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HomeMy WebLinkAbout91-572 UlrichDear Ms. Ulrich: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 5, 1991 91 -572 Ms. Sally A. Ulrich, Counsel State Board of Psychology Commonwealth of Pennsylvania, Department of State Bureau of Professional and Occupational Affairs 619 Transportation and Safety Building Harrisburg, PA 17120 Re: Conflict, Public Official /Employee, Board Member, State Board of Psychology, Business With Which Associated, Continuing Education for Psychologists This responds to your letters of June 28, 1991 and July 10, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a Member of the State Board of Psychology with regard to his interest in a business established to provide continuing education to psychologists, where the Board promulgates regulations regarding continuing education for psychologists. Facts: As Counsel for the State Board of Psychology, you seek the advice of the State Ethics Commission on behalf of a Board Member, Edward C. Brennan, Ph.D. Dr. Brennan was appointed to the State Board of Psychology (the "Board ") in April of 1989. Prior to Dr. Brennan's appointment, in approximately June 1986, the Board began discussing, pursuant to its authority under amendments to the Professional Psychologists Practice Act, the promulgation of regulations that would make continuing education ( "CE ") mandatory for psychologists. These discussions were held in regularly scheduled Board meetings which were open to the public. The Pennsylvania Psychological Association, for example, closely monitored the Board's development of CE regulations and submitted recommendations for the review of the Board. More than one year after Dr. Brennan's appointment to the Board, during its July 1990 meeting, the Board by uriaximous vote approved a CE regulation as proposed rulemaking. Ms. Sally A. Ulrich September 5, 1991 Page 2 In the spring of 1989, Dr. Brennan discussed the possibility of forming a professional affiliation with two psychologists from the Scranton area, Dr. Chiampi and Dr. Pryor, to apply for American Psychological Association ( "APA ") approval as CE providers. Dr. Chiampi, Dr. Pryor and Dr. Brennan met on several occasions during the spring and summer of 1989 to develop their ideas. In the fall of 1989, Dr. Brennan contacted Dr. Hall and requested a copy of the submittal Dr. Hall had made to APA when he sought approval for Psycon. From the fall of 1989 through completion of the .process in March of 1991, Dr. Chiampi, Dr. Pryor and Dr. Brennan used Dr. Hall's material and APA guidelines in developing a proposal in the name of the Institute of Psychological Advancement for APA approval as a CE sponsor. The proposal was submitted in February of 1991 and notification of approval was received in March of 1991. Additionally, the Institute submitted a request for approval of fictitious name to the Corporation Bureau in February of 1990. You note that under the Bgard's proposed regulations (published in the Pennsylvania Bulletin on May 11, 1991) providers that meet APA standards are automatically acceptable to the Board. Thus, the Board itself would not be called upon to Dr. Brennan has an interest in a business which provides CE to psychologists. Although the business was not approved as a CE provider until 1991, a proposal for approval was being developed between 1989 and 1991. You have submitted a memorandum from Dr. Brennan addressed to you regarding "CE Provider status and membership on SBOP," in which Dr. Brennan recounts the evolution of the business he has established. Said memorandum is incorporated herein by reference. Although Dr. Brennan cannot establish the exact date when he began to formulate the idea of establishing a professional organization /affiliation to provide CE to psychologists, he does provide certain dates which he believes to be benchmarks in formulating and developing his business, the "Institute for Psychological Advancements." In September of 1988, Dr. Brennan met with a colleague, Dr. Harold Hall, and discussed mutual interests in the area of continuing education, and specifically Dr. Hall's company, "Psychological Consultants" ( "Psycon "). Psycon is a private training, consulting and research organization formed in 1984 for the purpose of promoting applied clinical and forensic psychological methods to human aggression. Dr. Brennan was appointed Chair of the Advisory Board of Psycon in September, 1989. Ms. Sally A. Ulrich September 5, 1991 Page 3 evaluate Dr. Brennan's business for purposes of approval as a CE provider. You specifically inquire as to whether Dr. Brennan's business affiliation is a conflict of interest, disqualifying him from membership on the State Board of Psychology. You further inquire as to whether, if disqualification is not indicated, Dr. Brennan should recuse himself from participating in any discussions, policymaking, or voting with regard to continuing education. Discussion: It is initially noted that your inquiry may only be addressed with regard to prospective conduct. A reading of Sections 7(10) and (11) of the Ethics Act makes it clear that an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Law violations by a person who is subject to the Ethics Law. This Advice expressly does not consider past conduct. As a Member of the State Board of Psychology, Dr. Brennan is a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or Ms. Sally A. Ulrich September 5, 1991 Page 4 "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member or his immediate family or a business with which he or a member of . his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "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 has a financial interest. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(j) of the Ethics Law provides as followss ection 3. Restricted activities. Ms. Sally A. Ulrich September 5, 1991 Page 5 (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee, who in the discharge of his official duties, would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is 'made as otherwise provided herein. If a conflict exists, Section 3(j) requires the public official /employee to abstain as well as file, a written memorandum to that effect with the person recording the minutes or supervisor. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s), then in that event participation is permissible provided the disclosure requirements noted above are followed. Turning to your specific inquiries regarding prospective conduct, Dr. Brennan could not use the authority of his office or Ms. Sally A. Ulrich September 5, 1991 Page 6 any confidential information received through his holding public office, for the private pecuniary benefit of himself, any member of his immediate family, or any business with which he or a member of his immediate family is associated. It is clear that Dr. Brennan would have a conflict of interest as a Member of the State Board of Psychology with regard to his business established to provide continuing education to psychologists. The Institute for Psychological Advancement is clearly a business with which Dr. Brennan is associated, as defined under the Ethics Law. As a Member of the Board, Dr. Brennan's participation in any fashion, including but not limited to discussions, policymaking and voting with regard to continuing education for psychologists would be a use of the authority of his office which could result in a private pecuniary benefit for himself and the business with which he is associated. For example, if the Board were to increase the number of hours of CE mandated for psychologists, such could result in a private pecuniary benefit to Dr. Brennan's business as a CE provider. In Washick, Advice 90 -563, it was similarly concluded that a special education teacher /pre - referral consultant for the Luzerne County Intermediate Unit was prohibited under Section 3(a) of the Ethics Law from seeking to have the intermediate unit purchase his copyrighted program, because such would be a use of the authority of his office as a pre- referral consultant to obtain a private pecuniary benefit. In this case, it is additionally noted that conflicts of interest could arise for Dr. Brennan with regard to Psycon as well as his own business. As Chair of the Advisory Board of Psycon, Dr. Brennan is also associated with that business as defined in the Ethics Law. Such conflicts of interest would not disqualify Dr. Brennan from membership on the State Board of Psychology. Section 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities or employment; however, the public official /employee may not use the authority of office for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. A public official /employee must exercise caution so that his private business activities do not conflict with his public duties. Crisci, Opinion 89 -013. Thus, the restrictions of Section 3(a) would not require that Dr. Brennan remove himself as a Board Member, but rather would require that he abstain from any — participation whatsoever with regard to matters pertaining to business(es) with which he is associated, and specifically pertaining to continuing education for psychologists. Further, in the event that a business with which Dr. Brennan is associated Ms. Sally A. Ulrich September 5, 1991 Page 7 has a matter pending before the State Board of Psychology or if Dr. Brennan as part of such official duties must participate, review or pass upon that matter, a conflict would exist. Mills ;, Opinion 89 -024. In those instances, it will be necessary that he be removed from that process. Dr. Brennan would be required to comply with the disclosure requirements of Section 3(j) of the Ethics Law, set forth above, in each instance where a conflict of interest exists. The Ethics Law would restrict the use of authority of office to obtain any business in a private capacity. Furthermore, a public official /employee may not perform private business using governmental facilities or personnel. In particular, the governmental telephones, postage, staff, equipment, research materials, personnel or any other property could not be used as a means, in whole or part, to carry out private business activities. In addition, the public official /employee may not during government working hours, solicit to promote such business activity. Pancoe, supra. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically note addressed herein is the applicability of the Governor's Code of Conduct and /or professional codes of conduct which may be applicable to Dr. Brennan. Conclusion: As a Member of the State Board of Psychology, Dr. Brennan is a public official subject to the provisions of the Ethics Law. Dr. Brennan's business, the "Institute for Psychological Advancement," is a business with which he is associated as defined under the Ethics Law. Dr. Hall's business, "Psychological Consultants," for which Dr. Brennan serves as Chair of the Advisory Board, is also a business with which Dr. Brennan is associated as defined under the Ethics Law. Dr. Brennan would have a conflict of interest with regard to matters before the State Board of Psychology where the use of his authority of office or confidential information obtained by his holding office would result in a private pecuniary benefit to Dr. Brennan, a member of his immediate family, or a business with which he is associated. Such conflicts would include, but would not be limited to, matters pertaining to continuing education for psychologists. Section 3(a) of the Ethics Law would not require that Dr. Brennan remove himself € ;om membership on the State Board of Psychology, but would require that he abstain from participating in any way or voting in matters where he has a conflict of interest. The disclosure requirements of Section 3(j) of the Ethics Law must be observed. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Ms. Sally A. Ulrich September 5, 1991 Page 8 Pursuant to Section 7(11), 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. such. This letter is a public record and will be made available as 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. ncerely, ,S)st'0 Vincent . Dopko, Chief Counsel