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HomeMy WebLinkAbout86-581 SacksMyra Werrin Sacks, Esquire 234 Poplar Avenue New Cumberland, PA 17070 STATE ETHICS COMMISSION 308 FINANCE BUILDING PO. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 July 3, 1986 ADVICE OF COUNSEL 86 -581 Re: Attorney, Department of Public Welfare, Investment, Personal Care Boarding Home Dear Ms. Sacks: This responds to your letter of June 2, 1986, wherein you requested the advice of the State Ethics Commission. Issue: Whether the State Ethics Act places any prohibition upon the investment by an attorney employed by the Pennsylvania Department of Public Welfare, in a limited partnership that is constructing a personal care hoarding home. Facts: You currently serve as Assistant Counsel in the Pennsylvania Department of Public Welfare. Generally, you are involved in rendering legal advice, reviewing regulations and litigating matters in areas affecting the Office of Children, Youth and Families; Bureau of Visual Services; the Office of Policy, Planning and Evaluation, Day Care Division;'and the Office of Mental Health, Personal Care Boarding Home Program. You are also assigned other responsibilities and litigation on an as needed basis. You advise that you returned to this employment in February of 1986, after a period of leave, and since that time you have not resumed major responsibilities in the Personal Care Boarding Home area. In 1985, you advise that your aunt expressed an interest in constructing a large personal care hoarding home. To this end, she formed the Orchard Residence, a limited partnership. This partnership is represented by your husband, who is an area attorney. The current general partner for this project is Assisted Living Enterprises (ALE), which is a general partnership composed of your aunt and her husband as well as Memorial Enterprises, Inc. The general partner expects to receive subscriptions for all limited partnership units on or before June 6, 1986. After closig on that date, the Orchard Residence will acquire land and construct a 100 bed personal care Myra Werrin Sacks, Esquire July 3, 1986 Page 2 boarding home. You advise that both you and your husband are interested in acquiring a unit in the limited partnership. This unit will represent 1.25% in the partnership. You have requested the advice of the State Ethics Commission as to whether any prohibitions are placed upon your proposed investment within the purview of the State Ethics Act. Discussion: As an attorney employed by the Pennsylvania Department of Public Wel far . , hereinafter the Department, you are a public employee as that term is defined in the State Ethics Act and, therefore, required to comply with the provisions of that la ,. 65 P.S. §402; Maunus, 84-020B, Thau, 84-020A. Cerierall;!, the State Ethics Act provides as follows: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Within the above provision of law, no public official may use their public position in order to obtain a financial gain for themselves or a business with which they are associated or a member of their immediate family. The Act further defines business with which one is associated as follows: Section 2. Definitions. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or holder of stock. 65 P.S. 402. A member of one's immediate family is also defined in the Act in which provides: Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 402. From a review of the facts, as set forth in your letter of request, it is clear that while the Ethics Act presents no per se prohibition upon your proposed investment plans, the Act would prohibit you from using your position in order to benefit or obtain a financial gain for the business with which you would be associated, i.e. the limited partnership, or your spouse. The Act would further provide that you could not use any confidential information Myra Werrin Sacks, Esquire July 3, 1986 Page 3 obtained in your public position for similar purposes. In this respect, your future activities, in relation to this project, would be limited as a public official insofar as you would be called upon to specifically deal with this particular project. For example, if, as a Department of Public Welfare attorney, you were called upon to take or perform some action or review matters that involved this particular limited partnership or the boarding home which it will construct, then you must abstain from such participation. Similarly, you could not use confidential information obtained in your public position to benefit that project. In the event that such a situation should arise, you are further advised that your interest in the project should be revealed and appropriately recorded within the Department of Public Welfare. Additionally, for the purposes of this advice, we will assume that you wild not be involved in the day -to -day activities of the Personal Care Boarding Home that is constructed and that you will not be called upon, in that capacity, to represent them before your governmental body. Additional advice may be requested in relation to this situation if and when it should arise. In addition to the foregoing, the Ethics Act also provides that all public employees must file a Statement of Financial Interests by May 1 of eaci; year in which they serve. 65 P.S. §404(a). The Act provides that all sources of income, in excess of $500, must be disclosed and further provides that the identity of all businesses for profit on which you serve as an officer, di rector, or owner, or i n which you have a fi nanci al i nterest exceedi ng 5% of the stock at fair market value of the entity, must be revealed. Thus, you should be aware that there may be potential filing requirements imposed by virtue of your investment i n this project. It is also noted that the State Ethics Commission, generally, may only address the question that you have posed within the purview of the State Ethics Act. This Commission, generally, does not have the authority or jurisdiction to issue any opinion as to other provisions of law, such as the Governor's Code of Conduct or the State Adverse Interest Act. Advice regarding any restrictions imposed by those particular provisions of law, should be sought from the appropriate governmental authorities. Conclusion: Generally, the State Ethics Act presents no per se prohibition upon an attorney for the Pennsylvania Department of Public Welfare and her spouse investing in a limited partnership that is constructing a personal care boarding home. The attorney may not, however, use her public position or any confidential information obtained in that public position to benefit that partnership, project, or spouse. As a public employee, you must avoid other areas of possible conflict as they develop and as a result, you may be called upon to request further advice from this Commission should you become involved on a more active basis in this project. The Act, however, generally would present no par se prohibition upon the investment in this project. Additionally, you may wish to seek the advice of other authorities relating to any other provisions of law that may be applicable. Myra Werrin Sacks, Esquire July 3, 1986 Page 4 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 i n any other civil or crimi nal proceedi ng, providi ng 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 k;•:. 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 p.irsonai appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in wwri t i rg , to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. ,JC/ sfd Si nc ohn J. • nti no Gener. Counsel