Loading...
HomeMy WebLinkAbout03-607 DeLucaDavid DeLuca 121 Joan Drive Mountain top, PA 18707 ADVICE OF COUNSEL December 10, 2003 03 -607 Re: Conflict; Public Official /Employee; Income Maintenance Caseworker; Department of Public Welfare; County Assistance Office, Nursing Home; Business With Which Associated. Dear Mr. DeLuca: This responds to your letter received by the Commission on October 29, 2003, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. 1 et seq., presents any prohibition or restrictions upon an Income Maintenance aseworker in the Department of Public Welfare, Office of Income Maintenance with regard to providing private consulting services to assist individuals gather information and apply for nursing home medical assistance. Facts: You are an Income Maintenance Caseworker in the Department of Public Welfare ( "DPW "), Office of Income Maintenance. You work at the Luzerne County Assistance Office in Wilkes- Barre, Pennsylvania. You have submitted a copy of a DPW Job Posting containing a job description for your position, which is incorporated herein by reference. Your job duties are to determine client eligibility for Income Maintenance Program Services; make appropriate referrals for service; and assess the client's employment needs. You state, "the nursing home caseworker determines financial eligibility for Medicaid, which would cover a portion of the nursing home bill." You state that you have found a need in the community for private consulting services that focus on helping family members gather information and properly apply for nursing home medical assistance. In this regard, you pose the following three questions. 1. Whether you would have a conflict of interest as to providing such services since you currently work in the nursing home unit; 2. Whether you would have a conflict of interest as to cases for which you would DeLuca, 03 -607 December 10, 2003 Page 2 provide consulting services that would arrive at the Luzerne County Assistance Office where another caseworker would handle the application; and 3. Whether you would have a conflict of interest if you would handle cases only in counties other than the one in which you work. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the i - 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As an Income Maintenance Caseworker in the Department of Public Welfare ( "DPW "), Office of Income Maintenance you are a "public employee" as that term is defined in the Ethics Act, and hence you are subject to the provisions of that Act. 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 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. "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. DeLuca, 03 -607 December 10, 2003 Page 3 "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. In addition, Sections 1103(b) and 1103(c) of the Ethics Act 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 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 1103(j) of the Ethics Act provides as follows: § 1103. Restricted activities (j) Voting conflict. - -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 the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because 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 if 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. 65 Pa.C.S. § 1103(j). In each instance of a conflict, Section 1103(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 the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Act to the instant matter, you are advised DeLuca, 03 -607 December 10, 2003 Page 4 that Section 1103(a) of the Ethics Act does not prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may not use the authority of his public position - or confidential information obtained by being in that position - for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited under Section 1103(a) would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order No. 1037; (2) the use of governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order No. 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official /public employee is associated in his private capacity or private client(s). Miller, Opinion 89 -024; Kannebecker, Opinion No. 92 -010. A reasonable and legitimate expectation that a business relationship will form may also support a finding of a conflict of interest. Amato, Opinion No. 89 -002; Garner, Opinion No. 93 -004; Snyder, Order No. 979 -2, affirmed Snyder v. SEC, 686 A.2d 843 (Pa. Commw. Ct. 1996), alloc. den., No. 0029 M.D. Allocatur Docket 1997 (Pa. December 22, 1997). In each instance of a conflict of interest, the public official /public employee must abstain from participation in his public capacity and observe the disclosure requirements of Section 1103(1) as set forth above. The abstention requirement is not limited merely to voting, but extends to any use of authority of office. In Juliante, Order 809, the Commission recognized that the use of authority of office as defined in the Ethics Act includes, for example, discussing, conferring with others, and lobbying for a particular result. Under the facts which you have submitted, the Ethics Act would not prohibit you from providing consulting services in the private sector. However, as an Income Maintenance Caseworker, you could not use the authority of your public position, or confidential information received by being in your public position, for the private pecuniary benefit of yourself, a member of your immediate family, your consulting business, or private client(s). See, Miller, supra; Kannebecker, supra. An example of a conflict would be the use of DPW files to obtain the names of individuals as prospective clients. Having established the above general principles, your specific inquiries shall now be addressed. As to your first question, the Ethics Act would not prohibit you from offering consultative services for a fee in the community when you work in the nursing home unit. However, you could not use the authority of your office as an Income Maintenance Caseworker or confidential information for the private pecuniary benefit of yourself, a member of your immediate family, your consulting business, or private client(s). As to your second question, as noted above, you would have a conflict of interest as to private client(s). Therefore, as an Income Maintenance Caseworker, you could not participate in any matter involving private client(s) of your consulting business. In each instance of a conflict of interest, you would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. As to your third question, if you would handle cases only in counties other than the county in which ou work, no conflict of interest would exist assuming there would be no use of authority of office or confidential information for the private pecuniary benefit of yourself, a member of your immediate family, your consulting business, or private client(s). The propriety of the proposed conduct has only been addressed under the Ethics Act; 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 DeLuca, 03 -607 December 10, 2003 Page 5 Ethics Act. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: As an Income Maintenance Caseworker in the Department of Public Welfare ( "DPW "), Office of Income Maintenance, you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. The Ethics Act would not prohibit you from providing consulting services in the private sector. However, as an Income Maintenance Caseworker, you could not use the authority of your public position, or confidential information received by being in your public position, for the private pecuniary benefit of yourself, a member of your immediate family, your consulting business, or private client(s). Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), 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 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 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. Sincerely, Vincent J. Dopko Chief Counsel