Loading...
HomeMy WebLinkAbout17-002 EdleyY Y rt�''1J STATE ETHICS COMMISSION 309 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Maria Feeleyy Melanie DePalma DATE DECIDED: 1125117 DATE MAILED: 217117 17002 To the Requester /Appellant: Richard S. Edley, Ph.D. Chief Executive Officer and President Rehabilitation & Community Providers Association Dear Mr. Edley: This Opinion is issued in response to the appeal of a portion of Advice of Counsel 16-560, which Advice was issued on October 24, 2016. I. ISSUE: Whether Section 1103(g) of the Public Official and Employee Ethics Act ( "Ethics Act"), 65 Pa.C.S. � 1103(g), would impose restrictions upon an individual formerly employed as a Special Advisor to the Secretary of Human Services for the Commonwealth of Pennsylvania with regard to attending a committee meeting held by the individual's new employer - -an association of providers of human services - -where a representative of the Pennsylvania Department of Human Services would be present at such committee meeting. II. FACTUAL BASIS FOR DETERMINATION: By letter dated November 10, 2016, you appealed a portion of Edley, Advice of Counsel 16 -560, which was issued on October 24, 2016. Your initial advisory request presented facts that were summarized in the Advice of Counsel as follows: As Chief Executive Officer and President of Rehabilitation & Community Providers Association (the "Association "), you have been authorized by Stephen H. Suroviec ("Mr. Suroviec ") to request an advisory from the P.O. BOX 1 1470, HARRISBURG, PA I7108-1470 • 717 -783 -1610 ® 1 -800 -932 -0936 ° www.ethics.state.pa . us Eddie , 17 -002 February 7, 2017 Page 2 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. �uroviec'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. Edley, Advice of Counsel 16 -560, at 1. In your initial advisory request letter you posed six questions, only the sixth of which is the subject of your appeal. For your sixth question, you asked 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. Advice of Counsel 16 -560 preliminarily noted that the submitted facts did not include an official Commonwealth position description for Mr. Suroviec's former position as a Special Advisor to the Secretary of Human Services. The Advice assumed, without deciding, that in his former capacity as a Special Advisor to the Secretary of Human Services, Mr. Suroviec would be considered a "public em loyee" subject to the Ethics Act and the Regulations of this Commission, 51 Pa. Code § 11.1 et sec.. Based upon the aforesaid assumption, the Advice of Counsel determined that upon termination of Commonwealth employment, Mr. Suroviec became a "former public employyee" subject to Section 1103(8) of the Ethics Act. The Advice further determined that Mr. Suroviec's former governmental body is DHS in its entirety. The Advice set forth the restrictions of Section 1103(g) of the Ethics Act as deemed applicable to Mr. Suroviec. In responding to your sixth question, the Advice concluded that Section 1103 g) of the Ethics Act would prohibit Mr. Suroviec from attending Association meeting(s) a which member(s) of DHS staff would be present as such would necessarily involve prohibited representation before DHS. By letter dated November 10, 2016, you appealed Advice of Counsel 16 -560 solely with respect to the Advice's answer to your sixth question. You state that you do not disagree that Mr. Suroviec should not be present if the Association would hold a small meeting for the purpose of discussing an issue directly with representatives of DHS. You further state that your sixth question was poorly worded and that you did not envision a small meeting between a few individuals from DHS and a few individuals from the Association. You state that what you intended to ask about envisioned a meeting of a committee of the Association. By way of your appeal letter, you pose a new question based upon the following additional submitted facts. The Association consists of approximately 330 provider members. The Association is broken into divisions, each of which convenes one or more committees consisting of members from that particular discipline. Committee meetings are typically held quarterly Eddie , 17 -002 February 7, 2017 Page 3 and usually have sixty to seventy members in attendance. A committee meeting is chaired by one member, and guest speakers from state agencies such as DHS are often invited to speak for thirty to sixty minutes on a particular topic. You now ask whether Mr. Suroviec would be permitted to attend an Association committee meeting at which a representative of DHS would be present as long as Mr. Suroviec would only listen and not engage in any conduct that would involve prohibited representation before DHS. You contend that Mr. Suroviec's mere attendance at an Association committee meeting would not constitute a "personal appearance" so as to fall within the Ethics Act's definition of the term "represent." You state that according to the MICROSOFT ENCARTA DICTIONARY (online), a "personal appearance" is defined, inter alia, as "[a]n occasion when an important or famous person takes part in a public event." You assert that the aforesaid definition would seem to be in line with the purposes of the Ethics Act. You express your view that a "personal appearance" would be something that would draw attention to or entice someone to attend an event, such as, for example, the attendance of a famous or important person at an event to deliver a speech or sign autographs. You request that the Advice of Counsel be modified or supplemented to reflect that Mr. Suroviec would be permitted to attend an Association committee meeting as long as he would not engage in any prohibited representation before DHS. By letter dated January 5, 2017, you were notified of the date, time and location of the public meeting at which your request would be considered. Ill. 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, this 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. §§ 110710), (11). An advisory only affords a defense to the extent the requester has truthfully disc used all of the material facts. In considering the merits of your appeal, we note that you do not dispute the Advice of Counsel's assumption that in the 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 this Commission. You do not contest the Advice of Counsel's determination that based upon the aforesaid assumption, upon termination of Commonwealth employment, Mr. Suroviec became a "former public empployee" subjec 03( t to Section 119) of the Ethics Act. You do not dispute that Mr. Suroviec's former governmental body is DHS in its entirety. Section 1103(g) of the Ethics Act provides as follows: § 1103. Restricted activities (g) Former official or employee. - -No former public official or public employee shall represent a er�son, 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 body. 65 Pa.C.S. § 1103(g) (Emphasis added). The terms "represent" and "person" are specifically defined in the Ethics Act as follows: Edffe , 17 -002 February 7, 2017 Page 4 § 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. 65 Pa.C.S. § 1102 (Emphasis added). The term "person" is defined to include, inter alia, associations. The term "represent" is broadly defined to prohibit acting on behalf of any person in any activity and not merely those activities specifically included within the definition to exemplify its meaning. Shay, Opinion 91 -012. In the instant matter, it is clear that the Ethics Act's definition of the term "represent" would encompass Mr. Suroviec's attendance at an Association committee meeting. Such attendance would communicate to DHS Mr. Suroviec's work for the Association. During the one -year period of applicability of Section 1103(g), a former public employee may not act in such a way as to make known to the former governmental body his representation of, or work for, the new employer. See, e. , Conner, Opinion 12 -002 at 4 -5; Desmond, Opinion 08 -004 at 6; Wagner, Opinion�0T�; Confidential Opinion, 07.0 2 —�; Conti Opinion 07 -007, at 4. You are advised that in attending an Association committee meeting, Mr. Suroviec would be acting on behalf of, and therefore "representing," the Association. During the first year following termination of his Commonwealth employment, Section 11 03(g) of the Ethics Act would prohibit Mr. Suroviec from attending Association committee meeting(s) at which representative(s) of DHS would be present -- regardless of the nature of Mr. Suroviec's further conduct at such meeting(s)- -as Mr. Suroviec's attendance in and of itself would constitute prohibited representation of the Association before DHS. We adopt and incorporate herein by reference the recitation of the Section 1103(g) restrictions set forth in Advice of Counsel 16 -560. Based upon the above analysis, we deny the appeal and affirm Edley, Advice of Counsel 16 -560. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. IV. CONCLUSION: This Opinion assumes, without deciding, that in the 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 " ublic employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act" , 65 I a.C.S.§ 1101 et seq., and the Regulations of the Penslvania State Ethics Commission, 51 Pa. Code §T1.1 et se . 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 oDHS) in its entirety. Under the submitted facts, during the first year following termination f his Commonwealth employment, Section 1103(g) of the Ethics Act would prohibit Mr. Suroviec from attending committee meeting(s) of his employer, Rehabilitation & Community Providers Association (the "Association "), at which representative(s) of DHS Edle , 17 -002 February 7, 2017 Page 5 would be present -- regardless of the nature of Mr. Suroviec's further conduct at such meeting(s) - -as Mr. Suroviec's attendance in and of itself would constitute prohibited representation of the Association before DHS. The appeal is denied. Advice of Counsel 16 -560 is affirmed. Act. The propriety of the proposed conduct has only been addressed under the Ethics Pursuant to Section 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. By the Commission, a 4 Ni olas A. Colafella Chair