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HomeMy WebLinkAbout88-550 MarshallJames S. Marshall, Esquire Department of Public Welfare P.O. Box 2675 Harrisburg, PA 17105 -2675 Dear Mr. Marshall: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 April 18, 1988 ADVICE OF COUNSEL 88 - 550 Re: Conflict of Interest, Public Official, Deputy Secretary of Welfare, Board Member of a Non - Profit Association Involved with the Department of Public Welfare This responds to your letter of February 22, 1988, with supplements, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restriction upon the Deputy Secretary of Welfare from accepting membership on the board of a non - profit association which may contract with the Department of Public Welfare. Facts: You state that on behalf of Steven M. Eidelman, Deputy Secretary for Mental Retardation, the Department of Public Welfare (DPW) you request advice from this Commission concerning Mr. Eidelman's contemplated membership on the Board of the Accreditation Council for the Developmentally Disabled (ACDD). After noting that Mr. Eidelman is in charge of the DPW's Mental Retardation Program which operates and manages the Commonwealth's facilities for mentally retarded persons, the funding of county programs and the licensing of mental retardation facilities, you advise that Mr. Eidelman has been requested by the National Association of Social Workers (NASW) to represent that organization on the board of ACDD. You then state that by serving as NASW's representative on ACDD's board, Mr. Eidelman would not pay dues, would not have authority to appoint or remove a director of ACDD and would not serve as a delegate at the ACDD's Annual Meeting but would merely represent that organization as NASW's appointee. In this regard, you note that Mr. Eidelman would not be paid for performing his duties as a representative of NASW on the board of ACDD but ACDD would reimburse him for transportation, hotel accommondations and meals. It is then noted that Mr. Eidelman, as Deputy Secretary, will encourage the State Mental Retardation Centers and facilities to meet ACDD standards so as James S. Marshall, Esquire April 18, 1988 Page 2 to become accredited by ACDD which will result in contracts between ACDD and some of the centers. ACDD is a non - profit organization, the purpose of which is to improve the station of people with developmental disabilities through a quality assurance program which will develop and continually refine a set of standards for quality services to those individuals by conducting surveys to assess compliance with the standards and to provide training to persons who deliver said services. In Mr. Eidelman's capacity as Deputy Secretary, you note that he will have an active involvement with ACDD: he will have direct contact with the management staff of ACDD and he will be instrumental in having the office of mental retardation develop contractual relationships with national accrediting bodies. You then note that although it is possible that the office of Mental Retardation may not contract with ACDD, said office has made a request to the Deputy Secretary for Administration that ACDD be one of the agencies with which the department will contract next year. In this regard, Mr. Eidelman, as Deputy Secretary and head of the Office of Mental Retardation, would be responsible for negotiating the content of the contract with ACDD but the major work would be assigned to staff who would also have the responsibility of amending DPW's regulations so as to be consistent with the national trends but Mr. Eidelman would be responsible for their work. Under these facts and circumstances you request advice as to whether it would a conflict under the Ethics Act for Mr. Eidelman to accept board membership on ACDD. Discussion: As a Deputy Secretary for the Department of Public Welfare, Mr. Eidelman is a public employee within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. §402; 51 Pa. Code §1.1. As such, he is subject to the provisions of the Ethics Act. Section 3(a) of the Ethics Act provides: 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). Section 3(a) basically provides that a public official or employee may not use his public office or confidential information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family or a business with which he is associated. Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself or a member of his immediate family which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have James S. Marshall- Esquire April 18, 1988 Page 3 been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983) . See also Yocabet v. State thi cs Commission, Pa. Comm. , 531 A.2d 536 (1987). Thus, under this provision, a public official may not use his public position to secure benefits for himself or a member of his immediate family which are not provided for by law, Domalakes, Opinion 85 -010; likewise, the receipt of private financial gain or benefit through use of office is not permitted under this section, Huff, Opinion 84 -015. 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). Section 3(b) of the Ethics Act must be referenced in order to provide a complete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of section 7. 65 P.S. 403(d). Under the above provision of law, the Ethics Commission, however, is also empowered to address other areas of possible conflict pursuant to Section 3(d). 65 P.S. §403(d). Fritzinger, Opinion 80 -008; DeBenedictis, Opinion 86 -002. The parameters of the type of activity encompassed by this provision are generally reviewed in light of the preamble to the Ethics Act which enunciates the legislative intent of the Act. The intent and purpose of the Act is to strengthen the faith and confidence of the people in their James S. Marshall, Esquire April 18, 1988 Page 4 government by assuring the public that the financial interests of the holders of public office present neither a conflict nor the appearance of a conflict with the public trust. A public official or employee, pursuant to this provision, is to ensure that their personal financial interests present neither a conflict nor the appearance of a conflict with the public trust. 65 P.S. §401. Such a conflict may exist where an individual represents one or more adverse interests, Alfano, Opinion 80 -007; where an individual serves in positions that are incompatible or conflicting; Nelson, Opinion 85 -009, or where such an official or employee accepts compensat7 on to whip he is not entitled. Domalakes, supra. In applying the provisions of Section 3(a) and 3(d) to the instant matter, it must be initially noted that the Commission has determined that a public official or employee may not serve the interest of two parties that are adverse. See Alfano, supra. In this situation, if Mr. Eidelman were to accept membership on ACDD, he would be in an adverse position because during the negotiation process of any contract between DPW and ACDD, he would be representing the interest of DPW as one party to the proposed contract while at the same time he would be on the board of ACDD, which is the other party to the contract. It would make no difference that ACDD is a non - profit corporation which, like DPW, has goals of advancing the quality of life of people with developmental disabilities. The adversity of interest arises in the contracting situation. Further, suppose that a contract was entered into and a dispute arose under that contract. Once again, Mr. Eidelman would be a representative of both parties, that is, DPW and ACDD, who would be in a contractual dispute. Thus, under Section 3(a) and (d) of the Ethics Act, Mr. Eidelman could not simultaneously sit as a member of the board of ACDD while serving as Deputy Secretary of DPW. Further, under Section 3(d) of the Ethics Act, which is concerned with appearances of a conflict with the public trust, a perception could develop regarding Mr. Eidelman's position as Deputy Secretary relative to the contracts with ACDD if Mr. Eidelman were a board member of that organization that would pay for Mr. Eidelman's transportation, hotel accommondations and meals relative to ACDD business. Therefore, under Section 3(d) of the Ethics Act, Mr. Eidelman should not accept membership on the board of ACDD to avoid a conflict of interest or even the appearance of a conflict of interest with the public trust. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As Deputy Secretary of DPW, Mr. Eidelman is a public employee subject to the provisions of the State Ethics Act. Both under Sections 3(a) and 3(d) of the Ethics Act, Mr. Eidelman may not as Deputy Secretary of DPW accept membership on the board of ACDD when DPW contemplates negotiating and entering into contracts with ACDD. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. James S. Marshall, Esquire April 18, 1988 Page 5 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 4oy 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. Sincerely, Vi ncent J . Dopko General Counsel