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
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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