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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