HomeMy WebLinkAbout81-609 PolinerMildred Poliner
1132 Cypress Street
Middletown, PA 17057
RE: Section 3; Field Auditor
Dear Ms. Poliner:
Mailing Address:
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
August 26, 1981
ADVICE OF COUNSEL
81 -609
This responds to your letter of July 7, 1981, in which
you requested an opinion from the Ethics Commission.
Issue: You requested advice as to whether the Ethics Act
prohibits you, an employee of the Pennsylvania Department of
Health, from assisting in the preparation of cost reports
submitted to the Bureau of Medical Assistance, Department of
Welfare.
Facts: You informed us that you are a field auditor in the
Division of Chronic Disease Control, Coal Workers Respiratory
Disease Program. The Division is part of the Pennsylvania
Department of Health. As a field auditor you review budgets,
expenditures and income of clinics and agencies that have
been awarded contracts for the treatment of black lung disease.
A consultant asked you to prepare a cost report for a nursing
home client of the consultants. Cost reports are submitted
to the Bureau of Medical Assistance of the Pennsylvania
Department of Welfare.
Discussion: The Ethics Act, 65 P.S. §401 et seq., defines
"public employee" as any individual employed by the Commonwealth
who is responsible for taking or recommending non - ministerial
official action with regard to auditing any person. Id
§402. As a field auditor you are clearly a public employee
subject to the Ethics Act.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mildred Poliner
August 26, 1981
Page 2
The Act does not totally proscribe outside work by
public employees but rather imposes certain restrictions on
how a public employee may obtain and handle such outside
employment. Section 3(a) of the statute provides that no
public employee shall use his public office or any confi-
dential information received as a public employee to obtain
financial gain for himself, his immediate family or a
business with which he is associated. Thus, you cannot use
your position as a field auditor or confidential information
received as a field auditor to obtain work such as preparing
cost reports.
Another part of the Act, Section 3(b), states that no
person shall offer or give to a public employee anything of
value based on any understanding that any official act of
the public employee will be influenced thereby. 65 P.S.
§403(b). "Anything of value" includes a promise of future
employment and no one may offer you future employment as a
preparer of cost reports based on any understanding that
your actions as a field auditor would be influenced thereby.
Finally, Section 3(c) of the Ethics Act provides that
no public employee or any business in which the public
employee is a director, officer or owner of stock exceeding
5% of the equity at fair market value of the business shall
enter into any contract valued at $500 or more with a govern-
mental body unless that contract has been awarded in an open
and public process. 65 P.S. 5403(c). You are not contracting
with any governmental body but with a consultant; therefore,
the provisions of Section 3(c) are not applicable.
Conclusion: A field auditor in the Department of Health is
a public employee subject to the Ethics Act. As a field
auditor you may accept outside employment preparing cost
reports to be submitted to the Department of Welfare provided
that you:
(1) do not use your public employment or confidential
information received as a field auditor to obtain
outside work; and
(2) do not accept outside employment or a promise of
outside employment based on any understanding that
your official acts as a field auditor would be
influenced thereby.
You may contract with an independent consultant without
reference to the provisions of Section 3(c) of the Act.
Mildred Poliner
August 26, 1981
Page 3
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 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
cc: Arnold H. Muller, MD
Secretary of Health
Sincerely,
dra S. istianson
General Co sel