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HomeMy WebLinkAbout89-026 MorrisDear Mr. Morris: I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Robert W. Brown, Vice Chair G. Sieber Pancoast Dennis C. Harrington James M. Howley Michael J. Washo DATE DECIDED: October 26, 1989 DATE MAILED: November 8. 1989 Mr. Roland Morris 89 -026 Duane, Morris & Heckscher 1 Franklin Plaza Philadelphia, PA 19102 Re: Former Public Official, Pennsylvania Health Care Cost Containment Council, Represent, Person, Hospital Association, Government Body with Which Associated. This Opinion is issued in response to your request of September 20, 1989. Whether a former noncompensated member of the Pennsylvania Health Care Cost Containment Council is restricted by Section 3(g) of the Public Official and Employee Ethics Law from representing a hospital association before the Council for a period of one year after the termination of his service. II. Factual Basis for Determination: Mr. Douglas J. Spurlock is a former member of the Pennsylvania Health Care Cost Containment Council, hereinafter Council, and is currently employed by the Hospital Association of Pennsylvania, hereinafter Association, as its Chief Operating Officer. Mr. Spurlock was employed as the Chief Executive Officer of Polyclinic Medical Center of Harrisburg, an acute care general hospital, and in that capacity had occasion to become active with and render assistance to the Association. The Association, as one of the leading hospital associations in the nation, includes as members those hospitals which provide acute care in the Commonwealth. The Association advocates for member hospitals in order to bring their positions, capabilities and Mr. Roland Morris Page 6 political subdivision if one of the following exists: (I) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (II) 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. (VIII) The enabling legislation of the body indicates that the body is established for 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. Mr. Roland Morrie Page 7 (iii) The term generally includes persons in the following offices: (A) Incumbents of offices filled by nomination of Governor and confirmation of the Senate. (B) Heads of executive, legislative, and independent agencies, boards and commissions. (C) Persons who report directly to heads of executive, legislative and independent agencies, boards and commissions except clerical personnel. (D) Members of agencies, boards and commissions appointed by the General Assembly or its officers. (E) Persons appointed to positions designated as offices by code, charter or the like of the Commonwealth or its political subdivisions. (F) Members of municipal, industrial development, housing, parking and similar authorities. (G) Members of zoning hearing boards and similar quasi judicial bodies. (H) Members of the public bodies meeting the criteria set forth in subparagraph (i)(A). 51 Pa. Code $1.1. One need look no further than the enabling legislation of the Pennsylvania Health Care Containment Council to determine that it is indeed more than merely an advisory board and that it has the power to expend public funds. Thus members of said council are public officials within the purview of the Ethics Law. You argue that Act 9 of 1989 should not control because Section 9 provides that the Act does not have application to violations committed prior to the effective date of the Act. As previously noted however, there were in fact no activities by Mr. Spurlock which took Mr. Roland Morris Page 8 place prior to the effective date of Act 9. Thus there could have been no violations to which the cited provision would apply. In any event, as noted above, our decision would be the same under Act 170 in light of the decision in Snider V. Thornburgh, supra. Finally, you assert that Mr. Spurlock should not be treated as a public official for purposes of prohibiting representation pursuant to §3(g), since he would represent the same interests as he did while serving on the Council. Although Mr. Spurlock would be dealing with the same subject matter in his capacity as a representative for the Association, he would now be representing their private interest, in contrast to the public interest which he represented as a member of the Council. Conflicts between the public interest and the private interests of individuals prompted the passage of the Ethics Law; this underlying principle is formulated in Section 3(g) as well as other sections of the Ethics Law which is intended to protect the public interest. In this case, Mr. Spurlock is no longer representing the public interest. In summary, Mr. Spurlock would be prohibited from representing the Association before his former governmental body, the Council, under Section 3(g) of the Ethics Law for a period of one year after the termination of his service on July 13, 1989. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. IV. Conclusion: A member of the Pennsylvania Health Care Cost Containment Council, was a public official as that term is defined in the Ethics Law. Consequently, upon the termination of his governmental service he became a former public official subject to Section 3(g) of the Ethics Law. The governmental body with which said official was associated was the Council and therefore he may not represent any "person," including the Hospital Association of Pennsylvania, before that body for a period of one year. The propriety of the proposed conduct has been addressed only under the Ethics Law. Pursuant to Section 7(9)(i), this Opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the advice given. Mr. Roland Morris Page 9 such. This letter is a public record and will be made available as Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By the Commission, Robert W. Brown, Vice Chair