HomeMy WebLinkAbout16-539 Siegel
ADVICE OF COUNSEL
June 27, 2016
Samuel D. Siegel
1630 Latona Street
Philadelphia, PA 19146
16-539
Dear Mr. Siegel:
This responds to your letter dated April 26, 2016, and your email of June 27,
2016, by which you requested an advisory from the Pennsylvania State Ethics
Commission (“Commission”).
Issue:
Whether, as a Policy Analyst for the Philadelphia Industrial Development
Corporation/City of Philadelphia Department of Commerce (“PIDC/City Department of
Commerce”), 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., such that upon termination
of your employment with the PIDC/City Department of Commerce, the restrictions of
Section 1103(g) of the Ethics Act would be applicable to you.
Facts:
You request an advisory from the Commission based upon submitted
facts that may be fairly summarized as follows.
At the time that you submitted your inquiry, you were employed as a Policy
Analyst with the PIDC/City Department of Commerce. You have submitted a copy of a
job description (the “Job Description”) for your position as a Policy Analyst with the
PIDC/City Department of Commerce, which document is incorporated herein by
reference.
The Job Description provides, in pertinent part, as follows:
The Policy Analyst is a management support role applying analysis,
strategic planning and project management skills to various assignments
with oversight from the Senior Director, Business Attraction & Retention
and the Senior Deputy Director of Commerce.
The Policy Analyst is responsible for a portfolio of specific projects,
including:
Development and maintenance of the departmental case
management database, built in Intuit Quickbase;
Support business attraction and retention efforts through business
lead research and project fulfillment;
Tracking and summarizing for publication a variety of data relating
to the health of Philadelphia’s economy;
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June 27, 2016
Page 2
Research implications of proposed local/state/federal legislation;
work with senior management to formulate position and write
testimony as appropriate;
Tracking and analysis of departmental performance metrics to
guide program and investment decisions;
Preparing presentation materials as needed;
Provide project-based support as needed through general
research, writing assignments, or other activities; and
Other duties as assigned.
Typical Examples of Work
Perform the appropriate recordkeeping, database management,
GIS services and PowerPoint presentation preparation to support
Department of Commerce management.
Research, analyze and report on various best practices for
applicability to Department of Commerce economic development
priorities.
Work collaboratively with colleagues across various City of
Philadelphia departments to produce policy documents for
publication.
Project identification and program management of the Department
of Commerce Capital Program and other capital project requests
such as Commonwealth RACP.
Produce analytic tools to influence decision-making, such as
creating maps to analyze census tract compliance of departmental
contracts.
Draft talking points, policy guidelines/statements and other written
work product as needed.
Job Description, Policy Analyst.
You stated that as a Policy Analyst for the PIDC/City Department of Commerce:
(1) your role was supportive in nature; (2) you were not in a decision-making role; (3)
your role did not include making policy or other recommendations to decision-makers;
(4) your research was supportive in nature; and (5) your project management role
extended only to managing research projects. You stated that as a Policy Analyst, you
had no interaction with business improvement districts or other nonprofits that secure
contracts with the City Department of Commerce. You further stated that you had no
formal relationship with the Philadelphia City Planning Commission.
You stated that effective May 4, 2016, you would be resigning from your
employment as a Policy Analyst with the PIDC/City Department of Commerce in order
to take a position as the Executive Director of the Mayfair Business Improvement
District (the “District”) in northeast Philadelphia. You stated that in your new position,
you would be interacting with representatives from the City Department of Commerce
and assisting District business owners taking advantage of grant programs of the City
Department of Commerce.
Based upon the above submitted facts, you seek guidance as to whether, as a
Policy Analyst for the PIDC/City Department of Commerce, you would be considered a
“public employee” as that term is defined in the Ethics Act, such that upon termination of
employment with the PIDC/City Department of Commerce, you would be subject to the
post-employment restrictions of Section 1103(g) of the Ethics Act.
You pose the following additional questions to be addressed if you would be
subject to the post-employment restrictions of Section 1103(g) of the Ethics Act:
Siegel, 16-539
June 27, 2016
Page 3
(1) Whether you would be permitted to interact directly with the City
Department of Commerce regarding matters that would not affect the
awarding of grants or contracts to the District or its stakeholders; and
(2) Whether you would be prohibited in any way from interacting with the
Philadelphia City Planning Commission.
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 responding to your inquiry, the initial question to be addressed is whether, as a
Policy Analyst with the PIDC/City Department of Commerce, 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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June 27, 2016
Page 4
(C) The individual is the supervisor of a highest level
field office.
(D) The individual has the authority to make final
decisions.
(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.
(I) 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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June 27, 2016
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 relevant to your inquiry and 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 person’s 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.
In applying the definition of "public employee" and the related regulatory criteria
to the submitted facts as to the duties of your position as a Policy Analyst with the
PIDC/City Department of Commerce, the necessary conclusion is that in such position,
you would not be considered a "public employee" as that term is defined in the Ethics
Act; specifically, you were not responsible for taking or recommending official action of a
non-ministerial nature with regard to any of the five categories set forth in the Ethics
Act’s definition of the term “public employee.”
The post-employment restrictions of Section 1103(g) of the Ethics Act only apply
to former public officials/public employees:
§ 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).
Because the duties and responsibilities of your position as a Policy Analyst with
the PIDC/City Department of Commerce would not bring you within the definition of
“public employee” as set forth in the Ethics Act, Section 1103(g) of the Ethics Act would
not be applicable to you upon termination of your employment in such position.
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June 27, 2016
Page 6
Therefore, your additional questions regarding Section 1103(g) of the Ethics Act need
not be addressed.
The only provision of the Ethics Act that applies to you is Section 1103(b), which
applies to everyone. For your information, 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
anything of monetary value 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:
Based upon the submitted facts, as a Policy Analyst with the
Philadelphia Industrial Development Corporation/City of Philadelphia Department of
Commerce (“PIDC/City Department of Commerce”), you would not be considered a
“public employee” as that term is defined by the Public Official and Employee Ethics Act
("Ethics Act”), 65 Pa.C.S. § 1101 et seq. Consequently, Section 1103(g) of the Ethics
Act would not be applicable to you upon termination of your employment as a Policy
Analyst with the PIDC/City Department of Commerce. Section 1103(b) of the Ethics Act
applies to everyone. 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