HomeMy WebLinkAbout80-516 DaghirTO:
FACTS:
DISCUSSION:
STATE ETHICS COMMISSION
P. 0. Box 1179
Harrisburg, PA 17108
February 7, 1980
ADVICE OF CHIEF COUNSEL
Gordon J. Daghir
Chairman of the Board
Andrew Kaul Memorial Hospital
St. Mary's, PA 15857
80 -516
RE: Public Health Nurse II Serving as a Member of the
Board of a Health Systems Agency Hospital.
On July 25, 1979, Gordon J. Daghir, Chairman of the
Board of the Andrew Kaul Memorial Hospital, St. Mary's, PA,
wrote this Commission asking whether Mrs. Robert (Betsy)
Roberts, a Public Health Nurse II, could, consistent with the
State Ethics Act, serve as a member of the Board of Directors
of the Andrew Kaul Memorial Hospital.
She advised that a ruling of the Department of Health
barred her from serving on the hospital board.
Edward M. Seladones, Executive Director, wrote to
William Saltzer, Executive Assistant to the Deputy of
Administration, questioning a ruling which prohibits
Mrs. Betsy Roberts from serving on the Board of Directors
of the Andrew Kaul Memorial Hospital. Subsequent requests
and discussions took place, and a copy of the ruling was
received on Janaury 31, 1980.
The issue is whether a Public Health Nurse II may also
serve on the board of a hospital regulated by her employer,
the Department of Health.
The first issue is whether a person occupying the
position of Public Health Nurse II is a public employee.
We note that Mrs. Betsy Roberts is not engaged in
any activity which results in her making recommendations to
a public official or public employee having an economic
impact of greater than a de minimus nature on the interest
of any person. Therefore, she is not a public employee and
is not subject to the disclosure requirements in Sections
4 & 5 of the State Ethics Act, or certain proscribed
activites involving public employees set forth in section 3.
Gordon J. Daghir
February 7, 1980
Page 2
For these reasons the Board of Ethics concluded that it
would be impermissable for any employee of the Department
of Health to serve on any of these county boards.
Only employees "who participate... in the negotiation of
contracts, the making of loans or the granting of subsidies"
would be barred because of a conflict of interests. In our
view, to exclude "any employee" is too sweeping a rule.
Section 11 of the State Ethics Act states, "any governmental
body may adopt requirements to supplement this Act, provided
that no such requirements shall in any way be less restricted
from the Act."
Therefore, the Department of Health is not barred from
negotiating a contract with their employees which would
prohibit all employees of the Department from participating
in the governing body of any regulatee of the Department of
Health. Such a rule however, is not required by the State
Ethics Act, 65 P.S. 401 et seq.
CONCLUSION:
We agree with the February 20, 1976 opinion of the
Departmental Ethics Committee wherein it states:
But for employees of the Department of Public Welfare
there is a problem of conflict of interest, however
subtle. Where such an employee would participate for
the state in the negotiation of contracts, the making
of loans or the granting of subsidies to a county board
or to a local agency operating a special program in
the county, he could not consistently serve both the
interest of the Department of Public Welfare and those
of the affected county board or agency.
But we cannot agree with the conclusion:
A Public Health Nurse II is not a "public employee."
The State Ethics Act does not bar a ministerial employee of
a regulator from serving on a governmental body of the regulatee.
The State Ethics Act permits any agency or department from
adopting regulations which are stricter than the State Ethics
Act.
Gordon J. Daghir
February 7, 1980
Page 3
DRM /rdp -2
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.
A personal appearance before the Commission and a
formal opinion will be issued upon your request if you
feel this reply does not suffice.
This letter is a public record and will be made
available as such.
/ % t
DAVID RITTENHOUSE MORRISON
Chief Counsel