Loading...
HomeMy WebLinkAbout88-573 TrovalliMr. Mark A. Trovalli 83 -573 Park Penn Building Room 20 Harrisburg, PA 17112 - Re: Simultaneous Service, Medical Assistance Program Specialist II in the Department of Public Welfare and Free -Lance Writer of Contract Proposals Dear Mr. Trovalli: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 2, 1988 This responds to your letter of April 22, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restrictions upon a Medical Assistance Program Specialist II in the Office of Medical Assistance in the Department of Public Welfare from also serving or being employed as a Free -Lance Wr of Contract Proposals, Audit Reports and Company P Material. Facts: In your advice request you state that you are currently considering supplementary employment in addition to your position as Medical Assistance Program Specialist II in the Office of Medical Assistance, hereinafter Office, in the Department of Public Welfare, hereinafter DPW. You state that you are considering working as a free -lance writer either on a contract or commissior basis with Heritage Information Systems, Inc. whereby you would assist in writing or editing contract proposals, audit reports and company promotional materials. You then state that since you would be offering your services on a free -lance basis, you would not want to be restricted to or limited to foregoing company. You describe Heritage Information System as a national independent pharmacy audit group which contracts with insurance companies, private organizations and state agencies. As to the prescription drug program, you state that the contract requires that the company provide a certain number of compliance and procedure audits of the member pharmacies, the results of which audits enable the client to further assess the integrity of the program. After noting that Mr. Mark A. Trovalli June 2, 1988 Page 2 Heritage has previously contracted with DPW, you state that they have completed all of their pharmacy audits but they make bid on future contracts. You then describe the duties and responsibilities of your position of a Medical Assistant Program Specialist II as follows: To assess office wide EDP Applications, equipment and contractual needs including the preparation of the annual multi -year electronic data processing plan for the Office; to represent the Office on committees and to interface with other State agencies on EDP related issues; to evaluate new developments in micro computer hardware and act as a liaison with the Office of Information Systems on EDP Hardware; to manage the processes whereby program office users may access available information through the Office as well as data extraction and analysis function for data requests which originate from within the program office and finally to represent the Office on technical issues related to data interpretations and collection. You specifically state that your current job duties do not involve participating or negotiating or making any decisions awarding contracts, fixing rates or making recommendations of a discretionary nature with regard to auditing, inspecting or other regulatory matters of any business or organization. After expre your view that you do not feel that your employment with Heritage would represent a conflict, you request advice from the Commission as to what restrictions the Ethics Act may impose upon you regarding your outside employment. Discussion: As a Medical Assistance Program Specialist II for DPW, you are a "public employee" as that term is defined in the Ethics Act. See Ginsberg, Advice 87 -500; 65 P.S. §4 51 Pa. Code X1.1. As such, your conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. Section 3(a) of the Ethics Act provides: (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 Mr. Mark A. Trovalli June 2, 1988 Page 3 family, or a business with which he is associated. 65 P.S. 403(a). Section 3(a) basically provides that a public 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 employee to gain or benefit for himself or a member of his immediate family or a business with which he is associated which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed he Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987). Thus, under this provision, a public employee may not use his public position to secure any financial gain for himself or a member of his immediate family or a business with which he is associated unless it is provided for by law. Domalakes Opinion, 85 -010. However, as outlined above, there does not appear to be a real possibility of any financial gain or inherent conflict arising if you were to serve both as a public employee and as Free- Lance Writer. Basically, the Ethics Act does nor state that it is inherently incompatible for a public employee to serve or be employed as a free -lance writer. The main prohibition under the Ethics Act and Opinions of the Ethics Commission is that one may not serve the interests of two persons, groups, or entities whose interests may be adverse. See Alfano Opinion, 80- 007. Section 3(b))of the Ethics Act provides: (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 employee or candidate for public office Mr. Mark A. •rrovalli June 2, 1988 Page 4 the vote, official action, or judgment of the public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Reference to Section 3(b) of the Ethics Act is made in order to provide a complete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, which must be observed, a public employee must neither offer nor accept anything of value on the understanding or with the intention that the public employee's judgement would be influenced thereby. It is assumed such a situation does not exist here. Reference to this Section is added 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). However, under Section 3(d) of the Ethics Act, the State Ethics Commission may address other areas of possible conflicts of interest. 65 P.S. §403(d). The parameters of the types of activities encompassed by this provision of law may generally be determined by reviewing the purpose and intent of the Ethics Act. The Ethics Act was promulgated in order to ensure that the financial interests of public employees do not conflict with the public trust or create the appearance of a conflict with the public trust. Although Section 3(a) of the Ethics Act would not prohibit your simultaneous service, section 3(d) of the Ethics Act would impose certain restrictions upon you. You could not do any of your free -lance writing or outside work during your working hours with DPW; likewise you could not use any of the staff or facilities or equipment of DPW to aide you in performing your outside free -lance work. See Dorrance, Order 456. Further, you could not use any confidential information which you may have in your public employment to the benefit of your free -lance writing work or for the benefit of your employer Heritage Information Systems or any other company with which you may be employed. Likewise, in the event that you would ever come in contact in your position as Medical Assistance Program Specialist II with Heritage or some other outside employer, you could not Mr. Mark A. Trovalli June 2, 1988 Page 5 participate in those matters and you would be required in writing to notify your superior of your nonparticipation as well as the reason for that action. Lastly, it must be noted that the propriety of your proposed conduct has only be addressed under the Ethics Act; the applicability of any other statute„ code, ordinance, regulation: or other code of conduct has not been addressed in this advice. Conclusion: As a Medical Assistance Program Specialist II for DPW, you are a "public employee" subject to the provisions of the State Ethics Act. As a public employee, you may, consistent with Section 3(a) of the Ethics Act, simultaneously serve in the positions of Medical Assistance Program Specialist and Free -Lance Writer. However, under Section 3(d) of the Ethics Act, you must observe the restrictions upon your conduct as outlined above. Lastly, the propriety of the proposed course of conduct has only been addressed under the 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. 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 former 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, Vincent . Dopko, General Counsel