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HomeMy WebLinkAbout81-557 MaceyMr. & Mrs. John S. Macey 1114 Old Pond Road Harrisburg, PA 17112 RE: Conflict of Interest STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 April 24, 1981 ADVICE OF COUNSEL 81 -557 Dear Mr. & Mrs. Macey: This responds to your letter of March 25, 1981, in which you requested an opinion from the Ethics Commission. Issue: You requested advice as to whether or not it is a conflict of interest for a public employee to review work done by a company employing the public employee's spouse. Facts: You informed us that John Macey is a Welfare Program Specialist II in the Department of Public Welfare, Office of Medical Assistance, Bureau of Medical Assistance Operations. Mr. Macey, your working title is Chief, Contract and Analysis Section. Your Section reports to Department management on the activities of the Computer Company (Company). You monitor the Company's performance of its contract with the Department. Mrs. Macey has been employed by the Company since December 1980 as a Batch Clerk in the Input Control Section. She reviews invoices for correct numbering and prepares invoices for data entry. Discussion: In pertinant part the Ethics Act, 77 P.S. §401 et seq., defines "public employee" as any individual employed by the Commonwealth responsible for taking or recommending non - ministerial official action with regard to contracting and procurement. 77 P.S. §402. John Macey is responsible for taking or recommending non - ministerial official action with regard to the Department's contract with the Computer Company. John Macey, as a public employee, is subject to the Ethics Act. The Act does not, however, prohibit a public employee from reviewing work done by a company employing his wife. The Ethics Act was not meant to preclude the spouse of public employees for employment. John Macey must, however, observe the restrictions imposed by the Ethics Act. Mr. & Mrs. John S. Macey April 24, 1981 Page 2 You must not use your public employment or any confidential information received through holding public employment to obtain financial gain for himself or a member of his immediate family. Thus, Mr. Macey, you cannot use your public employment or confidential information received as a Welfare Program Specialist II to obtain financial gain for yourself, your wife or the Computer Company. 77 P.S. §403(a). No one may give you or your wife anything of value, including the promise of future employment, based on any understanding that your (John Macey's) official actions will be influenced thereby. 77 P.S. §403(b). Section 3(c) of the Act states that no public employee, his immediate family or any business in which the person or a member of the person's immediate family is a director, officer, owner or holder of stock exceeding 5% of the equity at fair market value of the business shall enter into a contract valued at $500 or more with a governmental body unless the contract is awarded in an open and public process. ZZ P.S. §403(c). Neither you (except for your employment by the Department) nor Mrs. Macey have contracts with the Department. Mrs. Macey's contract of employment is with the Computer Company, not with the Department. Assuming that neither you nor Mrs. Macey is an officer, director or owner of stock exceeding 5% of the fair market value equity of the Computer Company, the Computer Company may contract with the Department of Public Welfare without reference to the open and public process requirement of the Act. Conclusion: A Welfare Program Specialist II acting as a monitor for contract compliance is a public employee. There is no conflict of interest in the Specialist reviewing work done by a company employing his spouse. John Macey may not use his public employment or confiden- tial information received through holding public employment to obtain financial gain for his wife or himself. No one may give either Mr. or Mrs. Macey anything of value, including the promise of future employment, based on any understanding that John Macey's official actions would be affected thereby. Assuming that Mr. and /or Mrs. John Macey is not an officer, director or stockholder exceeding 5% of the equity at fair market value of the Computer Company, the Company may contract with the Department of Public Welfare without reference to the open and public process requirement of the 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. Mr. & Mrs. John S. Macey April 24, 1981 Page 3 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 may be scheduled and a formal Opinion from the Commission will be issued. You should make such a request or indicate your disapproval of this Advice within the next 30 days. SW /rdp Sincerely, andra S. C istianson General Cou sel