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HomeMy WebLinkAbout87-500 GinsbergSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 January 6, 1987 ADVICE OF COUNSEL Mr. Daniel Ginsberg 87 -500 Office of Mental Health Northeast Field Office Room 321 Scranton State Office Building 100 Lackawanna Avenue Scranton, Pennsylvania 18503 Re: Conflict of Interest, Employee, Department of Public Welfare, Director, Non - Profit Corporation Dear Mr. Ginsberg: This respnds to your letter of November 26, 1986, wherein you requested the advice of the State Ethics Commission. Issue: Whether you may serve on the board of directors of two non - profit corporations while you are an employee of the Pennsylvania Department of Public Welfare. You currently serve as a Personal Care Homes Licensing Worker in the Pennsylvania Department of Public Welfare. You further advise that you are also serving on the boards of directors of two community service organizations: United Cerebral Palsy of Lackawanna County (UCP) and the United Neighborhood Services Organization (UNS). You advise that UCP, generally, is involved in serving handicapped individuals and UNS is an agency that offers various services to the indigent. You advise that several of the programs, operated by these organizations, are funded through the Pennsylvania Department of Public Welfare. You further advise that one program, the Day Care Program of UNS, is licensed and monitored by the Day Care Program Unit of the Pennsylvania Department of Public Welfare. In relation to your position with the Department of Public Welfare, you generally are involved in the review, inspection and recommendation of applications and facilities of adult personal care home programs. In this respect, you inspect personal care home programs for adults. You review written contracts between providers and residents, resident records, assessment staffing patterns, menus, and further insure that physician certificates are correct and updated. You also are involved in insuring that Mr. Daniel Ginsberg January 6, 1987 Page 2 residents medications are properly administered and stored and that the buildings are free from hazards in accordance with legal requirements and established departmental rules and regulations. You follow -up on complaints registered against personal care homes through investigation. We have reviewed your job description and have incorporated that document herein by reference. You have requested the advice of the State Ethics Commission as to whether the State Ethics Act would present any prohibitions upon your service on the aforementioned community service organization board of directors while being publicly employed by the Pennsylvania Department of Public Welfare. Discussion: In your position, as an Adult Personal Care Home Licensing Worker in the Pennsylvania Department of Public Welfare, you are clearly a public employee as that term is defined in the State Ethics Act. 65 P.S. §402. As such, your conduct must conform to the requirements of that law. Human Relations Representatives, 86 -011. Additionally, we must note at the outset, that the State Ethics Commission, as a statutory entity, has limited jurisdiction in interpreting various provisions of law. Thus, the response that we set forth herein is strictly limited to the review of the instant situation within the purview of the State Ethics Act. We have not reviewed this matter under any other codes of conduct such as the State Adverse Interest Act, 71 P.S. §776.1 et. seq., or the Governor's Code of Conduct. Within the purview of the State Ethics Act your conduct must be governed by several sections of the State Ethics Act. Generally, the Act provides, in part, 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 this provision, you, as a public employee, may not use your position or any confidential information obtained through your holding of public employment with the Pennsylvania Department of Public Welfare to obtain any benefit for yourself or the entities with which you are associated. Generally, this Commission has held in the past, that even where a public official serves as a director for a non - profit community service organization, his conduct, in relation to what he may do for that organization and his use of public office to aid that organization, are strictly limited by the provisions of the State Ethics Act. See, Cohen, 85 -544. Mr. Daniel Ginsberg January 6, 1987 Page 3 In addition to the foregoing, the State Ethics Commission may also address other areas of possible conflict. 65 P.S. §403(d). A conflict of interest will develop in any situation where a person serves or attempts to serve one or more interests that are adverse. Alfano, 80 -007. Generally, as set forth in the preamble to the State Ethics Act, the conduct of public employees must insure the public that their interests do not conflict with the public trust. 65 P.S. §401. In light of the foregoing and in order to avoid any such conflict, you should not participate as a employee of the Pennsylvania Department of Welfare in any matter that relates to either of these corporations. You should not attempt to influence or otherwise become involved in the department's dealing with these corporations. Additionally, as noted previously, you may not use any confidential information to which you have access through your department to benefit the corporations with which you are involved. In addition to the foregoing, we note that the Ethics Act also provides as follows: Section 3. Restricted activities. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). We make reference to this provision of law not to imply that there has or will be any violation thereof but only to provide a complete response to your question. Conclusion: While there is no outright prohibition upon your service as a member of the board of directors of the community service corporations set forth above, you are a public employee and your conduct must conform:to the requirements of the State Ethics 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. This letter is a public record and will be made available as such. Mr. Daniel Ginsberg January 6, 1987 Page 4 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 will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Sin ohnJ. i Gener. Counsel