HomeMy WebLinkAbout22-550 Smith
PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806
TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
December 2, 2022
To the Requester:
Kayla Smith
22-550
Dear Ms. Smith:
This responds to your letter dated November 1, 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 an individual serving as an
Administrative Officer 3 for the Pennsylvania Department of Drug and Alcohol Programs
(“Department of Drug and Alcohol Programs”) with regard to performing contracted
freelance work that would involve developing eLearning modules for: (1) a business which
will be submitting a proposal for a training contract for workforce development through
the Pennsylvania Department of Health; or (2) other businesses.
Brief Answer: NO. The Ethics Act would not prohibit the individual from performing
contracted freelance work that would involve developing eLearning modules for
businesses, including a business which will be submitting a proposal for a training contract
for workforce development through the Pennsylvania Department of Health, subject to the
condition that in performing such work, there would be no use of government
facilities/equipment and time in contravention of Section 1103(a) of the Ethics Act
(pertaining to conflict of interest).
Facts:
You request an advisory from the Commission based upon submitted facts, the material
portion of which may be fairly summarized as follows.
Smith, 22-550
December 2, 2022
Page 2
You are employed as an Administrative Officer 3 with the Department of Drug and Alcohol
Programs, Bureau of Quality Assurance and Administration, Division of Program Support and
Quality Improvement, Training Section. You have submitted a copy of your official
Commonwealth position description, which is incorporated herein by reference.
In your current role with the Department of Drug and Alcohol Programs, you work with
subject matter experts to develop new and update existing training curricula for non-
Commonwealth staff who work in the field of substance use disorder. Your primary responsibility
is to develop eLearning modules, which you do by using Commonwealth software and equipment.
You have a background in software design. While you were pursuing a Bachelor of
Science degree in information technology, you purchased the same software used by the
Commonwealth so that you could create eLearning modules outside of your current
Commonwealth position. To date, you have not had any requests to do such work.
Through the Commonwealth’s Invitation to Qualify process, the Department of Drug and
Alcohol Programs contracts with individuals who act as trainers for the trainings developed by the
Department of Drug and Alcohol Programs. Sandra Soloski (“Ms. Soloski”) has been such a
contracted trainer for over ten years, and you have worked with her for the last six years. In
February 2022, the Training Section of the Department of Drug and Alcohol Programs decided to
undergo a large curriculum update project. As part of the project Ms. Soloski was selected to assist
with the project and was issued a contract to update the clinical supervision training curriculum.
You are involved with the project as both the project manager and the eLearning developer, using
a storyboard that Ms. Soloski created for an eLearning module. You state that because of this
project, Ms. Soloski learned of your knowledge and skills in developing eLearning modules.
In addition to being a contracted trainer, Ms. Soloski is an employee of Adagio Health,
located in western Pennsylvania, which provides a variety of health care services for women, men,
and teenagers. Adagio Health does not receive any funding from the Department of Drug and
Alcohol Programs or provide treatment for substance use disorder.
Adagio Health will be submitting a proposal for a training contract for workforce
development through the Pennsylvania Department of Health. You state that neither Ms. Soloski
nor her senior management staff at Adagio Health understand how to develop eLearning modules
and that you were asked if you could provide them with any information. You met with them to
explain the development process for eLearning modules, and during the meeting, you provided
them with an overview of your background, the authoring software used by the Department of
Drug and Alcohol Programs to create eLearning modules, and advice on how to get started by
creating storyboards and writing narration text. You state that when you were asked if you knew
anyone who does freelance work developing eLearning modules, you suggested that they do an
internet search. You were then asked if you do any freelance work, at which point you replied that
you have not up to this point but have considered doing such work.
Based upon the above submitted facts, you ask whether the Ethics Act would permit you
to perform contracted freelance work that would involve developing eLearning modules for
Adagio Health or other businesses. You state that no Commonwealth resources would be utilized
Smith, 22-550
December 2, 2022
Page 3
to perform such work and that you would use leave if any such work would need to be completed
during your normal Commonwealth working hours.
Discussion:
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.
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
“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.
65 Pa.C.S. § 1102.
Smith, 22-550
December 2, 2022
Page 4
Section 1103(a) of the Ethics Act, which restricts public officials/public employees in their
public capacities and not their private capacities, does not prohibitpublic 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.
In each instance of a conflict of interest, the public official/public employee would be
required to abstain from participation. The abstention requirement would extend 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.
Per the Pennsylvania Supreme Court’s decision in Kistler v. State Ethics Commission, 610
Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the Ethics Act, a public
official/public employee:
… must act in such a way as to put his \[office/public position\] to the
purpose of obtaining for himself a private pecuniary benefit. Such
directed action implies awareness on the part of the \[public
official/public employee\] of the potential pecuniary benefit as well
as the motivation to obtain that benefit for himself.
Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics Act, a
public official/public employee “must be consciously aware of a private pecuniary benefit for
himself, his family, or his business, and then must take action in the form of one or more specific
steps to attain that benefit.” Id., 610 Pa. at 528, 22 A.3d at 231.
The use of government staff, time, equipment, facilities, or property for non-governmental
purposes — including business, personal, or political purposes — is generally prohibited and may
form the basis for a violation of Section 1103(a) of the Ethics Act. See, e.q., Dennis, Opinion 07-
003; Confidential Opinion, 05-001. The Commission has long held that government offices,
facilities, equipment, and personnel are to be used for governmental purposes and not for private,
business or campaign/re-election activities. Id.
Conclusion:
In applying the above provisions of the Ethics Act to the instant matter, you are advised as
follows.
As an Administrative Officer 3 with the Department of Drug and Alcohol Programs,
Bureau of Quality Assurance and Administration, Division of Program Support and Quality
Improvement, Training Section, you are a public employee subject to the provisions of the Ethics
Act. This conclusion is based upon the position description, which when reviewed on an objective
basis, indicates clearly that the power exists to take or recommend official action of a non-
Smith, 22-550
December 2, 2022
Page 5
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.
The Ethics Act would not prohibit you, in your private capacity, from performing
contracted freelance work that would involve developing eLearning modulesfor Adagio Health or
other businesses subject to the condition that in performing such work, there would be no use of
government facilities/equipment and time in contravention of Section 1103(a) of the Ethics Act.
In your public capacity as an Administrative Officer 3, you would not have a conflict of
interest with regard to participating in matters pertaining to Ms. Soloski’s contracted work for the
Department of Drug and Alcohol Programs unless: (1) you would be consciously aware of a private
pecuniary (financial) benefit for yourself; (2) your action(s) would constitute one or more specific
steps to attain that benefit; and (3) neither of the statutory exclusions to the definition of “conflict”
or “conflict of interest” as set forth in the Ethics Act, 65 Pa.C.S. § 1102, would be applicable.
Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act.
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 receivedat 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