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HomeMy WebLinkAbout89-579 GordonDear Ms. Gordon: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 2, 1989 Ms. Harriet F. Gordon 89 - 579 Philadelphia State Office Building 1400 Spring Garden Street, Room 306 Philadelphia, PA 19130 Re: Conflict, DPW, Regional Mental Retardation Program Representative, Masters Program, Practicum with community agency indirectly receiving Department funding. This responds to your letter of October 4, 1989, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a Regional Mental Retardation Program Representative in the Department of Public Welfare from serving her practicum as to a Masters Program with a community agency which indirectly receives funding from the Department. Facts: You are currently a Regional Mental Retardation Program Representative in the Department of Public Welfare, hereinafter DPW, and have been accepted by Temple University as a part -time student in the Counseling Psychology Master's Program beginning in September, 1989. As part of that curriculum, there is a practicum which you would like to complete at Northwestern Corporation which is a community agency serving individuals with mental retardation. It appears that Northwestern Corporation is funded indirectly by DPW which allocates funds to county programs which in turn are allocated to Northwestern Corporation among others for services as defined and audited by the respective county. In your position with DPW you do not negotiate or approve any contracts with Northwestern University nor does your job duties and responsibilities in any way impact upon those contracts. You are concerned that your practicum does not involve any conflict of interest with the Ethics Law. You were informed on September 21, 1989 by DPW that your practicum did not violate either the Governor's Code of Conduct or the State Adverse Interest Act but were advised to seek advice from this Ms. Harriet F. Gordon Page 2 Commission as to whether a conflict would exist under the Ethics Law. You question whether a conflict is involved and, if so, whether you could receive a waiver under the circumstances. Discussion: As a Regional Mental Retardation Program Representative for DPW, it will be assumed for purposes of this advice that you are a public employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Act provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined under the Ethics Law: Section 2. 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. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impactor 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 or 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. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public Ms. Harriet F. Gordon Page 3 official /employee anything of monetary value or no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that official /employee would be influenced thereby. In applying the above provisions of the Ethics Law to the question of whether you may complete a practicum at Northwestern Corporation which receives indirect funding from DPW, there does not appear to be any real possibility of a private pecuniary benefit or conflict arising if you were to complete this practicum. In this regard it is noted that you have no involvement regarding the funding for Northwest Corporation and your duties and responsibilities with the DPW do not in any way have any involvement with such contracts. Based upon the foregoing assumptions, Section 3(a) of the Ethics Law would not restrict you from completing your practicum with Northwestern Corporation. However, if any situation arises in the future where you as an employee of DPW and in the performance of your practicum with Northwestern Corporation would develop an adverse interest, then you must remove yourself from that particular matter and disclose the nature of your interest in a written memorandum to your superior. If such a situation would arise, you may seek additional advice from this Commission. In addition, as an employee of DPW, you may not during Commonwealth working hours use Commonwealth facilities, telephones, supplies, or personnel to conduct your own private or personal matters such as studying, doing research, writing papers for your educational program or performing work assignments as to your practicum at Northwestern Corporation. See Pancoe, Opinion 89 -011. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; 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. Conclusion: As a Regional Mental Retardation Program Representative for DPW, you are a public employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not restrict you from participating in a part time educational program and completing a practicum with Northwestern Corporation which indirectly receives funding from DPW over which you have no responsibility or involvement. During Commonwealth working hours at DPW, you may not use Commonwealth facilities, supplies, personal or equipment to perform any of your private or Ms. Harriet F. Gordon Page 4 personal matters relating to your studies with the University or your practicum with the Northwestern Corporation. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. VJD /emg Sincerely, Vincent Dopko, Chief Counsel