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HomeMy WebLinkAbout06-559 Bompiani, D.C.Anthony L. Bompiani, D.C. Bompiani Chiropractic Clinic 403 S. Third Street Youngwood, PA 15697 Dear Dr. Bompiani: ADVICE OF COUNSEL May 24, 2006 06 -559 This responds to your letter of April 20, 2006, 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 school director who, in a private capacity, is a practicing chiropractor, with regard to serving on a workman's compensation panel for the school district for which he serves. Facts: You are a School Director for the Hempfield Area School District ( "School District "). In a private capacity, you are a chiropractor practicing in the School District. The question you pose is whether the Ethics Act would prohibit you from serving as a School Director and working as a chiropractor on the Workman's Compensation Panel for the School District ( "Panel "). You state that the Panel is a nongovernmental panel appointed by either the employer or the employer's workman's compensation insurance company or both. You state that under Pennsylvania law, if a School District employee were injured on the job, that employee would have to treat the first 90 days post injury with a physician from the Panel. You state that the injured employee would not be required to be treated by you; he would have the option of consulting with any physician on the Panel. 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 requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester 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 requester has truthfully disclosed all of the material facts. Bompiani, 06 -559 May 24, 2006 Page 2 As a School Director, you are a "public official" as that term is defined in the Ethics Act, and hence you are subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms 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. Bompiani, 06 -559 May 24, 2006 Page 3 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, Pavlovic, Opinion 02 -005. In applying the above provisions of the Ethics Act to the instant matter, it is noted that Section 1103(a) of the Ethics Act does not prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may not use the authority of his public position - -or confidential information obtained by being in that position - -for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited under Section 1103(a) would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order 1037; (2) the use of governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official /public employee is associated in his private capacity Gorman, Order 1041; Rembold, Order 1303; Wilcox, Order 1306), or private customer(s)/client(s) (Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010). The Commission has also held that a reasonable and legitimate expectation that a business Bompiani, 06 -559 May 24, 2006 Page 4 relationship will form may support a finding of a conflict of interest. Amato, Opinion 89- 002. In the instant matter, your private chiropractic practice would be considered a business with which you are associated. Pursuant to Section 1103(a) of the Ethics Act, you as a School Director would generally have a conflict of interest in matter(s) that would financially benefit yourself, your chiropractic practice or private patients. Thus, as a School Director, you would be prohibited from using the authority of your public office or confidential information to aid, facilitate or ensure that you as a designated health care provider on the Panel would be chosen to treat an injured School District employee. See, Guloien, Opinion 90 -011. In each instance of a conflict, you would be required to abstain fully from participation and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Parenthetically, although the Ethics Act would not prohibit you from serving as a School Director and working as a chiropractor on the Panel provided the requirements of Sections 1103(a) and 1103(j) are satisfied, a problem may nevertheless exist under the Workers' Compensation Act. In the instant situation, the Worker's Compensation Act provides in pertinent part as follows: 531. Surgical and medical services and supplies; designation by employer; artificial limb or eye (1)(i) The employer shall provide payment in accordance with this section for reasonable surgical and medical services, services rendered by physicians or other health care providers, including an additional opinion when invasive surgery may be necessary, medicines and supplies, as and when needed. Provided an employer establishes a list of at least six designated health care providers, no more than four of whom may be a coordinated care organization and no fewer than three of whom shall be physicians, the employe shall be required to visit one of the physicians or other health care providers so designated and shall continue to visit the same or another designated physician or health care provider for a period of ninety (90) days from the date of the first visit: Provided, however, That the employer shall not include on the list a physician or other health care provider who is employed, owned or controlled by the employer or the employer's insurer unless employment, ownership or control is disclosed on the list.... . 77 P.S. § 531. Given that the State Ethics Commission in the exercise of its jurisdiction is limited to making determinations under the Ethics Act and does not have the express statutory jurisdiction to interpret other laws, it is suggested that you seek legal advice as to the applicability of Section 531 of the Workers' Compensation Act. 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. Conclusion: As School Director for the Hempfield Area School District ( "School District "), you are a "public official" subject to the provisions of the Public Official and Bompiani, 06 -559 May 24, 2006 Page 5 Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Your private chiropractic practice would be considered a business with which you are associated. Pursuant to Section 1103(a) of the Ethics Act, you as a School Director would generally have a conflict of interest in matter(s) that would financially benefit yourself, your chiropractic practice or private patients. Thus, as a School Director, you would be prohibited from using the authority of your public office or confidential information to aid, facilitate or ensure that you as a designated health care provider on the Panel would be chosen to treat an injured School District employee. In each instance of a conflict, you would be required to abstain fully from participation and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Although the Ethics Act would not prohibit you from serving as a School Director and working as a chiropractor on the Workman's Compensation Panel for the School District provided the requirements of Sections 1103(a) and 1103(j) are satisfied, a problem may nevertheless exist under Section 531 of the Workers' Compensation Act. Given that the State Ethics Commission in the exercise of its jurisdiction is limited to making determinations under the Ethics Act and does not have the express statutory jurisdiction to interpret other laws, it is suggested that you seek legal advice as to the applicability of Section 531 of the Workers' Compensation Act. 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 requester 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 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 § 13.2(h). 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