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HomeMy WebLinkAbout15-564 Ragland ADVICE OF COUNSEL November 3, 2015 JoAnne Ragland th 517 N. 65 Street Philadelphia, PA 19151-4005 15-564 Dear Ms. Ragland: This responds to your letters dated August 31, 2015, and September 15, 2015, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”). Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an individual employed by the City of Philadelphia (“City”) as a Social Work Supervisor with the City Department of Human Services with regard to working--either prior or subsequent to retirement from City employment--as a trainer for a private provider that may have contract(s) with the City. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. You are currently employed as a Social Work Supervisor with the City Department of Human Services. You have submitted a copy of job class specification 5A08 for your position as a Social Work Supervisor, which document is incorporated herein by reference. You state that your last day of work with the City was July 1, 2015. You further state that your official retirement date from City employment will be December 24, 2015. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to being employed as a trainer for a private provider (the “Private Provider”) that may have contract(s) with the City. It is noted that the submitted facts do not indicate whether your proposed work with the Private Provider would commence prior or subsequent to your retirement from City employment. 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 Ragland, 15-564 November 3, 2015 Page 2 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. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from engaging in conduct that constitutes a conflict of interest: § 1103. Restricted activities (a)Conflict of interest.-- No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act does not prohibit public officials/public employees from having outside business activities or employment. However, subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict” or “conflict of interest,” 65 Pa.C.S. § 1102, a public official/public employee may not use the authority of his public position--or confidential information obtained by being in that position--for Ragland, 15-564 November 3, 2015 Page 3 the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89-011. In each instance of a conflict of interest, the public official/public employee would be required to abstain from participation. The abstention requirement would extend to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. As a Social Work Supervisor with the City Department of Human Services, 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 job class specification 5A08, 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. Upon termination of your 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,” “governmental body,” 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." 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. Ragland, 15-564 November 3, 2015 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. Ragland, 15-564 November 3, 2015 Page 5 The governmental body with which you would be deemed to have been associated upon termination of your employment with the City would be the City Department of Human Services in its entirety. Therefore, for one year following December 24, 2015--the date of your official retirement from City employment--Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before the City Department of Human Services. In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. The Ethics Act would not prohibit you, in your private capacity, from working as a trainer for the Private Provider while you are employed as a Social Work Supervisor with the City Department of Human Services. However, if you would accept employment with the Private Provider, the Private Provider would be considered a business with which you are associated in your capacity as an employee, and, pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in your official capacity as a Social Work Supervisor with the City Department of Human Services in matter(s) that would result in a private pecuniary benefit for you or the Private Provider unless one of the statutory exclusions to the definition of “conflict” or “conflict of interest” as set forth in the Ethics Act, 65 Pa.C.S. § 1102, would be applicable. You are further advised that Section 1103(g) of the Ethics Act would not prohibit you from accepting employment as a trainer for the Private Provider. However, during the one-year period of applicability of Section 1103(g) of the Ethics Act, Section 1103(g) would prohibit you from performing any job duty(ies) that would involve prohibited representation before the City Department of Human Services as delineated above. 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. Specifically not addressed herein is the applicability of the Philadelphia Home Rule Charter or Chapter 20-600 of The Philadelphia Code. Conclusion: As a Social Work Supervisor with the City of Philadelphia (“City”) Department of Human Services, 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. The Ethics Act would not prohibit you, in your private capacity, from working as a trainer for a private provider (the “Private Provider”) that may have contract(s) with the City while you are employed as a Social Work Supervisor with the City Department of Human Services. However, if you would accept employment with the Private Provider, the Private Provider would be considered a business with which you are associated in your capacity as an employee, and, pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in your official capacity as a Social Work Supervisor with the City Department of Human Services in matter(s) that would result in a private pecuniary benefit for you or the Private Provider unless one of the statutory exclusions to the definition of “conflict” or “conflict of interest” as set forth in the Ethics Act, 65 Pa.C.S. § 1102, would be applicable. Upon termination of your employment with the City, you would become a “former public employee” subject to Section 1103(g) of the Ethics Act. The former governmental body would be the City Department of Human Services in its entirety. For one year following December 24, 2015--the date of your official retirement from City employment--Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before the City Department of Human Services. The restrictions as to representation outlined above must be followed. Section 1103(g) of the Ethics Act would not prohibit you from accepting employment as a trainer for the Private Provider. However, during the one-year period of applicability of Section 1103(g) of the Ethics Ragland, 15-564 November 3, 2015 Page 6 Act, Section 1103(g) would prohibit you from performing any job duty(ies) that would involve prohibited representation before the City Department of Human Services as delineated above. 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