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HomeMy WebLinkAbout85-544 CohenMs. Marcia R. Cohen, Field Manager 1400 Spring Garden Street Room 301 Philadelphia, PA 19130 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 May 15, 1985 ADVICE OF COUNSEL 85 -544 Re: Conflict of Interest, Employee Department of Public Welfare, Member Advisory Committee Non - Profit Corporation Dear Ms. Cohen: This responds to your letter of April 19, 1985 wherein you requested the advice of the State Ethics Commission. Issue: Whether you may serve on an advisory committee of a non - profit corporation while you are an employee of the Pennsylvania Department of Public Welfare. Facts: You are a Field Manager for the Office of Medical Assistance in the Department of Public Welfare. Your job description indicates that you are responsible for planning, implementing, monitoring and evaluating services provided to individuals eligible for medical assistance primarily in the Southeast region by Health Maintenance Organizations (HMO's). You make policy decisions, compile reports, review grant requests and project proposals, and participate in contract negotiations. You are also responsible for helping to develop medical assistance policy, and act as a liaison between DPW and County Boards of Assistance and the public. You represent DPW at hearings and at agencies, and you supervise two Early and Periodic Screening, Diagnosis and Treatment (EDSDT) specialists within the Department. Your work is general in nature and requires initiative, judgment, and independent decision - making. You have agreed to become a member of an Advisory Committee for Wheels, a non - profit organization which provides medical and specialized transportation to individuals some are whom medical assistance eligible clients. These clients are served under a contract with the Department of Public Welfare. Ms. Marcia Cohen May 15, 1985 Page 2 You ask whether there is any conflict of interest by serving on this committee. Discussion: Initially, the Ethics Commission notes that, as a statutory entity, its jurisdiction and its power is strictly limited to the authority granted it in 65 P.S. 401 et seq. Thus, it has no authority to interpret and /or enforce the provisions of other codes, such as, the State Adverse Interest Act, 71 P.S. 776.1 et seq., and this advice should not be construed as clearance to act under other Commonwealth laws. As a Medical Assistance Program Specialists III within the Department, you are a public employee as that term is defined in the State Ethics Act and your conduct must, therefore, conform to the requirements of the Act. 65 P.S. §402; DeBrunner, 84 -595. Generally, the State Ethics Act provides in part 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 this provision, you as a public employee may not use your position or any confidential information obtained therein to benefit yourself or any business with which you are associated. A business with which one is associated is defined in the Act as: Section 2. Definitions. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or holder of stock. 65 P.S. 402. In the instant situation, you are on an Advisory Committee rather than the Board of Directors. The Corporation, therefore, would not fall within this statutory definition. You still, however, must not use your public position to secure any benefit personally. Ms. Marcia Cohen May 15, 1985 Page 3 In addition to the foregoing, the State Ethics Commission may also address other areas of possible conflict. 65 P.S. §403(d). Such a conflict will develop where a person serves one or more interests that are adverse. Alfano, 80 -007. In such a situation, a conflict or the appearance thereof may develop. 65 P.S. §401. In light of the foregoing, and in order to avoid any such conflict, you should not participate in any matter as an employee of the Department, regarding the Corporation. See Dubs, 84 -564; Grove, 83 -013. Additionally, as a member of the Advisory Committee you should avoid offering any information to the Corporation which could be considered confidential or which is otherwise not available to the general public. This is so even though there would be no personal benefit and even though you are not technically "associated" with the Corporation. In this way you will avoid even the appearance of a conflict. Finally, we note that the Ethics Act also provides that: Section 3. Restricted activities. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee of candidate for public office would be influenced thereby. 65 P.S. 403(b). We make reference to this provision of the law not to imply that there has or will be a violation thereof, but only to provide a complete response to your question. Conclusion: While there_is no outright prohibition on your service on the Advisory Committee For Wheels, you area public employee and your conduct must, therefore, conform to the requirements of the State Ethics Act. 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. Ms. Marcia Cohen May 15, 1985 Page 4 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. JJC /sfb Sinc• ely, Joh Contino General Counsel