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HomeMy WebLinkAbout16-560 Edley.l l� Y STATE ETHICS COMMISSION 309 FINANCE BUILDING PO. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL October 24, 2016 To the Requester: Richard S. Edley, Ph.D. Chief Executive Officer and President Rehabilitation & Community Providers Association 16 -560 Dear Mr. Edley: This responds to your letters dated August 25, 2016, and August 31, 2016,,by which you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission'). Issue. Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 PAS. § 1101 et seg., would impose restrictions upon employment of a Special Advisor to the Secretary of Human Services for the Commonwealth of Pennsylvania following termination of employment with the Pennsylvania Department of Human Services. Facts: As Chief Executive Officer and President of Rehabilitation & Community r�Tders Association (the "Association "), you have been authorized by Stephen H. Suroviec ( "Mr. Suroviec ") to request an advisory from the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Mr. Suroviec is currently employed as Chief Operating Officer and Director of the Intellectual and Developmental Disabilities Division of the Association. Until August 5, 2016, Mr. Suroviec was employed with the Pennsylvania Department of Human Services ( "DHS ") as a Special Advisor to the Secretary of Human Services for the Commonwealth of Pennsylvania ( "Secretary of Human Services "). The Association is a 501(c)(6 non - profit association of providers of human services. Mr. Suroviec's duties with the Association include monitoring and reviewing public policy that impacts the Association's members, being a resource for members, seeking clarification on public policy issues, and speaking on behalf of members before public officials. Mr. Suroviec's duties also include assisting with cross - division initiatives within the Association and being involved in general Association activities. Based upon the above submitted facts, you pose the following questions: (1) . Whether Mr. Suroviec would be permitted to attend DHS advisory committee meetings that would be open to the public, as long as his attendance would not be considered a personal appearance or he would not have contact with or speak to DHS staff during the proceedings as a FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics(@state.pa.us Edley 16 -560 October 24, 2016 Page 2 representative of the Association for purposes of trying to influence an administrative action; (2) Whether Mr. Suroviec would be permitted to register for and attend statewide conferences that would be open to registration by the public and that may be sponsored in part or in whole by DHS, as Ion gg as his attendance would not be considered a personal appearance or he would not have contact with or speak to DHS staff during the proceedings as a representative of the Association for purposes of trying to influence an administrative action; (3) Whether Mr. Suroviec would be permitted to contact DHS staff to ask questions about a proposed rule or policy if such contact would be only for the purpose of seeking general in ormation about or clarification on the matter and not to influence any administrative action such as a change in or particular interpretation of the proposed rule or policy; (4) Whether Mr. Suroviec would be permitted to respond to an email or a telephone call from a member of DHS staff if his response would be just to say something like "For one year after separating from DHS, the Ethics Act prohibits me from having contact with you as a representative of the Association and therefore I may not answer your question at this time'; (5) Whether Mr. Suroviec would be permitted to respond to an email or a telephone call from a member of DHS staff if the matter would pertain to something that Mr. Suroviec was working on while employed with DHS and his answer would not be given as a representative of the Association; and (6) Whether it would be a violation of the Ethics Act if Mr. Suroviec would attend an Association meeting at which a member of DHS staff would happen to be present. Discussion: Pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 a. 1107(10) (11)),' advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory ased 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 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 requester has truthfully disclosed all of the material facts. Preliminarily, it is noted that the submitted facts do not include an official Commonwealth position description for Mr. Suroviec`s former position as a Special Advisor to the Secretary of Human Services. This Advice assumes, without deciding, that in his former capacity as a Special Advisor to the Secretary of Human Services, Mr. Suroviec would be considered a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. Based upon the aforesaid assumption, upon termination of Commonwealth employment, Mr. Suroviec became a "former public employee" subject to Section 1103(g) of the Ethics Act. While Section 11030 does not prohibit a former public official /public employee from accepting a position of employment, it does restrict the former public official /public idle , 16 -560 er 24, 2016 Page 3 employee with regard to "representing" a "person" before "the governmental body with which he has been associated ": § 1103. Restricted activities (g) Former official or employee. - -No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that bo y. 65 Pa.C.S. § 1103(g) (Emphasis added). The terms "represent," "person," and "governmental body with which a public official or public employee �s or has been associated" are specifically defined in the Ethics Act as follows: § 1102. Definitions "Represent. " To act on behalf of any other person in any activity which includes, but is not limited to, the following: personal appearances, negotiations, lobbying and submitting bid or contract proposals which are signed by or contain the name of a former public official or public employee. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision by which the public official or em loyee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. 65 Pa.C.S. § 1102. The term "Person" is very broadly defined. It includes, inter alia, corporations and other businesses. It also includes the former public official /� i pu� 1c employee himself, Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur, pinion 95-007. The term "represent" is also broadly defined to prohibit acting on behalf of any person in any activity. Examples of prohibited representation include: 1) personal appearances before the former governmental body or bodies; (2) attempts to influence; (3) submission of bid or contract proposals which are signed by or contain the name of the former public official /public employee; (4) participating in any matters before the former governmental body as to acting on behalf of a person; and (5) lobbying. Popoyich, Opinion 89 -005. Listing one's name as the person who will provide technical assistance on a proposal, document, or bid, if submitted to or reviewed by the former governmental body, constitutes an attempt to influence the former governmental body. Section 1103(g) also generally prohibits the inclusion of the name of a former public official/ _EdleY, 16 -550 October 24, 2016 Page 4 public employee on invoices submitted by his new employer to the former governmental body, even if the invoices pertain to a contract that existed prior to termination of service with such governmental body. Shay, Opinion 91 -012. However, if such a re- existing contract does not involve the unit where a former public employee worked, the name of the former public employee may appear on routine invoices if required by the regulations of the agency to which the billing is being submitted. AbramsWebster, Opinion 95 -011. A former public official/public employee may assist in the preparation of any documents presented to his former governmental body. However, the former public official/public employee may not be identified on documents submitted to the former governmental body. The former public official/public employee may also counsel any person regarding that person's appearance before his former governmental body. Once again, however, the activity in this respect should not be revealed to the former governmental body. The Ethics Act would not prohibit or preclude making general informational inquiries to the former governmental body to secure information which is available to the general public, but this must not be done in an effort to indirectly influence the former governmental body or to otherwise make known to that body the representation of, or work for, the new employer. Section 1103(g) only restricts the former public official/public employee with regard to representation before his former governmental body. The former public officiallpublic employee is not restricted as to representation before other agencies or entities. However, the "governmental body with which a public official/public employee is or has been associated" is not limited to the particular subdivision of the agency or other governmental body where the public official/public employee had influence or control but extends to the entire body. See, Le islative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion 90 -006; Sharp, Opinion 90- 009 -R. The governmental body with which Mr. Suroviec is deemed to have been associated upon termination of Commonwealth employment is DHS in its entirety. Therefore, for the first year following termination of Mr. Suroviec's Commonwealth employment, Section 1103(8) of the Ethics Act would apply and restrict "representation" of a "person" before DHS. In particular, during the first year following termination of his Commonwealth employment, Section 1103(8) of the Ethics Act would prohibit Mr. Suroviec from performing any fob duty(ies) for his new employer, the Association, that would involve prohibited representation beffore DHS as set forth above. Your six specific questions shall now be addressed. In response to your first question, ou are advised that during the one -year period of applicability of Section 1103(g) of the Ethics Act, Mr. Suroviec would not be permitted to attend DHS advisory committee meetings if Mr. Suroviec's attendance at same would make known to DHS his work for the Association. Cf., Anderson, Advice 16-504; Saylor, Advice 10 -553; MacKinnon, Advice 07 -580. OtFe_rwise, Mr. Suroviec would be permitted to attend DHS committee meetings subject to the conditions that: (1) such meetings would be open to the public; ((2) Mr. Suroviec's role would not go beyond that of a member of the public; and (3) IVIr. Suroviec would not engage in any conduct which would constitute prohibited representation before DHS as de meated above. In response to your second question, you are advised that Section 1103(g) of the Ethics Act would prohibit Mr. Suroviec from registering for and attending such statewide conferences if Mr. Suroviec's registration for and /or attendance at same would make known to DHS his work for the Association. Cf., Anderson, supra; Saylor, supra; MacKinnon, supra. Otherwise, Mr. Suroviec woulT_�rmitted to attend such statewi�on of rences, regardless of DHS sponsorship, subject to the condition that Mr. Edle , 16 -560 October 24, 2016 Page 5 Suroviec would not engage in any conduct which would constitute prohibited representation before DHS as delineated above. If staff of DHS would be in attendance at such a conference, it could be difficult, as a practical matter, for Mr. Suroviec to attend the conference without running afoul of Section 1103(g) of the Ethics Act. In response to your third question, you are advised that Section 1103(g) of the Ethics Act would not prohibit Mr. Suroviec from matting general informational inquiries to DHS staff about a proposed rule or policy subject to the conditions that: (1) the information he would request would be available to the general ublic; and (2) such communications would not involve prohibited representation as set forth above. In response to your fourth and fifth questions, you are advised that Section 1103(g) of the Ethics Act would prohibit Mr. Suroviec from responding to email(s) or telepphone call(s) from DHS staff including but not limited to email(s) or telephone calls) pertaining to matter(s) that Mr. Suroviec was working on while employed with DHSS to the extent that he would be acting on behalf of the Association in any activity involving DHS. Section 1103(g) of the Ethics Act would prohibit Mr. Suroviec from responding to an email(s) or telephone calls) from DHS staff received at Association email address(esNr telephone number(s). In response to your sixth question, you are advised that Section 1103(8) of the Ethics Act would prohibit Mr. Suroviec from attending Association meeting(s) at which member(s) of DHS staff would be present as such would necessarily involve prohibited representation before DHS. Based upon the facts that have been submitted, this Advice has addressed the applicability of Section 1103(g) only. It is expressly assumed that there has been no use of authority of office or employment, or confidential information received by being in the public position, for a private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further, you are advised that Sections 103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer or give to a public official /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public 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. Lastly, 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 Ethics Act. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: This Advice assumes, without deciding, that in his former capacity as a Special Advisor to the Secretary of Human Services for the Commonwealth of Pennsylvania, Stephen H. Suroviec ( "Mr. Suroviec ") would be considered a "public employyee" subject to the Public Official and Employee Ethics Act ( "Ethics Act'), 65 Pa.C.S. § 1101 et sue., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seg. Based upon the aforesaid assumption, upon termination of Commonwealth employment, Mr. Suroviec became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is the Pennsylvania Department of Human Services ( "DHS ") in its entirety. For the first year following termination of Mr. Suroviec's Commonwealth employment, Section 1'103(8) of The Ethics Act would apply and restrict "representation" of a "person" before DHS. The restrictions as to representation outlined above must be followed. During he first year following termination of his Commonwealth employment, Section 1103(g) of the Ethics Act would prohibit Mr. Suroviec from performing any job duty(ies) for his new employer, Edle , 16 -560 October 24, 2016 Page 6 Rehabilitation & Community Providers Association, that would involve prohibited representation before DHS as set forth above. 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 received at the Commission within thirty (30) days of the date of this vice 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. 4in ly, R obin M. Hittie Chief Counsel