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Home My WebLink About88-522 FerraraJohn F. Ferrara, Chief Department of Public Welfare P.O. Box 2675 Harrisburg, PA 17105 -2675 Dear Mr. Ferrara: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 March 1, 1988 ADVICE OF COUNSEL 88 -522 Re: Simultaneous Service, Public Employee, Part -Time Hospital Pharmacist This responds to your letter of January 28, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restriction upon a Chief in the Divison of Provider Assessment Bureau of Quality Assurance, Office of Medical Assistance Programs, Department of Welfare from also being employed part -time as a hospital pharmacist at a rehabilitation hospital. Facts: In your advice request you state that you are currently the Chief of the Division of Provider Assessment, Bureau of Quality Assurance, Office of Medical Assistance Programs in the Department of Public Welfare (DPW). You state that your duties and responsibilities consist of managing a unit which reviews health care providers that bill DPW on a fee - for - service basis. You note that the providers would include physicians, dentists, pharmacies, clinics, optometrists, podiatrists, and other outpatient type providers but would not include inpatient and nursing home service providers. You specifically state that your unit does not review inpatient or nursing home services which are part of the cost reports that form the basis of reimbursement from the DPW. You note that you would like to supplement your employment as a part -time hospital pharmacist at the rehabilitation hospital in Mechanicsburg, wherein your duties and responsibilities would be limited to dispensing medication to inpatients in the hospital. You further state that the services provided at the rehabilitation hospital are not billed directly to DPW nor would you review such services in the course of your duties as a public employee in the Bureau of Quality Assurance. Finally, you note that the hospital pharmacy is not in competition with any other pharmacy that would be subject to review by the Bureau of Quality Assurance. You then request advice as to whether your contemplated part -time employment would be restricted or prohibited by the Ethics Act. John F. Ferrara, Chief March 1, 1988 Page 2 Discussion: As a Division Chief in DPW, you are a "public employee" as that term is defined under the State Ethics Act. 65 P.S. §402: 51 Pa. Code §1.1. This conclusion is based upon your job description, which when reviewed on an objective basis, indicates clearly that you have the power to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting or other activities where the economic impact is greater than de minimus on the interests of another person. Section 3(a) of the Ethics Act provides: 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). Section 3(a) basically provides that a public official may not use his public office or confidential information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family. Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself or a member of his immediate family which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Comm. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Comm. , 531 A.2d 536 (1987). Thus, under this provision, a public official may not use his public position to secure any financial gain for himself or his immediate family unless it is provided for by law. Domalakes Opinion, 85 -010. However, as outlined above, there does not appear to be a real possibility of any financial gain or inherent conflict arising if you were to serve both as a public employee and as a part -time pharmacist with a rehabilitation hospital. Basically, the Ethics Act does not state that it is inherently incompatible for a public employee to serve as a part -time pharmacist with a rehabilitation hospital. The main prohibition under the Ethics Act and Opinions of the Ethics Commission is that one may not serve the interests of two persons, groups, or entities whose interests may be adverse. See Alfano Opinion, 80 -007. In the situation outlined above, you would not be serving entities with interests which are adverse to each other. John F. Ferrara, Chief March 1, 1988 Page 3 Section 3(b) of the Ethics Act provides: 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 or candidate for public office would be influenced thereby. 65 P.S. 403(b). Under Section 3(b) of the Ethics Act cited above, which you must observe, you must neither offer nor accept anything of value on the understanding or with the intention that your official judgment would be influenced thereby. It is assumed such a situation does not exist here. Reference to this is added Section not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Section 3(d) of the Ethics Act provides: Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of section 7. 65 P.S. 403(d). However, under Section 3(d) of the Ethics Act, the State Ethics Commission may address other areas of possible conflicts of interest. 65 P.S. §403(d). The parameters of the types of activities encompassed by this provision of law may generally be determined by reviewing the purpose and intent of the Ethics Act. The Ethics Act was promulgated in order to ensure that the financial interests of public officials do not conflict with the public trust or create the appearance of a conflict with the public trust. Under Section 3(d) of the Ethics Act, if the situation should ever arise, you may not in your position as Division Chief participate in any matter that would involve the rehabilitation hospital of Mechanicsburg which would be your part -time employer. Further, should any matter arise dealing with your private employer, you would have a duty to notify your immediate supervisor of the potential conflict and advise your supervisor in writing of your non - participation in the matter. John F. Ferrara, Chief March 1, 1988 Page 4 Lastly, it must be noted that the propriety of your proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct has not been addressed in this advice. Conclusion: As a Division Chief in DPW, you are a public employee subject to the provisions of the Ethics Act. Under Section 3(a) of the Ethics Act, there is no per se prohibition to your simultaneous service as Division Chief in DPW and your part -time supplemental employment as a hospital pharmacist. Under Section 3(d) of the Ethics Act, you may not participate as a Division Chief in any matter which would involve your private part -time employer and you must notify your supervisor in writing of your non - participation in any matter which would come up involving your part -time private employer. Lastly, the propriety of your proposed conduct has only been addressed under the 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. 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. Si ncerely, Vincent Dopko General Counsel