HomeMy WebLinkAbout92-616Dear Mr. Remetta:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 1 t470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
July 21, 1992
Mr. James E. Remetta 92 -616
215 Marie Street
Glassport, PA 15045
Re: Conflict, Public Official /Employee, Private Employment or
Business, Adult Personal Care Home Licensing Representative,
Department of Public Welfare, Personal Care Home, Corporation,
Immediate Family, Spouse, Administrator of Personal Care Home,
Lease, Independent Contractor.
This responds to your letter of June 10, 1992, in 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 Personal Care Home
Licensing Representative for the Department of Public Welfare with
regard to developing a personal care boarding home.
Facts: • As an Adult Personal Care Home Licensing. Representative for
the Commonwealth- of Pennsylvania, Department of Public Welfare
(DPW), request an advisory from this Commission with regard to
a'business situation in which you intend to become involved.
You state that you are employed by DPW as a Personal Care
Boarding Home Licensing Representative or "Agent of the
Department." Copies of your job description, job classification
specifications, organizational chart, and job information sheet for
your position as an Adult Personal Care Home Licensing
Representative have been obtained from DPW and are incorporated
herein by reference. You have submitted two booklets consisting of
Chapter 20 ( "Licensure or Approval of Facilities and Agencies ") and
Chapter 2620 ( "Personal Care Home Licensing Regulations ") of DPW
Regulations set forth in Title 55. of the Pennsylvania Code. You
have also submitted five photocopied pages of excerpts from those
Regulations, in which you have highlighted the definitions of
"Agent of the Department," "PCH - Personal Care Home," and "PCH
Administrator" set forth in 55 Pa. Code 52620.3; 55 Pa. Code
S2620.71 regarding administration orientation; and 55 Pa. Code
52620.72 regarding qualifications and training for administrators.
Hi. James e. Remetta
July 21, 1992
Page 2
You are considering purchasing a building which you plan to
develop into a licensed "personal care home" as described in DPW
Regulations, 55 Pa. Code 52620.3. Referencing certain of the
Regulations which you have submitted, you state that you intend to
incorporate the business and have your wife certified through an
approved DPW Administration Program to function as the
administrator of the home.
You also state that you are considering another alternative
which would involve acquiring ownership of the building . and then
leasing it to an independent contractor for the purpose of running
a licensed personal care boarding home facility.
You request an expedited advisory in this matter because you
are involved in sales agreements as to which you have scheduled a
tentative, closing date of. June 30, 1992.
Discussion: As an Adult Personal Care Home Licensing
Representative for the Commonwealth of Pennsylvania, Department of
Public Welfare (DPW) , 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 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
Mr. James E. Remetta
July 21, 1992
Page 3
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.
"Immediate family." A parent, spouse,
child, brother or sister.
"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.
In addition, 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 anything of monetary value based upon the
understanding that the vote, official action, or judgement of the
public official /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.
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 to
minutes of the meeting at which the vote f$
taken, provided that whenever a governing body
W. James E. Remetta
July 21, 1992
Page 4
would be u_r»ie to take any action on a matter
before it becau0e 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 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.
If a conflict exists, Section 3(j) requires the public
official /employee to abstain and to publicly disclose the
abstention and reasons for same, both orally and by filing a
written memorandum to that effect with the person recording the
minutes or supervisor.
In applying the above provisions of the Ethics Law to the
questions which you have presented, 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. Any
use of the authority of your public position or confidential
information received by holding that position which would result in
a private pecuniary benefit for yourself, :.a member of your
immediate family such as your wife, or a business with which you or
a member of your immediate family is associated would be
prohibited.
With regard to your spouse becoming a certified administrator
for a personal care home, you would clearly have a - conflict of
interest as to matters before you in an official capacity
pertaining to your spouse.
As for your plans to develop a personal care home, Section
3(a) of the Ethics Law does not prohibit public officials /employees
from outside business activities or employment. Rather, Section
3(a) restricts the conduct of the public official/ public employee
in his public capacity.
It 4 clear that you oou],.d not use any confidential
Mr. James E. Remetta
July 21, L992
Page 5
information received by holding your public position in developing
a personal care home. You could not use the authority of your
public position to advanoe your development of a personal care
home, such as, for example, by facilitating its licensure or the
certification of its administrator. A 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 he is
associated. Pancoe, Opinion 89 -011. 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 use4, 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.
:In the ?event that your private employer or business has a
matter pending before your governmental body or if you as part of
such official duties must participate, review or pass upon that
matter, a conflict would exist. Miller, Opinion 89 -024. In those
instances, it will be necessary that you be removed from that
process. It is clear that you would have a conflict of interest as
to performing any of your official duties as an Adult Personal Care
Home Licensing Representative or Agent of the Department with
regard to the personal care home which you intend to develop.
In each instance of a conflict of interest, your total
abstention and compliance with the disclosure requirements of
Section 3(j).as set forth above would,be required.
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 business /private employer which'fitay
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,
Mr. James•E. Remetta
July 21, 1992
Page 6
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 or
the Regulations of the Department of Public Welfare.
Conclusion: As an Adult Personal Care Home Licensing
Representative for the Commonwealth of Pennsylvania, Department of
Public Welfare (DPW), you are a public employee subject to the
provisions of the Ethics Law. You would have a conflict of
interest as to matters before you in your capacity as a public
employee pertaining to your spouse. Section 3(a) of the Ethics Law
would not preclude you from outside employment/ business activity
subject to the restrictions and qualifications as noted above. In
the event that the employer /business has matters pending before
yourvernmental body, then you could not participate in that
matterr and the .disclosure requirements of Section 3(j) of the
Ethics Law as outlined above must be satisfied. Lastly, the
propriety the proposed conduct has only been addressed under the
Ethics Law.
Pursuant to Section 7(11), this Advice is a complete defense
in any enfo =cement 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 P4. Code 52.12.
ncerely,
Vincent J. Dopko
Chief Counsel