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HomeMy WebLinkAbout97-605 Wilt-SeibertSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 4, 1997 Maribeth Wilt- Seibert, Esquire Assistant Counsel Unemployment Compensation Board of Review Department of Labor & Industry 7th and Forster Streets Room 1623 Harrisburg, PA 17121 -0001 97 -605 Re: Conflict, Public Official /Employee, Private Employment or Business, Attorney, Unemployment Compensation Board of Review, Department of Labor and Industry, Regional Advisory Council Member, Special Kids Network, Community Systems Development, Milton S. Hershey Medical Center of the Pennsylvania State University. Dear Ms. Wilt- Seibert: This responds to your letter of July 23, 1997, by which you requested advice from the State Ethics Commission. Issue: Whether an attorney for the Department of Labor and Industry, Unemployment Compensation Board of Review is prohibited or restricted by the Public Official and Employee Ethics Law from serving as a non -paid Regional Advisory Council Member for a Community Systems Development Program within the "Special Kids Network," in addition to public service. Facts: As an Assistant Counsel with the Department of Labor and Industry (L &I), Unemployment Compensation Board of Review (UCBR), you seek an advisory from the State Ethics Commission. You have been asked to serve as an unpaid Regional Advisory Council (RAC) Member for a Community Systems Development Program which is a component of the "Special Kids Network." You have submitted copies of a May 20, 1997 letter from Julia B. Yost, Special Kids Network Administrator for Community Systems Development for the South Central Region, which requests that you serve as a RAC Member, and a proposed Agreement between the Pennsylvania Department of Health and the Milton S. Hershey Medical Center ( "Hershey Medical Center ") of the Pennsylvania State University, both of which documents are incorporated herein by reference. Wilt- Seibert, 97 -605 August 4, 1997 Page 2 According to the contract, the Department of Health intends to establish a regional resource network to enhance and improve the service delivery system for children with special health care needs. The Hershey Medical Center as contractor would be responsible for implementing and administering the "Special Kids Network" Regional Office for the South Central District of the Commonwealth. As detailed in the May 20, 1997 letter from Julia Yost, the goal of this program is to "maintain the integrity of family- centered care available to children and individuals with special needs by permitting these individuals to remain in their homes and communities." The RAC's function will be to represent major stakeholders from the local /regional communities that will serve as a task force to identify regional /local needs, develop and generate new initiatives, locate potential resources or funding within the region, evaluate potential projects for subcontracts and monitor the effectiveness of newly developed community -based programs and services. The RAC will be comprised of approximately 15 members from community, agency and family situations. You ask whether the Ethics Law would restrict you as to serving as a RAC Member. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) of the Ethics Law, 65 P.S. § §407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As an Assistant Counsel for the Department of Labor and Industry (L &I), Unemployment Compensation Board of Review (UCBR), you are a public employee as that term is defined under the Ethics Law, and hence you are 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 Wilt- Seibert, 97 -605 August 4, 1997 Page 3 Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities (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. 65 P.S. §403(j). immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "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 of 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. Wilt - Seibert, 97 -605 August 4, 1997 Page 4 In applying the above provisions of the Ethics Law to the facts which you have submitted, it would appear that in serving as a RAC Member, you would be engaging in an outside business activity (the Pennsylvania State University is considered a "business" as that term is defined under the Ethics Law, Novak, Opinion No. 91 -009). 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 -01 1. 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, a public official /employee could 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 could not during government working hours, solicit or promote such business activity. Pancoe, supra. Similarly, Section 3(a) would expressly prohibit the use of confidential information received by holding public office/ employment for such a prohibited private pecuniary benefit. In the event that your private business activity would have a matter pending before your governmental body or if you as part of your official duties would participate, review or pass upon such a matter, a conflict would exist. Miller, Opinion 89 -024. In such cases as noted above, Section 3(j) of the Ethics Law would require not only that you abstain from participation but also file a written memorandum to that effect with the person recording the minutes or your supervisor. In summary, the Ethics Law would restrict the following: 1. The use of authority of office to obtain any business in a private capacity; 2. utilization of confidential information gained through public position; 3. participating in discussions, reviews, or recommendations on matters which relate to the private business activity which may come before the governmental body and in such cases publicly announcing the relationship or advising the supervisor as well as filing a written memorandum as per the requirements of Section 3(j) of the Ethics Law. Brooks, Opinion 89 -023. 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 not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: As an Assistant Counsel for the Department of Labor and Industry (L &I), Unemployment Compensation Board of Review (UCBR), you are a public employee subject to the provisions of the Ethics Law. Subject to the restrictions and qualifications as noted above, Section 3(a) of the Ethics Law would not preclude you from serving as an unpaid Regional Advisory Council Member within the "Special Kids Network" as to a contract between the Pennsylvania Department of Health and the Milton S. Hershey Medical Center of the Pennsylvania State University. In the event Wilt- Seibert, 97 -605 August 4, 1997 Page 5 that the said private business activity would have matters pending before your governmental body, you would be required to abstain and to satisfy the disclosure requirements of Section 3(j) of the Ethics Law as outlined above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(1 1), 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. cerely, Tito Vincent J. Dopko Chief Counsel