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HomeMy WebLinkAbout92-579STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 - 1610 ADVICE OF COUNSEL May 13, 1992 James D. McDonald, Jr., Esquire The McDonald Group 456 West Sixth Street Erie, PA 165 -1216 92 -579 Re: Simultaneous service; County Director of Hunan Services; County Mental Health and. Mental Retardation Administrator; and President and Chief Executive Officer of County Human Services Support Corporation. Dear Mr. McDonald: This responds to your letter of April 3, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a county director of human services from also serving or being employed as the county mental health and mental retardation administrator and the president and chief executive officer of a county human , services support corporation. Facts: As legal counsel for Mr. James N. Herr, you request an advisory from the State Ethics Commission as to whether the multiple positions held by Mr.. Herr within the system of human services administered by Erie County constitute a conflict of interest under the Ethics Law. You have submitted the following documents labeled as exhibits, all of which documents are incorporated herein by reference: 1. Exhibit A Job Description of James N. Herr 2. Exhibit B By -Laws of Erie County Human Services Support Corporation 3. - Exhibit C Organizational Chart of Erie County James D. McDonald, Jr., Esquire May 13, 1992 ` Page 2 4. .Exhibit D Packet containing the initial Articles of Incorporation of Erie County Human Services Support Corporation and all amendments thereto 5. Exhibit E County of Erie Three Year Plan 1992 -1994 Mr. Herr holds three positions related to human services programs in Erie County. He is the County Mental Health and Mental Retardation Administrator appointed pursuant to Section 304 of the Mental Health and Mental Retardation Act of 1966, 50 P.S. S4304, and as such has the powers and performs the duties as set forth in 5305 of that Act. As Administrator, Mr. Herr also has responsibilities under the Mental Health Procedures Act of 1976, 50 P.S. 57101 et se ., as well as Chapter 4300 of the Regulations of the Department of Public Welfare, 55 Pa. Code 54300.1 et a. Additionally, Mr. Herr serves as Director of Human Services for the County of Erie as well as President and Chief Executive Officer of the Erie County Human Services Support Corporation. You point out that Mr. Herr's job description issued by the Erie County Executive, which job description you have submitted as Exhibit A, specifically defines and coordinates Mr. Herr's activities in all three of the above positions. Furthermore, you state that the By- Laws of the Erie County Human Services Support Corporation which you have submitted as Exhibit B specifically provide, in Article VI(6) thereof, that the President and Chief Executive Officer of the corporation shall be the incumbent in office of the Erie County Director of Human Services. Therefore, these multiple positions are all integrated into one job description for purposes of responsibility and coordination within Erie County. You state that the organizational chart of the County of Erie, which you have submitted as Exhibit C, sets forth the relationship of the Department of Human Services, the Mental Health /Mental Retardation Office, and the Erie County Human Services Support Corporation. The Erie County Human Services Support Corporation was incorporated on June 28, 1973, as a non - profit corporation pursuant to 15 Pa.C.S. 55101 et sew.. You state . that as required by its Charter, the corporation is established as a charity under Section 501(c)(3) of the Internal Revenue Code of 1954, 26 U.S.C. §501(c)(3). You have submitted the corporation's initial Articles of Incorporation and all Amendments thereto as Exhibit D. As a non - profit charitable corporation charged with serving the system of human services, the County uses the corporation as a mechanisms to provide flexibility in the application for human service grants and in the administration of its programs. The corporation acts as a landlord and computer service - bureau and . provides specialized case management units for the County's human services programs. The corporation also acts as a service bureau to the central accounting office of Erie County by providing; a financial James D. McDonald, Jr., Esquire lay 13, 1992 Page 3 management system, as to which you reference your submission of Exhibit E, the County of Brie Three -Year Plan 1992 -1994, at page 121. The composition of the nine person Board of Directors of the Erie County Human Services •Support Corporation includes, by definition, twwoenmbers of County Council and two members of the executive branch- of . Efie County Government, as to which you reference Exhibit B, Article V(10) , thereby further integrating the activities of-the corporation into the County's system of human services. The costs of the system of human services in Erie County are funded initially by the County, but do include state and federally mandated programs and as sudh are subject to substantial reimbursement by state and federal sources. Youwreference various portions of the submitted Exhibits- which provide an-overview of the Mental Bealth and Mental Retardation Program responsibilities. Mr. Herr is salaried by the County of Erie for the position described in Exhibit A, his job description. You state that Mr. Herr receives no compensation whatsoever -from the Erie County Human Services Support Corporation, although you acknowledge that he has the use of a 1980 Volvo sedan owned by the corporation which currently has been driven more than 200,000 miles. The initial purchase and use of the vehicle was approved by the Erie County Executive and the State Department of Public Welfare. The operating and maintenance expenses for the vehicle are paid by the corporation, but any expenses incurred directly by Mr. Herr which are job related are reimbursed by the County and not the corporation. That'reimbursement is limited to the direct out -of- pocket payment. Mr. Herr is charged,and pays for his.personal use of the vehicle, and the County of Erie determines an amount of "non -cash compensation" resulting from said .personal use of the vehicle each year, which sum is reported on the W -2 statement issued to Mr. Herr by the County of Erie. Finally, you state that a Statement of Financial Interests is filed annually by Mr. Herr as required by Section -4 of the Ethics Law. Based upon all of the above, you request an Advice, of Counsel or, in the alternative, an Opinion in the event that there is insufficient Commission precedent to issue an Advice. Discussion: It is initially noted `that -the Exhibits- submitted with your request letter consist of materials in excess of 200 pages. Given the voluminous nature of these documents, there will be no recitation herein regarding their contents except to the extent that you have referenced them in your letter of inquiry. Furthermore, this Advice shall be confined to the facts and your characterization of the contents of the Exhibits as specifically set forth in your letter of inquiry: James D. McDonald, Jr., Esquire May 13, 1992 Page 4 • As the Director of Human Services and Mental Health and Meittal Retardation Administrator for the County of Erie, Mr. James N. Herr - is a "public employee" as that term is defined in the Ethics Law and hence he is subject to the provisions of the Ethics Law. .55 P.S. S402; 51 Pa. Code §1.1. Section 3(a) of the Ethics Act 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 under the Ethics Law: 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. In addition, Sections 3(b) and 3(c) �f 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 anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /employee would be influenced thereby. Reference is James D. McDonald, Jr., Esquire May 13, 1992 Page 5 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. In applying the above provisions of the Ethics Law to the question of simultaneous service, there does not appear to be any real possibility oi; a. private pecuniary benefit or .inherent conflict arising if Mr.-Herr were to serve as a public employee in both of his capacities as Director of Human Services and Mental Health and Mental Retardation Administrator for the County of Erie while also serving as the President and Chief Executive Officer of the Erie County Human Services Support Corporation. Basically, the Ethics Law does not state that it is inherently incompatible for a public official /employee to serve or be employed simultaneously in the above three positions. The main prohibition under the Ethics Law 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. Smith Opinion, 89-010. "In the situation outlined above, Mr. Herr would not be serving entities with interests which are adverse.to each other. However, if a situation arises where. Mr. Herr or the respective entities which he represents develop an adverse interest, then Mr. Herr must remove himself from that particular matter and disclose the nature of his interest in a written memorandum to the appropriate person (supervisor or secretary who keeps the minutes). If such a situation would arise, additional advice may be sought from the Commission. Furthermore, pursuant to Section 3( Mr. Herr may not use the authority of public employment for a prohibited private pecuniary benefit such as, for. example, increased compensation/ benefits in any of his positions. 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 Act 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 County Code; the Mental Health and Mental Retardation Act of 1966; . the Mental Health Procedures Act of 1976; and the Regulations of the Department of Public Welfare. Conclusion: As the Director of Human Services and Mental Health and Mental Retardation Administrator for the; . Coounty of Erie,. Mr. James N. Herr is a »public employee_."y subject to the provisions of the Ethics- . Law. As. a pujhic official/employee, Mr. Herr may, consisteit. with, Section 3(a) of the Ethics . Law,. simultaneously serve inn. th* apfosesad positions e of Director of Human Services and James D. McDonald, Jr., Esq're May 13, 1992 Page 6 Mental Health and Mental Retardation Administrator for the County of Erie while also serving as the President and. Chief Executive Officer of the Erie County Human Services Support Corporation. Lastly, the propriety of the proposed course of 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 requester 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 §2.12. Very truly yours, Vincent . Dopko, Chief Counsel