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HomeMy WebLinkAbout84-554 EckertMr. Harvey C. Eckert Deputy Secretary for Comptroller Operations Governor's Office Office of the Budget 207 Finance Building Harrisburg, PA 17120 Dear Mr. Eckert: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 April 25, 1984 ADVICE OF COUNSEL 84 -554 • RE: Deputy Secretary for Comptroller Operations; Hospital Board of Trustees; Lawsuit; Conflict of Interest This responds to your letter of March 23, 1984, in which you requested advice from the State Ethics Commission. Issue: In light of the fact that the comptroller for the Pennsylvania Department of Public Welfare reports directly to you as Deputy Secretary for Comptroller Operations, you ask whether a conflict of interest exists where a hospital for which you serve on the Board of Trustees may file a lawsuit against the Pennsylvania Department of Public Welfare. Facts: You are currently employed in the Governor's office of the Budget as Deputy Secretary for Comptroller Operations, hereinafter referred to as DSCO. This position is responsible for all comptroller - related activities for those agencies under the Governor's jurisdiction. Accordingly, you have seven comptrollers offices and three bureau offices reporting directly to your office. The three bureau offices under your direct control include the Bureau of Financial Management, the Bureau of Audits, and the Bureau of Operations Review. One of the seven comptrollers offices under your direct control includes the comptroller for the Department of Public Welfare (DPW). Some of your duties include establishing or approving internal, administrative, and fiscal policies for offices under your control and delegating responsibilities as you deem appropriate. You also provide information to the F2cretary of the Budget relating to activities within the purview of the offices under your control, which information will assist the ; Secretary in assessing the financial status and performance of Commonwealth agencies. You are further responsible for the preparation and submission of a comprehensive comptrollers operations budget request. Mr. Harvey C. Eckert April 25, 1984 Page 2 Comptrollers are responsible to you as Deputy Secretary for Comptroller Operations, and they are the chief financial accounting officers of the agencies they serve. Comptrollers refer to you any matter that cannot he—. resolved at the agency level. Further, comptrollers advise and consult with you as Deputy Secretary for Comptroller Operations on matters relating to uniform financial, payroll, accounting, reporting, operating, service contracting systems and procedures, agency fiscal accounting and auditing procedures, and matters of concern to the Auditor General and State Treasury Department. You indicate that a situation exists where Lewistown Hospital in Lewistown, Pennsylvania, either individually or as a class action, may file suit against the Pennsylvania Department of Public Welfare regarding a disputed methodology used on long -term medical assistance reimbursement. You serve on the Board of Trustees for the Lewistown and you are concerned that a conflict of interest will exist if the Hospital does indeed file suit because the comptroller for DPW reports directly to your office. You have, therefore, requested the State Ethics Commission to review your situation. Discussion: As Deputy Secretary for Comptroller Operations, you are a "public employee" or "public official" as that term is defined in the State Ethics Act, 65 P.S. Section 402. As such, your conduct must conform to the requirements of the State Ethics Act. Essentially, the Ethics Act requires that a public employee or official must conduct himself_in a manner which gives rise to neither a conflict of interest nor the appearance of a conflict of interest with the public trust. The Commission has indicated that a conflict would arise where an individual is serving entities which have interest adverse to one another. See Alfano, 80 -007. Your concurrent service as DSCO and member of the Board of Trustees of the Lewistown Hospital would not present a conflict of interest per se. Likewise, even if, in a particular situation a conflict of interest would exist, there is no specific requirement under the Ethics Act that would require you to resign from one of the two posts (DSCO or member of the Board of Trustees) in order to comply with the provisions of the Ethics Act. If as DSCO you would be asked to review or participate in decisions on behalf of DPW with respect to the Hospital's suit, it would be necessary for you to abstain from all activities regarding this suit in your capacity as DSCO. In the alternative, in your capacity as a Trustee, you could abstain from all the Hospital's decisions regarding this suit. Mr. Harvey C. Eckert April 25, 1984 Page 3 This latter option may be preferable because, if the DPW Comptroller did refer a matter to you regarding the Hospital suit or related thereto, it would be virtually impossible for you as DSCO to abstain from consideration o&,the question. In this light, the best course of action might be for you, in your capacity as member of the Board of Trustees of the Lewistown Hospital, to abstain from all discussions or votes concerning the possible filing of the action to which you referred in your request for advice. This is sensible in light of the fact that as a Trustee, you may be privy to information about the Hospital, the issues, or the suit which you might be called upon to discuss or use in your capacity as DSCO to the benefit or detriment of the Hospital. Conclusion: So long as you conform your conduct to the guidelines discussed above, you should be able to avoid both a conflict of interest and the appearance of a conflict of interest with the public trust under the Ethics Act. If a choice is possible, you may chose between abstention in your capacity as DSCO or abstention in your capacity as member of the Board of Trustees in the Lewistown Hospital. Pursuant to Section 7(9)(ii), 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. CW /rdp Sincerely, ,-6 idt/ Sandra S. Christianson General Counsel