HomeMy WebLinkAbout09-542 TiganoJason Tigano
156 Merrimac Street
Pittsburgh, PA 15211
Dear Mr. Tigano:
ADVICE OF COUNSEL
April 30, 2009
09 -542
This responds to your letter dated January 22, 2009, and your faxed
transmissions received March 19, 2009, and March 20, 2009, by which you requested
an advisory from the Pennsylvania State Ethics Commission.
Issue: Whether, as the Public and Legislative Affairs Manager of the Urban
Redevelopment Authority of Pittsburgh ("URA"), you would be considered a "public
employee' subject to the Public Official and Employee Ethics Act ( "Ethics Act'), 65
Pa.C.S. § 1101 et seq.; and if so, whether, upon terminating your employment with the
URA, you would be restricted as to private employment with a consulting company in
performing work on contracts between the consulting company and organizations with
which URA Board Members work.
Facts: You have requested an advisory from the Pennsylvania State Ethics
C ommission based upon the following submitted facts.
You are employed as the Public and Legislative Affairs Manager of the URA.
You have submitted a copy of a position description for your current position, which
document is incorporated herein by reference. Per the position description, as Public
and Legislative Affairs Manager of the URA, you are responsible for working with the
Executive Director and Senior Management in the identification, development, and
implementation of policies, advocacy strategies, and legislative initiatives with the
potential to assist development within the City of Pittsburgh. Your responsibilities and
duties as Public and Legislative Affairs Manager include:
• The identification, formulation, and organization of advocacy efforts for legislation
and policies to assist development;
• Acting as a liaison with state and local legislative representatives;
• Monitoring project budgets and compliance issues;
• Providing technical assistance and support to community groups and real estate
developers;
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April 30, 2009
Page 2
• Managing special projects at the direction of the Executive Director and Senior
Management, which projects may include improvements to systems for collecting
and manipulating data, promoting URA impacts and activities, and tracking and
recommending financing resources;
• The oversight, conceptual development and coordination of implementation
activities related to special projects assigned by the Executive Director, the
majority of which will involve work with multiple URA departments and
stakeholders;
• Coordinating with legislators and lobbyists to identify potential or existing
legislation /policies with the potential to impact economic development in the City
of Pittsburgh and organizing appropriate advocacy efforts with community, public
and private stakeholders, as appropriate;
• Researching and analyzing economic development tools and policies in other
regions and markets and coordinating the process of introducing and
implementing those tools for the benefit of the City of Pittsburgh as appropriate;
• Coordinating project implementation activities related to all aspects of the
development process from planning to construction;
• The conceptual development of project initiatives including research and analysis
related to land acquisition, budgets, planning, and financing options;
• Preparing grant applications; and
• Meeting with developers to discuss development proposals and financing
alternatives.
Position Description, at 1.
You state that in your current position, your duties include coordinating with
county, state, and federal governments to find funding for projects approved by the URA
Board of Directors. You report to the Director of Community and Legislative Relations.
You state that you are not a project manager and that you have no authority to sign or
approve anything on behalf of the URA.
You state that a colleague of yours, who has been an independent contractor for
the past year and a half, is in the process of incorporating a consulting company ( "the
Company "). Your colleague has two contracts ( "the Contracts ") that were awarded by
individuals who serve on the URA Board of Directors. You state that the Contracts are
with the organizations with which the aforesaid individuals work and are not funded by
the URA.
You state that you have been offered a job with the Company. You state that
you would terminate your employment with the URA if you would be hired by the
Company. You further state that you potentially could work on the Contracts for the
Company.
Based upon the above submitted facts, you ask the following questions:
1. Whether, in your current position as the Public and Legislative Affairs
Manager of the URA, you would be considered a "public employee"
subject to the Ethics Act; and
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April 30, 2009
Page 3
2. Whether the Ethics Act would impose any prohibitions or restrictions upon
you with regard to accepting an employment position with the Company.
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, 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.
In the instant matter, the initial question to be addressed is whether, in your
capacity as the Public and Legislative Affairs Manager of the URA, you would be
considered a "public employee" subject to the Ethics Act.
The Ethics Act defines the term "public employee" as follows:
§ 1102. Definitions
"Public employee." Any individual employed by the
Commonwealth or a political subdivision who is responsible
for taking or recommending official action of a nonministerial
nature with regard to:
(1) contracting or procurement;
(2) administering or monitoring grants or subsidies;
(3) planning or zoning;
(4) inspecting, licensing, regulating or auditing any
person; or
(5) any other activity where the official action has an
economic impact of greater than a de minimis nature
on the interests of any person.
The term shall not include individuals who are employed by
this Commonwealth or any political subdivision thereof in
teaching as distinguished from administrative duties.
65 Pa.C.S. § 1102.
The Regulations of the State Ethics Commission similarly define the term "public
employee" and set forth the following additional criteria:
(ii) The following criteria will be used, in part, to
determine whether an individual is within the definition of
"public employe ":
(A) The individual normally performs his responsibility
in the field without onsite supervision.
(B) The individual is the immediate supervisor of a
person who normally performs his responsibility in the field
without onsite supervision.
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April 30, 2009
Page 4
(C) office.
(D)
decisions.
The individual is the supervisor of a highest level
The individual has the authority to make final
(E) The individual has the authority to forward or
stop recommendations from being sent to the person or
body with the authority to make final decisions.
(F) The individual prepares or supervises the
preparation of final recommendations.
(G) The individual makes final technical recommen-
dations.
(H) The individual's recommendations or actions are
an inherent and recurring part of his position.
(1) The individual's recommendations or actions
affect organizations other than his own organization.
(iii) The term does not include individuals who are
employed by the Commonwealth or a political subdivision of
the Commonwealth in teaching as distinguished from
administrative duties.
(iv) Persons in the following positions are generally
considered public employes:
(A) Executive and special directors or assistants
reporting directly to the agency head or governing body.
(B) Commonwealth bureau directors, division chiefs
or heads of equivalent organization elements and other
governmental body department heads.
(C) Staff attorneys engaged in representing the
department, agency or other governmental bodies.
(D) Engineers, managers and secretary- treasurers
acting as managers, police chiefs, chief clerks, chief purchasing
agents, grant and contract managers, administrative officers,
housing and building inspectors, investigators, auditors, sewer
enforcement officers and zoning officers in all governmental
bodies.
(E) Court administrators, assistants for fiscal affairs
and deputies for the minor judiciary.
(F) School superintendents, assistant superintendents,
school business managers and principals.
(G) Persons who report directly to heads of
executive, legislative and independent agencies, boards and
commissions except clerical personnel.
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April 30, 2009
Page 5
(v) Persons in the following positions are generally
not considered public employes:
(A) City clerks, other clerical staff, road masters,
secretaries, police officers, maintenance workers, construction
workers, equipment operators and recreation directors.
(B) Law clerks, court criers, court reporters, probation
officers, security guards and writ servers.
(C) School teachers and clerks of the schools.
51 Pa. Code § 11.1.
The following terms are defined in the Ethics Act as follows:
§ 1102. Definitions
"Ministerial action." An action that a person
performs in a prescribed manner in obedience to the
mandate of legal authority, without regard to or the exercise
of the persons own judgment as to the desirability of the
action being taken.
"Nonministerial actions." An action in which the
person exercises his own judgment as to the desirability of
the action taken.
65 Pa.C.S. § 1102.
Status as a "public employee" subject to the Ethics Act is determined by an
objective test. The objective test applies the Ethics Act's definition of the term "public
employee" and the related regulatory criteria to the powers and duties of the position
itself. Typically, the powers and duties of the position are established by objective
sources that define the position, such as the job description, job classification
specifications, and organization chart. The objective test considers what an individual
has the authority to do in a given position based upon these objective sources, rather
than the variable functions that the individual may actually perform in the position. See,
Philips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion
04 -002; Shienvold, Opinion 04 -001; Shearer, Opinion 03 -011. The Commonwealth Court
of Pennsylvania has specifically considered and approved this Commission's objective
test and has directed that coverage under the Ethics Act be construed broadly and that
exclusions under the Ethics Act be construed narrowly. See, Phillips, supra.
The first portion of the statutory definition of "public employee" includes
individuals with authority to take or recommend official action of a nonministerial nature.
65 Pa.C.S. § 1102. Likewise, the regulatory criteria for determining status as a public
employee, as set forth in 51 Pa. Code § 11.1( "public employee ")(ii), include not only
individuals with authority to make final decisions but also individuals with authority to
forward or stop recommendations from being sent to final decision - makers; individuals
who prepare or supervise the preparation of final recommendations; individuals who
make final technical recommendations; and individuals whose recommendations are an
inherent and recurring part of their positions. See, Reese /Gilliland, Opinion 05 -005.
In applying the objective test in the instant matter, the necessary conclusion is
that, in your capacity as the Public and Legislative Affairs Manager of the URA, you
would be considered a "public employee" subject to the Ethics Act.
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April 30, 2009
Page 6
As the Public and Legislative Affairs Manager of the URA, you have the ability to
take or recommend official action of a nonministerial nature with respect to
subparagraph (5) and possibly subparagraph (2) within the definition of "public
employee" as set forth in the Ethics Act, 65 Pa.C.S. § 1102. Specifically, per the
position description, you have the authority to: (1) work with the Executive Director and
Senior Management in identifying, developing and implementing policies and legislative
initiatives with the potential to assist development within the City of Pittsburgh; (2)
monitor project budgets and compliance issues; (3) coordinate the process of
introducing and implementing economic development tools /policies for the benefit of the
City of Pittsburgh; (4) conceptually develop project initiatives including research and
analysis related to land acquisition, budgets, planning, and financing options; (5) meet
with developers to discuss development proposals and financing alternatives; and (6)
manage special projects, which may include recommending financing resources.
Additionally, depending upon facts not included within your submission, your authority to
prepare grant applications could provide additional support for the conclusion that you
are a "public employee" subject to the provisions of the Ethics Act.
The foregoing activities would also meet the criteria for determining your status
as a public employee under the Regulations of the State Ethics Commission, specifically
at 51 Pa. Code § 11.1, "public employee," subparagraphs (i) and (ii).
Consequently, upon termination of your employment with the URA, you would
become a "former public employee" subject to Section 1103(g) of the Ethics Act.
Section 1103(g) of the Ethics Act restricts a former public official /public 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 body.
65 Pa.C.S. § 1103(g) (Emphasis added).
The terms "represent," "person," and "governmental body with which a public
official or public employee is 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
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April 30, 2009
Page 7
subdivision by which the public official or employee 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 employee himself, Confidential
Opinion, 93 -005, as well as a new governmental employer. Ledebur, Opinion 95 -007.
The term "representation" 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.
Popovich, 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 /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 pre- existing contract does not involve the unit where the 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. Abrams/Webster, 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 ublic
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 official/
public 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, Legislative Journal of House, 1989 Session, No.
15 at 290, 291; Sirolli, Opinion 90 -006; Sharp, Opinion 90- 009 -R.
The governmental body with which you would be deemed to have been
associated upon termination of public service would be the URA in its entirety.
Therefore, for the first year following termination of your employment with the URA,
Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons"
before the URA.
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April 30, 2009
Page 8
Turning to your second specific question, you are advised that Section 1103(g) of
the Ethics Act would not prohibit you from accepting employment with the Company.
However, during the first year following termination of your employment with the URA,
Section 1103(g) of the Ethics Act would prohibit you from performing any job duties that
would involve prohibited representation before the URA as set forth above.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion: In your capacity as the Public and Legislative Affairs Manager of
the Urban Redevelopment Authority of Pittsburgh ( "URA "), you would be considered a
"public employee" as that term is defined in the Public Official and Employee Ethics Act
(`Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon termination of your employment with the
URA, you would become a "former public employee" subject to Section 1103(g) of the
Ethics Act. The governmental body with which you would be deemed to have been
associated upon termination of public service would be the URA in its entirety. Section
1103(g) of the Ethics Act would restrict you from engaging in any activity that would
constitute prohibited representation before the URA for one year following termination of
your employment with the URA. The restrictions as to representation outlined above
must be followed. 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
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,
Robin M. Hittie
Chief Counsel