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HomeMy WebLinkAbout89-519 O'HearnMs. Pat O'Hearn 1149 Pond Road Harrisburg, PA 17111 Dear Ms. O'Hearn: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 27, 1989 89 -519 Re: Simultaneous Service, Administrative Assistant I, DPW and Pharmacy Technician This responds to your letter of February 15, 1989, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restriction upon an Administrative Assistant I, in the Department of Public Welfare from also serving or being employed as a pharmacy technician. Facts: After referencing a prior Advice of Counsel, Mover, Advice 87 -633, you state that you are currently employed by the Bureau of Quality Assurance, Department of Public Welfare, hereinafter DPW and you are also employed part -time as a pharmacy technician in the Emerald Drug Store. You state that you do not own any stock in the company and are not involved in establishing any pricing or policies which are predetermined by the owners. Although you indicate that you receive a discount on merchandise that you buy in the pharmacy, you state that all employees receive the same discount. You reference a photocopy of your job description which you have attached to your letter. You then advise that you duties at the pharmacy include answering the telephone, assisting the pharmacist by counting pills, ringing up customer purchases on the cash register, vacuuming and cleaning the bathroom. You conclude by requesting advice as to whether you may work at the pharmacy while being employed by DPW. Ms. Pat O'Hearn March 27, 1989 Page 2 Discussion: As a Administrative Assistant I for DPW, you are a "public employee" as that term is defined in the Ethics Act. 65 P.S. 402; 51 Pa. Code 1.1. 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: Section 3. Restricted Activities. (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 family, or a business with which he is associated. 65 P.S. §403(a). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official /employee to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official /employee to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. 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 pharmacy technician. Basically, the Ethics Act does not state that it is inherently incompatible for a public employee to serve or be employed as a pharmacy technician. The main prohibition Ms. Pat O'Hearn March 27, 1989 Page 3 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. In the situation outlined above, you would not be serving entities with interests which are adverse to each other. 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 would be influenced thereby. 65 P.S. 403(b). 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 judgment 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 State Ethics Act, the State Ethics Commission may address other areas of possible conflict 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. Ms. Pat O'Hearn March 27, 1989 Page 4 Although the Ethics Act would not preclude you from serving as an Administrative Assistant I in DPW and working as a pharmacy technician, you could not in your position of public employment use staff personnel, equipment, supplies, telephones etc., to perform or help you as to your private employment as a pharmacy technician. Dorrance, Order 456; Cohen, Order 610 -R. Additionally, in the event that any matter concerning the Emerald Drug Store would come before you in your capacity as an Administrative Assistant I in DPW, you could not participate or be involved in that matter as to Emerald Drug Store and you would have to notify your immediate supervisor in writing. Lastly, it must be noted that the propriety of your proposed conduct has only been 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. Specifically, not addressed in this advice is the Governor's Code of Conduct in that it does not involve an interpretation of Ethics Act. Conclusion: As a Administrative Assistant I 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 Administrative Assistant I in DPW, and township pharmacy technician, subject to the qualifications and limitations as noted 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 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 Ms. Pat O'Hearn March 27, 1989 Page 5 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 made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Sincerely, t",.„" ham Vincent J. Dopko General Counsel