HomeMy WebLinkAbout98-601 StenersenEric J. Stenersen, BC -HIS
Pocono Mountain Hearing Aid Service
615 Main St.
Stroudsburg, PA 18360
Dear Mr. Stenersen:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
(717) 783 -1610
1- 800 -932 -0936
ADVICE OF COUNSEL
October 1, 1998
98 -601
Re: Conflict; Public Official /Employee; Hearing Aid Advisory Council of Pennsylvania;
Department of Health.
This responds to your letter of September 2, 1998 by 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 Hearing Aid Advisory Council of
Pennsylvania with regard to designating such status on his professional letterhead.
Facts: In November of 1997, you were appointed by Governor Ridge to serve as
a Member of the Hearing Aid Advisory Council of Pennsylvania ( "Council "). The Council
was created by Act 262 of 1976 (35 P.S. §6700 -101, g sega, which is known as the
"Hearing Aid Sales Registration Law."
You state that it is obvious that you should not use your designation as a Member
of the Council in advertising for your business. However, you would like to include your
status as a Member of the Council on your professional letterhead. You have submitted
the following as an example of what you propose to include:
Pocono Mountain Hearing Aid Service
615 Main Street
Stroudsburg, PA . 18360
Eric J. Stenersen, BC- HIS -Board Certified - Hearing Instrument Sciences
Member- Hearing Aid Advisory Council of Pennsylvania
You state that you are proud and honored to be a member of the Council and feel
that no commercial gain would be exploited by including such a designation on your
letterhead. You request an advisory from the State Ethics Commission as to whether the
Public Official and Employee Ethics Law would permit you to do so.
Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) 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
FAX : (717) 787 -0806 ® Web Site: www.ethics.state.pa.us ® e -mail: sec@state.pa.us
Stenersen, 98 -601
October 1, 1998
Page 2
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.
Pursuant to Section 3(a) of the Ethics Law, a public official /public employee is
prohibited from using the authority of public office /employment or confidential
information received by holding such a public position for the private pecuniary benefit
of the public official /public employee himself, any member of his immediate family, or
a business with which he or a member of his immediate family is associated. Section
3(a) 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 "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." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self - employed individual, holding company, joint
stock company, receivership, trust or any legal entity
organized for profit.
"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.
However, in order for Section 3(a) to apply, the individual whose conduct is in
question must either be a public official or public employee. As a Member of the Hearing
Aid Advisory Council, you are clearly not a "public employee." The question is whether
you are a public official.
Stenersen, 98 -601
October 1, 1998
Page 3
The Ethics Law defines the term "public official" as follows:
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 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.
65 P.S. §402.
The regulations of the State Ethics Commission set forth the following criteria that
are used to determine whether the "advisory board" exception applies:
(i) The following criteria will be used to determine if the
exception in this paragraph is applicable:
(A) The body will be deemed to have the power to expend
public funds if the body may commit funds or may otherwise make
payment of moneys, enter into contracts, invest funds held in
reserves, make loans or grants, borrow money, issue bonds, employ
staff, purchase, lease, acquire or sell real or personal property
without the consent or approval of the governing body and the
effect of the power to expend public funds has a greater than de
minimis economic impact on the interest of a person.
(B) The body will be deemed to have the authority to
otherwise exercise the power of the Commonwealth or a political
subdivision if one of the following exists:
(I) The body makes binding decisions or orders adjudicating
substantive issues which are appealable to a body or person other
than the governing authority.
(II) The body exercises a basic power of government and
performs essential governmental functions.
(III) The governing authority is bound by statute or ordinance
to accept and enforce the rulings of, the body.
(IV) The body may compel the governing authority to act in
accordance with the body's decisions or restrain the governing
authority from acting contrary to the body's decisions.
(V) The body makes independent decisions which are
effective without approval of the governing authority.
(VI) The body may adopt, amend and repeal resolutions,
rules, regulations or ordinances.
(VII) The body has the power of eminent domain or
condemnation.
Stenersen, 98 -601
October 1, 1998
Page 4
(VIII) The enabling legislation of the body indicates that the
body is established for exercising public powers of the
Commonwealth or a political subdivision.
(ii) The term does not include judges and inspectors of
elections, notary publics and political party officers.
(iii) The term generally includes persons in the following
offices:
(A) Incumbents of offices filled by nomination of the Governor
and confirmation of the Senate.
(B) Heads of executive, legislative and independent agencies,
boards and commissions.
(C) Members of agencies, boards and commissions appointed
by the General Assembly or its officers.
(D) Persons appointed to positions designated as officers by
the Commonwealth or its political subdivisions.
(E) Members of municipal, industrial development, housing,
parking and similar authorities.
(F) Members of zoning hearing boards and similar quasi -
judicial bodies.
(G) Members of the public bodies meeting the criteria in
paragraph (i)(A).
51 Pa. Code §11.1.
In reviewing the Hearing Aid Sales Registration Law and the Regulations for
Hearing Aid Sales and Registration, it is clear that the Hearing Aid Advisory Council is
purely advisory. According to §6700 -201 of the Hearing Aid Sales Registration Law, the
function of the Hearing Aid Advisory Council is to advise the Department of Health in
administering that particular law. The remaining statutory provisions reflect that it is the
Secretary of Health, the Department of Health, and the Attorney General which exercise
the governmental authority.
Likewise, §25.203(b) of the Regulations for Hearing Aid Sales and Registration
characterizes the Council as advisory: "It will be the duty of the Advisory Council to
advise the Secretary, to the best of its ability, on the administration of act 262." J
There is no provision in the statute or Regulations for any powers that would bring
the Council. within the Ethics Law's definition of "public official." Moreover, there is no
mention of any authority on the part of the Council to expend public funds, other than
with regard to seeking reimbursement for the actual expenses incurred by the Members.
See, 35 P.S. §6700 -201.
The necessary conclusion is that in your capacity as a Member of the Hearing Aid
Advisory Council of Pennsylvania, you are not to be considered a "public official" as that
term is defined in the Ethics Law. Thus, the Ethics Law would not restrict you as to the
contents of your professional letterhead.
Stenersen, 98 -601
October 1, 1998
Page 5
The only provisions of the Ethics Law which would apply to you are Sections 3(b)
and 3(c) which apply to everyone. For your information, Sections 3(b) and 3(c) of the
Ethics Law provide in part that no person shall offer to a public official /public employee
anything of monetary value and no public official /public employee shall solicit or accept
anything of monetary value based upon the understanding that the vote, official action,
or judgement of the public official /public employee would be influenced thereby.
Reference is made to these provisions of the law not to imply that there has been or will
be any transgression thereof but merely to provide a complete response to the question
presented.
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. However, it is recommended that you seek
legal advice as to any other restrictions which may be imposed upon your proposed
conduct, for example, by Section 25.203(d) of the Regulations for Hearing Aid Sales and
Registration, which provides: "No Council member shall convey the impression, either
publicly or privately, that such member is acting officially for the council without prior
authorization from the council. ",.k.
Conclusion: In your capacity as a Member of the Hearing Aid Advisory Council
of Pennsylvania ( "Council "), you are not to be considered a "public official" as that term
is defined by the Public Official and Employee Ethics Law ( "Ethics Law "). Accordingly,
in that capacity, you would not be prohibited by the Ethics Law from designating your
status as a Member of the Council on your professional letterhead. However, the
propriety of the proposed conduct has only been addressed under the Ethics Law. It has
been recommended that legal advice be obtained as to other restrictions that may apply.
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 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,
incen Z . Dopko
Chief Counsel