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HomeMy WebLinkAbout08-603 ThummaEdward L. Schorpp, Esquire Solicitor Office of the Solicitor Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 -3387 Dear Mr. Schorpp: ADVICE OF COUNSEL December 29, 2008 08 -603 This responds to your letter dated November 20, 2008, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would present any prohibitions or restrictions upon an executive assistant with a county's Office of the Solicitor, who is a participant in the county's health insurance benefits program, with regard to utilizing a county fax machine and the county's telephone service to fax her health insurance claims to the program insurer, when the county considers the utilization by program participants of the county's fax machines and telephone service for such purposes to be part of the overall health insurance benefit provided by the county under the program. Facts: As Solicitor for Cumberland County ( "County "), Pennsylvania, you have been authorized by Linda L. Thumma ( "Ms. Thumma"), an employee of the County Office of the Solicitor, to request an advisory from the Pennsylvania State Ethics Commission on her behalf. You have submitted facts that may be fairly summarized as follows. You state that the County is in the process of revising the structure of its health insurance benefits program ( "the Program ") for County employees and other eligible participants. You state that for purposes of this advisory, it should be assumed that the individuals enrolled in the Program are lawfully entitled to participate in the Program at County expense. The changes to the Program will be implemented effective January 1, 2009. Under the Program, certain claim processing responsibilities that previously existed between the County and the Program insurer will be transferred to the Program participants. In general, each Program participant will become responsible for Sch�or p 08 -603 December 29, 2008 Page 2 processing his or her application(s) for reimbursement of private funds that the Program participant used to pay for covered health expenses. You state that the County proposes to allow Program participants to use County fax machines to fax reimbursement applications to the Program insurer's claims telephone number ( "the Claims Number'), which number is encompassed within the County's "watts" line coverage. Under the County's billing arrangement with its telephone service provider, the Claims Number is within the area covered by the County's general telephone service and is not billed as long distance. You state that the County considers the utilization of the County's fax machines and telephone service by Program participants to fax reimbursement applications to the Program insurer's Claims Number to be part of the overall health insurance benefit provided by the County. Ms. Thumma is employed as the Executive Assistant with the County Office of the Solicitor. You state that Ms. Thumma intends to participate in the Program. Based upon the above submitted facts, you ask whether the Ethics Act would permit Ms. Thumma to utilize a County fax machine and the County's telephone service to fax her health insurance claims under the Program to the Program insurer. You state that for purposes of this advisory, it should be assumed that Ms. Thumma would utilize the County fax machine and telephone service for such purposes less than fifty (50) times per year. 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. 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. Preliminarily, it is noted that the submitted facts do not include an official job description for Ms. Thumma's position as the Executive Assistant with the County Office of the Solicitor. This Advice assumes, without deciding, that in her capacity as the Executive Assistant with the County Office of the Solicitor, Ms. Thumma is a public employee subject to the provisions of the Ethics 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 related to conflicts of interest under the Ethics Act are defined in Section 1102 of 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 Sch�or p 08 -603 December 29, 2008 Page 3 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. 65 Pa.C.S. § 1102. Pursuant to Section 1103(a) of the Ethics Act, 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. In applying Section 1103(a) of the Ethics Act to your inquiry, it is noted that the use of government staff, time, equipment, facilities, or property for non - governmental purposes—including business, personal, or political purposes —is generally prohibited and may form the basis for a violation of Section 1103(a) of the Ethics Act. See, e.q., Confidential Opinion, 05 -001; Heck, Order 1251, Holt, Order 1153 (business purposes); Moore, Order 1317, Meduka, rder 1277, Sullivan, Order 1245, Dovidio, Order 1202 (personal purposes); Habay, Order 1313, Livingston, Order 1030, Rockefeller, Order 1004, Freind, Order 800 (political purposes). The State Ethics Commission has long held that government offices, facilities, equipment, and personnel are to be used for governmental purposes and not for private, business or campaign /re- election activities. See, Smythe, Order 1121; Rakowsky, Order 943; Eck, Order 787; Freind, supra; Ferlo, OTDinion 97 -005. In the instant matter, based upon the submitted facts that: (1) individuals enrolled in the Program are lawfully entitled to participate in the Program at County expense; and (2) the County considers the utilization of the County's fax machines and telephone service by Program participants to fax applications for reimbursement of privately expended funds to the Program insurer's Claims Number to be part of the overall health insurance benefit provided by the County, you are advised that Section 1103(a) of the Ethics Act would not prohibit Ms. Thumma, as a Program participant, from utilizing a County fax machine and the County telephone service for such limited purposes. The ropriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the County Code. Conclusion: This Advice assumes, without deciding, that Linda L. Thumma ("Ms. Thumma"), in her capacity as the Executive Assistant with the Cumberland County ( "County ") Office of the Solicitor, 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. Based upon the submitted facts that: (1) individuals enrolled in the County's health insurance benefits program ( "the Program ") are lawfully entitled to participate in the Program at County expense; and (2) the County considers the utilization of the County's fax machines and telephone service by Program participants to fax applications for reimbursement of privately expended funds to the Program insurer's Claims Number to be part of the overall health insurance benefit provided by the County, Section 1103(a) h�or Sc p 08 -603 December 29, 2008 Page 4 of the Ethics Act would not prohibit Ms. utilizing a County fax machine and the purposes. Lastly, the propriety of the proposed Ethics Act. Thumma, as a Program participant, from County telephone service for such limited conduct has only been addressed under the Pursuant to Section 1107(11) of the Ethics Act, 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, Robin M. Hittie Chief Counsel