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HomeMy WebLinkAbout13-565 Mannino ADVICE OF COUNSEL September 12, 2013 Andrea L. Mannino 126 Hermit Street Philadelphia, PA 19127 13-565 Dear Ms. Mannino: This responds to your letter dated August 14, 2013, 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 restrictions upon employment of a Special Assistant to the Revenue Commissioner 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. On July 5, 2013, you ended your employment as the Special Assistant to the Revenue Commissioner of the City. It is administratively noted that per the Philadelphia Home Rule Charter and City Ordinance(s), the Revenue Commissioner is the head of the City Department of Revenue. You have submitted copies of a job description for the position of Special Assistant to the Revenue Commissioner and an organizational chart for the City Department of Revenue, both of which documents are incorporated herein by reference. You state that in your former position as the Special Assistant to the Revenue Commissioner, you attended meetings with and for the Revenue Commissioner, wrote reports for the City Department of Revenue and developed its website, responded to taxpayer inquiries, and helped develop outreach material. On August 1, 2013, you became a Director at a consulting firm named “Econsult Solutions, Inc.” (the “Firm”), which is located in the City. The Firm provides economic consulting in areas including urban economics, public policy and finance, transportation, community development, and real estate economics. In your role with the Firm, you will help manage projects, perform analyses, write reports, and meet with clients. You state that the Firm did not have any contracts with the City Department of Revenue during your time of employment with the City but did have contracts with other City units. You state that as to such contracts, you did not have any involvement in matters such as the hiring of the Firm, project specifications, payment, and the like. Mannino, 13-565 September 12, 2013 Page 2 The Firm currently does not have any contracts with the City Department of Revenue. You state that throughout its regular course of business, the Firm may contract with the City itself; City Departments under the authority of the City Finance Director (which Departments include the City Department of Revenue) and other City Departments/bodies; City Council; independently elected row offices; and City-related organizations such as the Philadelphia Industrial Development Corporation. Based upon the above submitted facts, you ask whether the Ethics Act would permit you, in your new role with the Firm, to deal professionally with any of the aforesaid entities during the next year. 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 former capacity as the Special Assistant to the Revenue Commissioner 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 job description, which when reviewed on an objective basis, indicates 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 your employment with the City, you became 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,” “governmental body,” “governmental body with which a public official or public employee is or has been associated,” and “political subdivision” 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 Mannino, 13-565 September 12, 2013 Page 3 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." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body or other establishment in the executive, legislative or judicial branch of a state, a nation or a political subdivision thereof or any agency performing a governmental function. "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. "Political subdivision." Any county, city, borough, incorporated town, township, school district, vocational school, county institution district, and any authority, entity or body organized by the aforementioned. 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 Mannino, 13-565 September 12, 2013 Page 4 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 are deemed to have been associated upon termination of your employment with the City is the City Department of Revenue in its entirety. Therefore, 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 the City Department of Revenue. Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are advised that the Ethics Act would restrict your conduct in your new position with the Firm to the extent such conduct would constitute prohibited representation before the City Department of Revenue. Section 1103(g) of the Ethics Act would not restrict you from engaging in representation before other City Departments, Boards, Commissions and the like, City Council, independently elected row offices, or City-related organizations such as the Philadelphia Industrial Development Corporation subject to the condition that in performing such activity(ies), you would not engage in prohibited representation before the City Department of Revenue 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: In the former capacity as the Special Assistant to the Revenue Commissioner 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 became a “former public employee” subject to Section 1103(g) of the Ethics Act. The governmental body with which you are deemed to have been associated upon Mannino, 13-565 September 12, 2013 Page 5 termination of your employment with the City is the City Department of Revenue in its entirety. 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 the City Department of Revenue. 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