood Clinger, who has given you the authority to inquire on his behalf. With regard to prospective future employees who would be either employed by or do volunteer work for "not- for - profit" volunteer companies, the authority of the Emergency Services Director, Joseph Rupe, is insufficient to meet the standing requirement set forth above. Consequently, that aspect of your advisory request shall not be addressed. Telecommunicators employed by Mifflin County's 9 -1 -1 Emergency Service Center are public employees as defined under the Ethics Law, and hence they are subject to the provisions of that law. Thus, if Lynwood L. Clinger were to be hired as a telecommunicator for Mifflin County's 9 -1 -1 Emergency Service Center, he would become a public employee subject to the Ethics 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. Sikorsky 96 -576 July 31, 1996 Page 3 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 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. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. 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. Section 3(j) of the Ethics Law provides as follows: Sikorsky 96 -576 July 31, 1996 Page 4 Section 3. Restricted activities (j) 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. If a conflict exists, Section 3(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 Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public office /employment or 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. Trans -Med Services, Inc. is a business with which Clinger is associated, based upon the fact that he is half owner and General Manager. Although Section 3(a) of the Ethics Law would not operate to preclude Clinger from accepting a position with the Mifflin County 9 -1 -1 Emergency Service Center, it would appear that conflicts of interest would arise routinely for him. As a telecommunicator, Clinger would necessarily have to make instant decisions to dispatch service providers for emergency services. In situations where Trans -Med Sikorsky, 96 -576 July 31, 1996 Page 5 Services, Inc. would be dispatched by Clinger, either as a provider suggested by the computer or through an override of the computer, a conflict of interest would potentially exist. In dispatching his own company to provide ambulance services, Clinger would be using the authority of his employment and there would be a private pecuniary benefit resulting to his company. Certainly, the requirements imposed by the Ethics Law in conflict of interest situations — which in this case would include Clinger's abstaining and filing a written memorandum with his 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 Mr. Clinger's ability to function in the job. Nevertheless, these are the requirements. 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. Specifically not addressed herein is the applicability of the County Code. Conclusion: If Lynwood L. Clinger would become employed by Mifflin County's 9 -1 -1 Emergency Service Center as a telecommunicator, he would thereby become a public employee subject to the provisions of the Ethics Law. Clinger could not use the authority of his public position as a telecommunicator for the private pecuniary benefit of himself, a member of his immediate family, or a business with which he or a merhber of his immediate family is associated, including but not limited to Trans -Med Services, Inc., a "for- profit" ambulance service of which he is one -half owner and General Manager. The dispatching of his own ambulance service to provide emergency services would place Clinger in potential conflict of interest situations, at risk of transgressing Section 3(a) of the Ethics Law. In each instance of a conflict of interest, Mr. Clinger would be required to abstain and to file a written memorandum with his supervisor. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this 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, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. 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 forma/ 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 §13.2(h). The appeal may be received at the Sikorsky. 96 -576 July 31, 1996 Page 6 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. cerely, Vincent yLfDopko Chief Counsel