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HomeMy WebLinkAbout19-502 CiccocioppoPHONE: 717 - 783 -1610 TOLL FREE: 1- 800 - 932 -0936 To the Requester: Yz' STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120 -0400 ADVICE OF COUNSEL February 1, 2019 Martin Ciccocioppo, Director Pennsylvania eHealth Partnership Program Pennsylvania Department of Human Services Dear Mr. Ciccocioppo: FACS[M ILE: 717- 787 -0806 WEBSITE: www.ethics.paxiov 19 -502 This responds to your letter dated December 20, 2018, by which you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission ") on behalf of David F. Simon, Esquire. Issue: Whether, as a Member and Chairperson of the Pennsylvania eHealth t a nership Advisory Board, David F. Simon, Esquire, would be considered a "public official" subject to the Public Official and Employee Ethics Act (the "Ethics Act'), 65 Pa.C.S. § 1101 et seg., and the Regulations of the State Ethics Commission, 5 Pa. Code § 11.1 et sec.., and particularly, the requirements for filing Statements of Financial Interests. Facts: You seek a determination as to whether David F. Simon, Esquire ( "Mr. Si on "), in his capacity as a Member and Chairperson of the Pennsylvania eHealth Partnership Advisory Board ( "eHealth Partnership Advisory oard "), would be considered a .'public official" subject to the Ethics Act and the Regulations of the State Ethics Commission and therefore would be required to file Statements of Financial Interests. It is administratively noted that pursuant to Act 76 of 2016, the Human Services Code, 62 P.S. 0 et sec ., was amended to provide for the establishment of the Pennsylvania Ae1a1t1h­PdFFnership Proggram within the Pennsylvania Department of Human Services. See, 62 P.S. § 1402 -C. Act 76 of 2016 further amended the Human pr Services Code to ovide for the establishment of the eHealth Partnership Advisory Board as an advisory board within the Pennsylvania Department of Human Services. See, 62 P.S. § 1404 -C. The eHealth Partnership Advisory Board is composed of: (1) the Secretary of Human Services for the Commonwealth of Pennsylvania or a designee; (2) the Secretary of Health for the Commonwealth of Pennsylvania or a designee; (3) the Insurance Commissioner of the Commonwealth of Pennsylvania or a designee; and (4) various Members appointed by the Secretary of Human Services, the President Pro Tempore of the Pennsylvania Senate, and the Speaker of the Pennsylvania House of Representatives. See, 62 P.S. § 1404 -C. Ciccocio o, 19 -502 February 1, 2019 Page 2 Section 1404-C(i) of the Human Services Code provides that Members of the eHealth Partnership Advisory Board "may not receive a salary or per diem allowance for serving as members of the board but shall be reimbursed for actual and necessary expenses incurred in the performance of the members' duties." 62 P.S. § 1404 -C(i). You state that the eHealth Partnership Advisory Board has no authority to expend public funds or to exercise the power of the Commonwealth of Pennsylvania. [t is noted that the Human Services Code does not set forth any powers, duties, or responsibilities of the eHealth Partnership Advisory Board but merely establishes it as an `advisory board." 62 P.S. § 1404 -C. Discussion: It is initials noted that pursuant to Sections 1107(10) and 1107(11) of e t -cs ct, 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 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 disc osed all of the material facts. The term "public official" is defined in the Ethics Act as follows: § 9102. Definitions "Public official." Any person elected by the public or elected or appointed by a governmental body or an appointed official in the executive, legislative or judicial branch of this Commonwealth or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. 65 Pa.C.S. § 1102. The Regulations of the State Ethics Commission similarly define the term "public official" and set forth the followin additional criteria that are used to determine whether the advisory board exception applies: (i) The following criteria will be used to determine if the exception in this paragraph is applicable: (A) The body will be deemed to have the power to expend public funds if the body may commit funds or may otherwise make payment of moneys, enter into contracts, invest funds held in reserves, make loans or grants, borrow money, issue bonds, employ staff, purchase, lease, acquire or sell real or personal property without the consent or approval of the governing body and the effect of the power to expend public funds has a greater than de minimis economic impact on the interest of a person. (B) The body will be deemed to have the authority to otherwise exercise the power of the Commonwealth or a political subdivision if one of the following exists: Ciccodo aa, 19 -502 e rF b uary 1, 2019 Page 3 (1) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (11) The body exercises a basic power of government and performs essential governmental functions. (III) The governing authority is bound by statute or ordinance to accept and enforce the rulings of the body. (IV) The body may compel the governing authority to act in accordance with the body's decisions or restrain the governing authority from acting contrary to the body's decisions. (V)) The body makes independent decisions which are effective without approval of the governing authority. (VI) The body may adopt, amend and repeal resolutions, rules, regulations or ordinances. (VII) The body has the power of eminent domain or condemnation. (VI11)The enabling legislation of the body indicates that the body is established far exercising public powers of the Commonwealth or a political subdivision. (ii) The term does not include judges and inspectors of elections, notary publics and political party officers. (iii) The term generally includes persons in the following offices: (A) Incumbents of offices filled by nomination of the Governor and confirmation of the Senate. (B) Heads of executive, legislative and independent agencies, boards and commissions. (C) Members of agencies, boards and commissions appointed by the General Assembly or its officers. (D) Persons appointed to positions designated as officers by the Commonwealth or its political subdivisions. (E) Members of municipal, industrial development, housing, parking and similar authorities. (F ) Members of zoning hearing boards and similar quasi-judicial bodies. (G) Members of the public bodies meeting the criteria in paragraph (i)(A). 51 Pa. Code § 11.1. February i y 1, 119 February , 2019 Page 4 In applying the Ethics Act's definition of the term "public official" in the instant matter, the necessary conclusion is that Mr. Simon, in his capacity as a Member and Chairperson of the eHealth Partnership Advisory Board, would fall within the statutory exception for members of purely dvisory boards lacking authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or a political subdivision. This conclusion is based upon your factual submission that the eHealth Partnership Advisory Board has no authority to expend public funds or to exercise the power of the Commonwealth of Pennsylvania, as well as the fact that the Human Services Code does not set forth any owers, duties, or responsibilities of the eHealth Partnership Advisory Board but merely establishes it as an `advisory board." 62 P.S. § 1404 -C. Therefore, based upon the submitted facts, you are advised that Mr. Simon, in his capacity as a Member and Chairperson of the eHealth Partnership Advisory Board, is not a "public official" subject to the Ethics Act or the Regulations of the State Ethics Commission, and he is not required to file Statements of Financial Interests pursuant to the Ethics Act. Conclusion: David F. Simon, Esquire, in his capacity as a Member of the ennsy vania eHealth Partnership Advisory oard, is not a "public official" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et se q., or the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq., and t erefore he is not required to file Statements of Financial Interests pursuant to 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 Op►n►on will be issued by the Commission. Any such appeal must be in writing and must be act�ual/V received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § �3.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Robin M. Hittie Chief Counsel