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HomeMy WebLinkAbout17-511 Clancyr _04 .j IM STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL March 1, 2017 To the Requester: Mr. Hugh Patrick Clancy Dear Mr. Clancy: 17 -611 This responds to your email of December 21, 2016, and your letter dated January 5, 2011 , b which you requested an advisory from the Pennsylvania State Ethics Commission "Commission "). Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 �C-S. 1101 et seq., would impose restrictions upon employment of a Special Advisor to the Secretary of Human Services for the Commonwealth of Pennsylvania following termination of employment with the Pennsylvania Department of Human Services. Facts: You request an advisory from the Commission regarding the post - empl yment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. At the time that you submitted your inquiry, you were employed with the Pennsylvania Department of Human Services ( "Department of Human Services ") as a Special Advisor to the Secretary of Human Services for the Commonwealth of Pennsylvania. You have submitted a copy of your official Commonwealth position description, which -document is incorporated herein.by reference. You stated that you would be resigning from your Commonwealth employment as of January 13, 2017, and that you would be taking a position as the President/Chief Executive Officer of a quasi- public organization named "Philadelphia Works, Inc." ( "Philadelphia Works "). The President/Chief Executive Officer of Philadelphia Works is appointed by the Mayor of the City of Philadelphia ( "City "). You stated that Philadelphia Works is designated as the local Workforce Development Board for the City. The aforesaid designation enables Philadelphia Works to be the only entity in the City to be awarded federal Workforce Investment and Opportunity Act funds from the Pennsylvania Department of Labor and Industry and federal /state TANF Employment and Training funds administered by the Department of Human Services. Philadelphia Works is the only vendor in the City that is a recipient of Department of Human Services funds for the Employment and Retention Network (EARN) program. FAX: (717) 787 -0806 • Web Site: www.ethics.statepa.us • e -mail: ethicsQstatepa.us C�anc , 17 -511 T171arch 2017 Page 2 You stated that in your role as President/Chief Executive Officer of Philadelphia Works, you will need to interact with staff of the Department of Human Services in order to ensure that services are being delivered appropriately to TANF customers. You further stated that such ongoing communication is vital for both parties. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you during the first year following termination of your Commonwealth employment. In particular, you ask whether you would be permitted to communicate with staff of the Department of Human Services in your role as President/Chief Executive Officer of Philadelphia Works. Discussion: Pursuant to Sections 1107 (10) and 1107(11) of the Ethics Act, 65 F�a.0 S. M 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 a Special Advisor to the Secretary of Human Services, you would be considered a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. Consequently, upon termination of Commonwealth employment, 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 erson, 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 May. 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: § 7102. 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. Clancy, 17 -511 arc 1, 2017 Page 3 "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 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. AbramsANebster, 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 Clancy, 17 -511 March 1, 2017 Page 4 control but extends to the entire body. See, Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion 90-006; harp, ion The governmental body with which you would be deemed to have been associated upon termination of Commonwealth employment would be the Department of Human Services in its entirety. Therefore, for the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a `person" before the Department of Human Services. You are advised that during the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would prohibit you from performing any job duty(ies) for your new employer, Philadelphia Works, that would involve prohibited representation before the Department of Human Services as set forth above. You are further advised that Section 1103(g) of the Ethics Act would prohibit you from communicating with staff of the Department of Human Services in your role as President/Chief Executive Officer of Philadelphia Works as such would necessarily involve prohibited representation before the Department of Human Services. 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 be' n 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 off icial/p ublic 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. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: As a Special Advisor to the Secretary of Human Services for the Commonwealth of Pennsylvania, you would be considered a "public employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et se q., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et se Upon termination of your Commonwealth employment, you would become a 'firmer public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be the Pennsylvania Department of Human Services ( "Department of Human Services ") in its entirety. For the first year following termination of your Commonwealth employment, Section 1103(8) of the Ethics Act would apply and restrict "representation" of a 'person" before the Department of Human Services. The restrictions as to representation outlined above must be followed. During the first year following termination of your Commonwealth employment, Section 1103(8) of the Ethics Act would prohibit you from performing any fob duty(ies) for your new employer, Philadelphia Works, Inc., that would involve prohibited representation before the Department of Human Services as set forth above. Section 1103(8) of the Ethics Act would prohibit you from communicating with staff of the Department of Human Services in your role as President/Chief Executive Officer of Philadelphia Works, Inc. as such would necessarily involve prohibited representation before the Department of Human CCllanic , 17 -511 March 1, 2017 Page 5 Services. 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 be ore 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 ac�tualll 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