HomeMy WebLinkAbout22-539 VogelPHONE: 717-783-1610
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To the Requester:
Christopher S. Vogel
Dear Mr. Vogel:
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
FACSIMILE: 717-787-0806
WEBSITE: www.ethics.pa.gov
ADVICE OF COUNSEL
September 29, 2022
22-539
This responds to your email dated September 21, 2022, by which you requested an advisory
from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue
presented below:
Issue:
Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et
seq., would impose prohibitions or restrictions upon you serving in a voluntary capacity on
the Board of Directors of Tri-County Community Action, a local non-profit organization.
Brief Answer: No. Section 1103(a) of the Ethics Act (pertaining to public officials/public
employees and conflict of interest) would not prohibit you from serving in a voluntary
capacity on the Board of Directors of Tri-County Community Action. However, Section
1103(a) of the Ethics Act would prohibit you from using the authority of your public office
or using Commonwealth resources or facilities or confidential information accessed or
received as a result of being in your public position in furtherance of a pecuniary benefit
for yourself or Tri-County Community Action, which is a business with which you would
be associated in your capacity of a Member of the Board of Directors.
Facts:
You request an advisory from the Commission based upon submitted facts, the material
portion of which may be fairly summarized as follows.
Vogel, 22-539
September 29, 2022
Page 2
You are employed as a Public Health Program Regional Manager ("Regional Manager")
for the Division of Women, Infants and Children ("WIC") with the Pennsylvania Department of
Health. You have submitted a copy of a position description for your job, which document is
incorporated herein by reference. Per the position description, the work of the Regional Manager
includes, among other things, the following duties:
Description of Duties
The Regional Director serves as a point of contact for all financial and
administrative oversight functions within an assigned regional area of the state.
Plans, develops and coordinates regional operation of the WIC program within
an assigned territory and manages contractors in execution of financial
management, field services, nutrition education, training/outreach, vendor
monitoring, complaint/fraud management and information technology needs of
the program.
2. Coordinates with the Department's Office of Legal Counsel regarding regional
program planning, implementing, enforcing and negotiating settlements to
actions taken against retail stores, local agencies and program participants with
respect to matters of non-compliance, fraud or other contractual or ethical
violations to agreements held with the program.
Interacts and collaborates extensively with other local state agencies,
legislators, Federal program officials, local agency administrators, participating
retail store officials, municipal officials, and other public and private
organizations to promote the most efficient and effective methods to operate
and advance WIC services throughout an assigned region of the state.
4. Responsible for preparation of the regional contributions to the Annual WIC
State Plan of Program Operations.
5. Recommends actions to the State Agency to resolve local audit findings that
includes fund recovery and program corrective actions.
6. Approves agreements and sanctions of regional retailers.
7. Develops, justifies and manages a regional WIC budget. Approves expenditures
and prepares and analyzes expenditure reports.
Evaluates and reviews vendor execution of contract deliverables and manages
contract personnel through subordinate managers, including disciplinary action
and termination of regional contract staff.
Vogel, 22-539
September 29, 2022
Page 3
You have been asked to serve on the Board of Directors of Tri-County Community Action,
a non-profit 501(c)(3) corporation located in Harrisburg, Pennsylvania. The mission of Tri-County
Community Action is to build on the strengths and resources available, provide solutions for
complex issues, and empower individuals, families, and communities to move out of poverty. The
Board of Directors is comprised of volunteers.
Based upon the above submitted facts, you ask whether the Ethics Act would impose
prohibitions or restrictions upon you serving in a voluntary capacity on the Board of Directors of
Tri-County Community Action.
Discussion:
It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65
Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the
requester has submitted. In issuing the advisory based upon the facts that the requester has
submitted, the Commission does not engage in an independent investigation of the facts, nor does
it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully
disclose all material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only
affords a defense to the extent the requester has truthfully disclosed all material facts.
As a Public Health Program Regional Manager for the WIC program, you would be
considered a "public employee" subject to the provisions of the Ethics Act and the Regulations of
the State Ethics Commission. See, 65 Pa. C.S. § 1102; 51 Pa. Code § 11.1. This conclusion is
based upon the position description and the job classification specifications, which when reviewed
on an objective basis, indicate clearly that the power exists to take or recommend official action
of a non -ministerial nature with respect to one or more of the following: contracting, procurement;
administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing;
regulating; auditing; or other activity(ies) where the economic impact is greater than de minimis
on the interests of another person.
Section 1103(a) of the Ethics Act provides:
§ 1103. Restricted activities
(a) Conflict of interest. --No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
65 Pa.C.S. § 1103(a).
The following terms related to Section 1103(a) are defined in the Ethics Act as follows:
§ 1102. Definitions
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September 29, 2022
Page 4
"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.
The term 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.
65 Pa.C.S. § 1102.
Section 1103(a) of the Ethics Act, which restricts public officials/public employees in their
public capacities and not their private capacities, does not prohibit public officials/public
employees from having outside business activities or employment. However, subject to the
statutory exclusions to the definition of the term "conflict" or "conflict of interest" (i.e., the "de
minimis exclusion" and the "class/subclass exclusion), 65 Pa.C.S. § 1102, 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 advancement of his own private
pecuniary (financial) benefit or that of a business with which he is associated. Pancoe, Opinion
89-011.
The definition of the term "business" as set forth in the Ethics Act includes a non-profit
corporation. Rendell v. State Ethics Commission, 603 Pa. 292, 983 A.2d 708 (2009).
The use of authority of your public employment is not limited merely to voting, but extends
to any use of authority of office including, but not limited to, discussing, conferring with others,
and lobbying for a particular result. Juliante, Order 809. In each instance of a conflict of interest,
Vogel, 22-539
September 29, 2022
Page 5
a public official/public employee would be required to abstain from participation, which would
include voting unless one of the statutory exceptions of Section 11030) of the Ethics Act would
be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would
have to be satisfied in the event of a voting conflict.
Sections 1104 and 1105 of the Ethics Act, 65 Pa.C.S. §§ 1104, 1105, provide for the filing
of annual Statements of Financial Interests by public officials/public employees. Section 1105(b)
of the Ethics Act and its subsections detail the financial disclosure that a person required to file
the Statement of Financial Interests form must provide.
Conclusion:
In applying the above provisions of the Ethics Act to the instant matter, you are advised as
follows.
As a Public Health Program Regional Manager for the WIC program, you would be
considered a "public employee" subject to the provisions of the Ethics Act and the Regulations of
the State Ethics Commission. Section 1103(a) of the Ethics Act would not prohibit you from
serving on the Board of Directors of Tri-County Community Action.
If you would serve on the Board of Directors of Tri-County Community Action, then Tri-
County Community Action would be considered a business with which you are associated, and
pursuant to Section 1103(a) of the Ethics Act, you would generally have a conflict of interest in
matters that would financially impact Tri-County Community Action. In each instance of a conflict
of interest, you would be required to abstain from participation in your public capacity as a Public
Health Program Regional Manager.
Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes restrictions
upon public officials and public employees. Therefore, Section 1103(a) of the Ethics Act imposes
restrictions upon you in your capacity as a public employee, rather than upon you in your private
capacity. Section 1103(a) of the Ethics Act would prohibit you from using your status as a Public
Health Program Regional Manager for the WIC program or using Commonwealth resources or
facilities or confidential information accessed or received as a result of being in this public position
in furtherance of a pecuniary benefit for yourself or Tri-County Community Action.
As a public employee, you are required to file annual Statements of Financial Interests in
compliance with Sections 1104 and 1105 of the Ethics Act. You would be required to disclose on
your annual Statement of Financial Interests your membership on the Board of Directors of Tri-
County Community Action as an "office, directorship or employment of any nature whatsoever in
any business entity" pursuant to Section 1105(b)(8) of the Ethics Act, 65 Pa.C.S. § 1105(b)(8).
Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act.
Vogel, 22-539
September 29, 2022
Page 6
Pursuant to Section 1107(11) of the Ethics Act, an 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, provided 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 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.
Respectfully,
Bridget K. Guilfoyle
Chief Counsel