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HomeMy WebLinkAbout85-535 WalshMr. Richard M. Walsh 111 North Pennsylvania Blvd. Wilkes - Barre, PA 18701 Dear Mr. Walsh: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 April 15, 1985 ADVICE OF COUNSEL 85 -535 Re: County Program Administrator; Private Counseling Practice, Simultaneous Service This responds to your letter of March 28, 1985, wherein you requested the advice of the State Ethics Commission. Issue: Whether, within th purview of the State Ethics Act you may serve as a program administrator for the County Department of Public Welfare and simultaneously operate a private counseling service, Facts: You are currently employed as the Mental Health /Mental Retardation program administrator for Luzerne and Wyoming Counties. In that position you are responsible for the planning, development and coordination of the aforementioned program. As administrator, you assess community needs, establish priorities and participate in funding and expenditure decisions relating to the program. We have reveiwed your job description and have incorporated that document herein by reference. You are also a certified psychotherapist regarding marital and family therapy and for the practice of individual psychotherapy. You are currently considering initiating a private practice for the treatment of marital and family problems. You ask whether any conflict of interest would occur under the State Ethics Act as a result of this situation. Discussion: Initially, we note that as a program administrator, you are to be considered a "public employee" as that term is defined in the State Ethics Act. 65 P,S. §402. Accordingly, your conduct as such would be governed by Mr. Richard M. Walsh April 15, 1985 Page 2 the restrictions and prohibitions of the Ethics Act. Also, in response to your inquiry, we note that our response will be strictly limited to the application and interpretation of the State Ethics Act. The jurisdiction of the Ethics Commission and, therefore, this response, is strictly limited to interpreting the Ethics Act. Accordingly, this response will not address your proposed conduct under any other code of ethics, regulations, management directives, statutes, etc., other than the State Ethics Act. The Ethics Act provides that: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Within the provisions of this section of the Act it is clear that you may not use your public employment in order to benifit your business. You may not, in that respect, use confidential information acquired through your public position to seek or secure clients for your counseling business. You must be particularly careful that you do not offer or provide counseling services, for example, to individuals whom you discover may have a need for such services, as a result of your current employment. Slenker, 84 -616; Mullen, 82 -551. Additionally, you may not use any of the facilities or personnel of your current public employer to advance, support, or aid your private business. The Ethics Commission may also address other areas of possible conflict. 65 P.S. §403(d). In this respect we note that the Ethics Act sets forth the concept that public office is a public trust and the financial interests of one who serves in such office must not be in conflict or appear to be in conflict with the public trust. 65 P.S. §401. Such a conflict or appearance thereof would develop in a situation where you would attempt to serve adverse interests. Alfano, 80 -107. In order to avoid a conflict as well as an appearance of such a conflict you should be sure not to participate as a public employee in any matter or regarding any person that was, or will be served by your private business. Additionally, you should not use your public position or title to advance or promote your private business. Mr. Richard M. Walsh April 15, 1985 Page 3 Conclusion: The Ethics Act does not present any per se prohibition upon the activity that you propose. As a public employee your conduct must conform to the requirements of the Ethics Act as outlined above. 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. Since ely, 9L " John J. Contino General Counsel JJC /sfb