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HomeMy WebLinkAbout86-611 SoltMs. Shirley A. Solt 3324 Macungie Road Macungie, PA 18062 Dear Ms. Solt: Meiling Address: STATE ETHICS COMMISSION P.O. BOX 11470 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 October 7, 1986 ADVICE OF COUNSEL 86 -611 Re: Employee, Department of Public Welfare, Owner, Personal Care Boarding Home This responds to your letter of Septemher 16, 1986, wherein you requested the advice of the State Ethics Commission. Issue: Whether the State Ethics Act presents any prohibition upon an employee of the Pennsylvania Department of Health owning and operating a personal care boarding home. Facts: You advise that you are currently an employee of the Pennsylvania Department of Health, Division of Long Term Care. Your position is classified as a Health Facility Quality Examiner. You are currently considering owning and operating a personal care hoarding home. Such a home must he licensed by the Pennsylvania Department of Public Welfare. In your position, with the Pennsylvania Department of Health, you are responsihle for surveying and inspecting an assigned group of health facilities to determine whether there operation is in accordance with the standards, rules and regulations in the Commonwealth of Pennsylvania. In this respect, you are responsible for evaluating the physical plant, examining and evaluating health facility records, reviewing policies and procedures and evaluating patient care. Work includes preparing and reviewing detailed reports_ on survey findings and providing consultive services to facility hoards and staff in areas such as staff management, nursing services and physical facilities. You also are responsible for investigating complaints and are responsihle for recommending licensure or certification. We have reviewed your classification specification (No. 3924) and have incorporated State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Ms. Shirley A. Solt Octoher 7, 1986 Page 2 that document herein hy reference. We also have reviewed your joh description which indicates the types of institutions for which your services are rendered. These include, skilled nursing facilities, intermediate care facilities and county homes and state owned facilities. We have also incorporated herein by reference your joh description. Discussion: As a Health Facility Quality Examiner you are a puhlic employee as that term is defined in the State Ethics Act. 65 P.S. MO2. As such, your conduct must conform to the requirements of that law. The State Ethics Act generally does not prohibit an individual, who is a puhlic employee, from participating in activities that require licenses from other Commonwealth agencies. In the instant situation, the Ethics Act provides as follows: Section 3. Restricted activities. (a) No puhlic official or puhlic employee shall use his public office or any confidential information received through his holding public office to ohtain financial gain other than compensation provided hy 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, you may not use your public position or any confidential information obtained therein in order to ohtain a financial gain for yourself or for a business with which you are associated. In this respect, there is no douht that you could not,' as an employee of the Department of Health, perform any activities in relation to the facility that you would own and operate. From a review of your letter, it is not clear as to what, if any, responsibilities you, the Department of Health or the division for which you work, would have in relation to this entity. In the event that the Department of Health or in particular your division would have any responsibilities in examining, investigating, and inspecting or evaluating the facility that you would operate, you, as a public employee, could not participate in that activity. Additionally, your interest in this activity must be made known to the Department of Health and your ahstention should he appropriately recorded. In addition to your abstention in matters regarding your own facility, you must not use any confidential information obtained in your position with the Department of Health to benefit your own facility. In addition to the foregoing, this Commission may also address other areas of conflicts. 65 P.S. §4O3(d). In this respect, a conflict of interest would develop when a puhlic employee attempts to serve one or more interests that are adverse. See, Alfano, 80 -007. In light of the fact that it is not clear as to whether the Department of Health will serve or play any role in the inspection of your facility, it is at this time not possible to foresee every potential conflict of interest that could arise. In the event that the Department of Health or your co- employees would have some role in relation to Ms. Shirley A. Solt October 7, 1986 Page 3 your health care facility, then additional questions may arise and the additional advice of this Commission may he necessary as to what role you may play hefore your own governmental body in representing your health care facility. Sacks, 86 -581. Additionally, we are assuming for the purpose of this advice, that you have no influence or responsihilities in relation to the Pennsylvania Department of Puhlic Welfare and that the activities of that department are conducted without your advice or consent. Therefore, the Department of Puhlic Welfare's activities in relation to licensing your facilities would not involve any activity on your part as a puhlic official. Recause of this, it does not appear as though there would he any restrictions placed upon your suhmission of licenses to the Pennsylvania Department of Puhlic Welfare. Finally, it is noted that the State Ethics Commission 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 he sought from the appropriate governmental authorities. Conclusion: Generally, the State Ethics Act presents no per se prohibition upon an employee of the Pennsylvania Department of Health owning and operating a personal care boarding home which must be licensed by the Pennsylvaia Department of Puhlic Welfare. Your activity,'as a public employee, is suhject to the provisions of the State Ethics Act as set forth above. Pursuant to Section 7(9)(ii), this Advice is a complete defense in any enforcement proceeding initiated by the 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 puhlic record and will he 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 hefore the Commission will he scheduled and a formal Opinion from the Commission will he issued. Any such appeal must he made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Since ohn Gen ontino al Counsel