Loading...
HomeMy WebLinkAbout87-595 StoppSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 July 6, 1987 ADVICE OF COUNSEL Mr. Charles W. Stopp, Esquire 87 -595 1036 Main Street Box 159 Slatington, PA 18080 Re: Conflict of Interest, Assistant Administrator, Director of Social Services, County Nursing Facility, Investor /Officer in Private Personal Care Facility Dear Mr. Stopp: This responds to your letter of June 17, 1987, wherein you requested the advice of the State Ethics Commission. Issue: Whether the State Ethics Act presents any prohibitions upon a person who serves both as assistant administrator and director of social services of a county nursing facility and who counsels individuals that may be on the waiting list for the county facility as to the availability of private personal care or nursing home facilities when this person may become an investor and an officer or member of the board of directors of a private personal care facility. Facts: Your client, hereinafter assistant, is currently both the assistant administrator and director of social services of a county health care facility. The job specifications for both the position of assistant administrator and director of social services have been supplied and are incorporated herein by reference.- The duties of the assistant are generally to assist in the administration of the county home. The assistant aids in the coordination of operational functions and has responsibility for personnel functions at the county health care facility. The assistant conducts special projects and assignments on behalf of the administrator and acts for the administrator in his or her absence. Part of the responsibility for the assistant involves admiting applicants to the county facility after the ultimate approval has been obtained by the county executive. As social services director, the assistant organizes and supervises the activities of the social service department. The assistant is responsible for the total patient care vis -a -vis the social service involvement at the county care facility and also at the annex. The assistant, as social services director, has the responsibility for organizing the department. nd staff to meet the needs of the residents and also to facilitate their adjustment. The duties of the assistant also entail counseling the residents regarding Mr. Charles W. Stopp, Esquire July 6, 1987 Page 2 problems and maintaining contact with the resident's family. The assistant receives supervision from the facility administrator and acts as a liason between the administrator and the resident of the facility. One of the specific duties of the assistant is to counsel applicants who either may not be qualified for admission or who are qualified but are on the waiting lists. In these situations, the assistant suggests to the applicant the availability of either private personal care or nursing home facilities on either a permanent or interim basis. Another duty of the assistant is to determine from the list of applicants, those that are eligible for admission to the county facility. The criteria for eligibility for admission is based upon availability of space and the appropriate level of care required for the individual. The three areas of consideration for admission are financial, social and nedi cal. The assistant determi nes from a list of appl i cants those that are eligible and then provides input and recanrrendations to the county execrative who makes the °final decision. The assistant is contemplating becoming an investor in a private personal care facility. Additionally, the assistant would either became an officer or a member of the board of directors of that facility but would not engage in the day -to -day management. You state that the assistant would notify the county and her supervisor in writing of her interest in the private care facility and would recuse herself from participating, counseling or suggesting to applicants with regard to the availability of private personal care facilities. You have requested the advice of the Ethics Commission whether there are any prohibitions upon the contemplated above outlined activities. Discussion: As an assistant administrator and director of social services, the individual is a public employee as that term is defined in the State Ethics Act, and as such her conduct must conform to the requirenents thereof. 65 P.S. §402. Additionally, it should be noted at the outset that this Commission will not address the issue that you have presented under other codes of conduct or statutes such as the State Adverse Interest Act or the Governor's Code of Conduct. The Ethics Act does provide 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). Mr. Charles W. Stopp, Esquire July 6, 1987 Page 3 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. Under the above provision of law, as a public employee the assistant could use her current public position or any confidential information obtained therein to secure financial gain for herself or for the business with which she contemplates association as an investor and officer /board member. In order to avoid a conflict of interest, it would be necessary for her to advise both the county and her supervisor in writing of her financial interest as well as her position in the private personal care facility. Further, it would be necessary for her to abstain with regard to any involvement, discussions, recommendations, decisions in her public employee capacity rega rdi ng private personal care facilities. As di rector of social services, the assistant could not counsel, suggest or advise applicants as to the availability of the private personal care facilities. Further, in the event that any of the applicants independently decide to enter the private personal care facility on either a permanent or temporary basis, the assistant would have a duty to advise her supervisor and the county that those applicants whom she counseled entered the private personal care facility with which the assistant is associated. Thus, the assistant could not use her position in order to secure financial gain either to herself or the business with which she would be associated. Generally, while there may be a number of other situations which could implicate the above provision of law, it is difficult to conceive herein all the potential situations that may be questionable under the above section of the Act. This advice, therefor, is intended to act as a general guideline. In addition to the foregoing, the Ethics Act provides that this Commission may address other areas of conflict. 65 P.S. §403(d). The parameters of the types of activi ties encompassed, by the above provision, are generally determined through a review of the scope and intent of the State Ethics Act. Generally, the Act was pramul gated in order to ensure the public that the interest of their officials and employees are not in conflict with the public trust. 65 P.S. §401. As such, this Commission has determi ned that public officials would be in a prohibited conflict in ary situation wherein they attempted to serve one or more interests that are adverse. See, Alfano, 80 -007; Fritzi nger, 80 -008. Wi thin this general confl ict provision, it is clear, that a public official should abstain from participating in any matter wherein they have a di rect interest. As previ sou sly noted, the assistant: must advise her supervisor and the county in writing of her interest in the personal health care facility; must not counsel or suggest the possibility of the personal health care facility to applicants; must notify iR writing to her Mr. Charles W. Stopp, Esquire July 6, 1987 Page 4 supervisor and the county as to those applicants who independently decided to enter the personal health care facility with which she is associated and recuse herself from any situation wherein her public employment would a conflict with her interest as an investor /officer /member of the board in the private personal health care facility. Conclusion: The assistant admi nistrator /di rector of social servi ces is a public employee as that term is defined in the State Ethics Act and her conduct must conform to the requirements thereof. While the State Ethics ACt would present no per se prohibition on the activity as outlined above, a number of conflicts of interest could arise in the situation. You are advised that the assistant's conduct must conform with the advice as outlined above. The assistant has a duty to notify the supervisor and the county in writing in these situations as outlined above. Additionally, all potential conflict of interest situations that could implicate the Ethics Act can not be perceived and hence, the advice is intended is a general guideline. Pursuant to Section 7(9) (i i), this Advice enforcement proceeding initiated by the Commiss conduct in any other civil or criminal proceedi disclosed truthfully all the material facts and of in reliance on the Advice given. is a canpl ete defense in any ion, and evidence of good faith ng, provi di ng the requestor has cannii tted the acts compl ained 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 sane, you may request that the ful 1 Commission revi Bl this Advi ce. A personal appearance before the Commission w i l l be scheduled and a formal Opinion fran the Commission w i l l 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. Si ncerely , Vincent . Dopko General Counsel