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HomeMy WebLinkAbout93-571 SciottoCharles T. Sciotto Deputy Secretary for Employee Relations Office of Administration Bureau of Personnel 517 Finance Building Harrisburg, PA 17120 Re: Public Employee /Official, FIS, Council Member, Children's Health Advisory Council. Dear Mr. Sciotto: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 9, 1993 93 -571 This responds to your letter of May 24, 1993, in which you requested advice from the State Ethics Commission. Issue: Whether an individual serving as a Member of the newly created Children's Health Advisory Council is to be considered a "pUblic official" as that term is defined in the Public Official and Employee Ethics Law, and therefore, is required to comply with the financial reporting and disclosure provisions of the State Ethics Law. Facts: As Deputy Secretary for Employee Relations for the Office of Administration, you request an advisory from the State Ethics Commission regarding the status of Members serving on the Children's Health Advisory Council. This request is the result of an inquiry from the Chief Counsel's Office of the Department of Health as to the applicability of the Ethics Law on the Council Members. You specifically ask whether the Members are public officials and subject to the financial disclosure provisions of the Ethics Law. You have enclosed a copy of the Children's Health Care Act, Act of 1992, No. 113, ( "Act "), which establishes the Council and such is incorporated herein by reference. Section 701(i) of the Act establishes the Children's Health Advisory Council as an advisory council within the Department of Health. The Council consists of twelve (12) members. These members include the Secretary of Health, Secretary of Welfare, Insurance Commissioner, Chair and Minority Chair of the House and Charles T. Sciotto June 9, 1993 Page 2 Senate Health and Welfare Committees, and five individuals from various areas dealing with children's health issues appointed by the Secretary of the Health Department. Section 701(i) identifies who the Chair of the Council shall be, establishes quorum, sets the terms of the members, and indicates that no compensation shall be paid to the Council members except for actual and necessary expenses incurred in the performance of their duties. The Council reviews and comments on proposals submitted by any potential grantee of the Children's Health Fund. The Council may make recommendations to the Insurance Department. In conjunction with the Department of Health, the Council reviews and evaluates the accessibility and availability of services delivered to children. The Council receives from the Insurance Commission copies of all relevant information and data filed by each health service corporation and hospital plan corporation doing business in Pennsylvania, or by any other grantee, as part of an insurance rate filing request for programs receiving grants. Under Section 702 of the Act, regarding the Outreach Plan ( "Plan "), the Council shall review the plan and the performance of the entities receiving funding. from the plan fund at reasonable intervals and recommend changeb in the plan or in the implementation of the plan as it deems in the best interests of the children to be served. Finally, under Section 702, the Council, in conjunction with the grantees, the Insurance Department, the Department of Education, the Department of Health and the Department of Public Welfare, shall seek funding from private foundations, federal agencies and other funding sources for the development and implementation of the plan. Discussion: You question whether the Council's duties and responsibilities are within the definition of "public official ". Accordingly, we have been asked to review the question of whether the Council Members are subject to the financial reporting and disclosure requirements of the State Ethics Law. We note that, for the sake of this response, we are relying primarily on the Legislation which creates the Council. The primary question to be answered is whether the Council Members are to be considered a "public official" as that term is defined in the State Ethics Law: Section 2. Definitions. "Public Official." Any person elected by the public or elected or appointed by a governmental body, or an appointed official in the Executive, Legislative or Judicial Branch Charles T. Sciotto June 9, 1993 Page 3 of the State or any political subdivision thereof, provided that it shall not include members of advisory boards. that have no authority to expend public funds other than reimbursement for personal, expense, or to otherwise exercise the power of the State or any political subdivision thereof. It is necessary to analyze the duties, functions and responsibilities of the Council Members in order to determine whether they are covered under the definition of public official. The powers or duties of the Council are set forth above. Based upon the definition of "public official" and in light of the limited functions in such position, we conclude that the Council Members are not to be considered a "public official" as that term is defined in the State Ethics Law. Thus, because Council Members do not fall within the classification of the term "public official," they would not be subject to the financial reporting and disclosure requirements of the State Ethics Law. Accordingly, they would not be required to file the Statement of Financial Interest for the years in which they serve. Since Council Members are not public officials as that term is defined under the Ethics Law, they would not be restricted by the Ethics Law subject to the qualification that Sections 3(b) and 3(c) apply to everyone. 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. Lastly, 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. Conclusion: In the position of Member of the Children's Health Advisory Council, the Members are not to be considered public officials as defined in the State Ethics Law. Accordingly, they would not be subject to the reporting and disclosure requirements of the State Ethics Law and need not file a Statement of Financial Interests. Sections 3(b) and (c) of the Ethics Law are applicable Charles T. Sciotto June 9, 1993 Page 4 to everyone. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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. 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 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 513.2(h). ncerely, Vincent \3. Dopko Chief Counsel