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Home My WebLink About12-558 Abernathy ADVICE OF COUNSEL August 21, 2012 Brian Abernathy th 1522 S. 12 Street Philadelphia, PA 19147 12-558 Dear Mr. Abernathy: This responds to your letters of July 3, 2012, and July 16, 2012, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose any restrictions upon employment of the Chief of Staff and Deputy Managing Director to the Managing Director of the City of Philadelphia (“City”) following termination of employment with the City. Facts: You request an advisory from the Pennsylvania State Ethics Commission regarding the post-employment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. You are currently employed as the Chief of Staff and Deputy Managing Director to the Managing Director of the City. You have submitted copies of a position description for the position of Chief of Staff, Managing Director’s Office, and an organizational chart for the City, both of which documents are incorporated herein by reference. You state that pursuant to the Philadelphia Home Rule Charter (“Charter”), the Managing Director is the City’s Chief Operating Officer. It is administratively noted that the following provisions of the Charter relating to the Managing Director are pertinent to the instant matter: § 3.3-206. Other Department Heads, with the Approval of the Mayor. (a) The Managing Director shall appoint the Police Commissioner, the Health Commissioner, The Fire Commissioner, the Street Commissioner, the Recreation Commissioner, the Welfare Commissioner, the Water Commissioner, the Commissioner of Public Property, the Commissioner of Licenses and Inspections, and the Commissioner of Records;…. § 5.5-100. Supervisory Powers. Abernathy, 12-558 August 21, 2012 Page 2 The Managing Director shall exercise supervision over all activities of those departments whose heads he appoints and the boards and commissions connected with such departments and shall be the contact officer between the Mayor and such departments, boards and commissions. Philadelphia Home Rule Charter, §§ 3.3-206, 5.5-100. You state that in 2008, Mayor Michael A. Nutter (“Mayor Nutter”) restructured the City government, maintaining the Managing Director title but assigning many of the powers of the Office of the Managing Director to Deputy Mayors. You state that traditionally, operational Departments like the Department of Streets, the Department of Licenses and Inspections, and the Water Department would report to the Managing Director, but the Office of the Managing Director now has no direct authority over such Departments due to the reduction of the Managing Director’s role by Mayor Nutter. You additionally state that the Departments of Public Property, Records, Fleet, Human Resources, Information and Technology, and Procurement report directly to the Office of the Managing Director. You state that as the Managing Director’s Chief of Staff, your responsibilities include: (1) managing the administrative staff and budget; (2) scheduling and planning for the Managing Director; (3) providing personal support for the Managing Director; (4) serving as gatekeeper for the Managing Director; (5) supervising the office’s project portfolio; and (6) managing relationships with other City Departments and City Council. You support the Departments of Public Property, Records, Fleet, Human Resources, Information and Technology, and Procurement and have influence on their operations, but state that you do not have direct control or authority over them. You serve as the Managing Director’s appointee, with voting power, to the Philadelphia City Planning Commission (“City Planning Commission”) and the Philadelphia Housing Development Corporation (“PHDC”). You attend meetings of the Board of the Philadelphia Industrial Development Corporation (“PIDC”) on behalf of the Managing Director, but you do not participate in decisions or have voting power. You also represent the Office of the Managing Director on a number of issues before City Council. You seek guidance as to whether the Ethics Act would impose any restrictions upon you if you would terminate your employment with the City and accept employment with a real estate developer (the “Developer”). In particular, you pose the following questions: (1) Whether you would be permitted to represent the Developer before the City Planning Commission; (2) Whether you would be permitted to represent the Developer before the City Commerce Director/Deputy Mayor for Planning and Economic Development, who serves as a Member of the City Planning Commission; (3) Whether you would be permitted to represent the Developer before PIDC; (4) Whether you would be permitted to represent the Developer before operational Departments that presently do not directly report to the Office of the Managing Director; (5) Whether you would be permitted to represent the Developer before Departments that report directly to the Office of the Managing Director; and Abernathy, 12-558 August 21, 2012 Page 3 (6) Whether you would be permitted to advocate for the Developer before City Council. 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. As the Chief of Staff and Deputy Managing Director to the Managing Director of the City, you 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. This conclusion is based upon the submitted facts, which when reviewed on an objective basis, indicate clearly that the power exists to take or recommend official action of a non-ministerial nature with respect to one or more of the following: contracting; procurement; administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies) where the economic impact is greater than de minimis on the interests of another person. Consequently, upon termination of employment with the City, you would become a “former public employee” subject to Section 1103(g) of the Ethics Act. While Section 1103(g) does not prohibit a former public official/public employee from accepting a position of employment, it does restrict the 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. Abernathy, 12-558 August 21, 2012 Page 4 "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 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 official/public employee himself, Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur, Opinion 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. 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 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. 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 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 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. Based upon the submitted and administratively noted facts, you are advised that the governmental body with which you would be deemed to have been associated upon Abernathy, 12-558 August 21, 2012 Page 5 termination of employment with the City, hereinafter collectively referred to as your “former governmental body,” would consist of: (1) the Office of the Managing Director; (2) all City Departments over which the Managing Director has authority pursuant to the Charter or otherwise; (3) the City Planning Commission; and (4) PHDC. To the extent there are factual or legal issues as to which City Departments fall within the authority of the Managing Director, this advisory is not a vehicle to resolve such issues. However, the submitted fact that the City Commerce Director also serves on the City Planning Commission would not be sufficient, in and of itself, to include the City Commerce Director within your former governmental body. For the first year following termination of your employment with the City, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before your “former governmental body” as set forth above. In response to your specific questions, you are advised that during the first year following termination of your employment with the City, Section 1103(g) of the Ethics Act would prohibit you from representing the Developer before the City Planning Commission, City Department(s) that fall under the authority of the Office of the Managing Director, or any other entity(ies) that would be included within your “former governmental body” as delineated above. Section 1103(g) of the Ethics Act would not prohibit you from representing the Developer before entity(ies) that would not be included within your former governmental body as long as in performing such activity(ies), you would not engage in prohibited representation before your “former governmental body” as set forth above. 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 1103(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. Conclusion: As the Chief of Staff and Deputy Managing Director to the Managing Director of the City of Philadelphia (“City”), 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 the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq. Upon termination of your employment with the City, you would become a “former public employee” subject to Section 1103(g) of the Ethics Act. Based upon the submitted and administratively noted facts, the governmental body with which you would be deemed to have been associated upon termination of employment with the City, hereinafter collectively referred to as your “former governmental body,” would consist of: (1) the Office of the Managing Director; (2) all City Departments over which the Managing Director has authority pursuant to the Philadelphia Home Rule Charter or otherwise; (3) the Philadelphia City Planning Commission; and (4) the Philadelphia Housing Development Corporation. For the first year following termination of your employment with the City, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before your “former governmental body” as delineated Abernathy, 12-558 August 21, 2012 Page 6 above. The restrictions as to representation outlined above must be followed. 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 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