Loading...
HomeMy WebLinkAbout09-568 SoubikJohn A. Soubik 1628 Pulaski Avenue Coal Township, PA 17866 -3910 Dear Mr. Soubik: ADVICE OF COUNSEL August 6, 2009 09 -568 This responds to your letter dated June 29, 2009, 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.C.S. § 1101 et seq., would impose any prohibitions or restrictions upon a Human Resource Analyst 4 in the Governor's Office of Administration with regard to simultaneously serving as a non - compensated Member of the Pennsylvania State Board of Massage Therapy. Facts: You have requested an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You are currently employed as a Human Resource Analyst 4 with the Governor's Office of Administration. You have submitted a copy of the job classification specifications for a Human Resource Analyst 4 (job code 0504A), which document is incorporated herein by reference. The Pennsylvania State Board of Massage Therapy ( "State Board of Massage Therapy ") was established within the Pennsylvania Department of State by the Massage Therapy Law, Act 118 of 2008 (P.L. 1438) ( "Massage Therapy Law "), 63 P.S. § 627.1 et seq. Per the Massage Therapy Law, the duties and powers of the State Board of Massage Therapy include, inter alia, passing upon the qualifications and fitness of applicants for licensure as massage therapists and renewing, suspending, and revoking the licenses of massage therapists. You are interested in serving as a Member of the State Board of Massage Therapy. You state that you do not have any association with the massage therapy industry as part of your current position as a Human Resource Analyst 4. You have submitted a copy of a memorandum dated April 14, 2009, from James A. Honchar, Deputy Secretary for Human Resources and Management within the Governor's Office of Administration, by which your request for supplementary employment as an Independent Touch Practitioner was approved subject to certain restrictions. Soubik, 09 -568 August 6, 2009 Page 2 Based upon the above submitted facts, you ask whether the Ethics Act would prohibit or restrict you from simultaneously serving as a Human Resource Analyst 4 with the Governor's Office of Administration and as a non - compensated Member of the State Board of Massage Therapy. 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. As a Human Resource Analyst 4 with the Governor's Office of Administration, you are a public employee subject to the provisions of the Ethics Act. This conclusion is based upon the job classification specifications under job code 0504A, which when reviewed on an objective basis, indicate clearly that the power exists to take or recommend official action of a non - ministerial nature with respect to one or more of the following: contracting; procurement; administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies) where the economic impact is greater than de minimis on the interests of another person. Cf., Strizzi, Advice 06 -548. Based upon the narrow question posed, this Advice does not address whether, if you would be appointed as a non - compensated Member of the State Board of Massage Therapy, you would in that capacity be considered a public official subject to the Ethics Act. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest. —No public official or public employee shall engage in conduct that constitutes a conflict of interest. (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 Soubik, 09 -568 August 6, 2009 Page 3 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(a), (j). The following terms pertaining to conflicts of interest under the Ethics Act are defined 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. 65 Pa.C.S. § 1102. In applying the above provisions of the Ethics Act to the question of simultaneous service, it is initially noted that the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa. Const. Art. 6, § 2. There does not appear to be any statutorily - declared incompatibility precluding simultaneous service as a Human Resource Analyst 4 with the Governor's Office of Administration and as a non - compensated Member of the State Board of Massage Therapy. Turning to the question of conflict of interest, 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, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Where simultaneous service would place the public official /public employee in a continual state of conflict, such as where in one position he would be accounting to himself in another position on a continual basis, there would be an inherent conflict. (See, McCain, Opinion 02 -009). Where an inherent conflict would exist, it would appear to be impossible, as a practical matter, for the public official /public employee to function in the conflicting positions without running afoul of Section 1103(a). Absent a statutorily - declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not preclude an individual from simultaneously serving in more than one position. However, in each instance of a conflict of interest, the individual would be required to abstain fully from participation, and in each instance of a voting conflict, to abstain fully and to satisfy the disclosure requirements of Section 1103(j) as set Soubik, 09 -568 August 6, 2009 Page 4 forth above. In this case, based upon the facts that have been submitted, there does not appear to be an inherent conflict that would preclude simultaneous service as a Human Resource Analyst 4 with the Governor's Office of Administration and as a non - compensated Member of the State Board of Massage Therapy. Consequently, such simultaneous service would be permitted within the parameters of Sections 1103(a) and 1103(j) of the Ethics 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. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: As a Human Resource Analyst 4 with the Governor's Office of Administration, you are a public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Subject to the restrictions, conditions and qualifications set forth above, you may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as a Human Resource Analyst 4 with the Governor's Office of Administration and as a non - compensated Member of the Pennsylvania State Board of Massage Therapy. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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, 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