HomeMy WebLinkAbout17-006 ClancySTATE ETHICS COMMISSION
309 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
OPINION OF THE COMMISSION
Before: Nicholas A. Colafella, Chair
Mark R. Corrigan, Vice Chair
Roger Nick
Maria Feeleyy
Melanie DePalma
DATE DECIDED: 618117
DATE MAILED: 6130117
17 -0d6
To Counsel for the Appellant:
Ms. Sharon Riley, Esquire
General Counsel & Compliance Officer
Philadelphia Works, Inc.
Dear Ms. Riley:
This Opinion is issued in response to the appeal of Advice of Counsel 17 -511, which
Advice was issued on March 1, 2017.
1. ISSUE:
Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §
1101 et spec ., 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.
11, FACTUAL BASIS FOR DETERMINATION:
You represent Hugh Patrick Clancy ( "Mr. Clancy ") as to his appeal of Clancy, Advice
of Counsel 17 -511, which was issued to Mr. Clancy on March 1, 2017.
Mr. Clancy's initial advisory request presented facts that were summarized in the
Advice of Counsel 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
P.O. BOX 1 1470, HARRISBURG, PA M08-1470 • 717-783-1610 • 1-800-932-0936 • www.ethics.state.pa.us
Riley /Clancy, 17 -006
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Page 2
document is incorporated herein by reference.
You stated that you would be resiggning 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.
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.
Clam, Advice of Counsel 17 -511, at 1 -2.
In responding to Mr. Clancy's advisory request, Advice of Counsel 17 -511
determined that as a Special Advisor to the Secretary of Human Services, Mr. Clancy
would be considered a "public employee" subJ'ect to the Ethics Act and the Regulations of
this Commission, 51 Pa. Code § 11.1 et se .The Advice of Counsel determined that upon
termination of Commonwealth employment, Mr. Clancy would become a "former public
employee" subject to Section 1103(g) of the Ethics Act. The Advice further determined that
Mr. Clancy's former governmental body would be the Department of Human Services in its
entirety. The Advice set forth the restrictions of Section 1103(g) of the Ethics Act as
deemed applicable to Mr. Clancy.
Advice of Counsel 17 -511 concluded that during the first year following termination
of Mr. Clancy's Commonwealth employment, Section 1103(g) of the Ethics Act would
prohibit Mr. Clancy from performing any job duty(ies) for his new employer, Philadelphia
Works, that would involve prohibited representation before the Department of Human
Services. The Advice further concluded that Section 1103(8) of the Ethics Act would
prohibit Mr. Clancy from communicating with staff of the Department of Human Services in
his role as President/Chief Executive Officer of Philadelphia Works as such would
necessarily involve prohibited representation before the Department of Human Services.
By letter dated March 22, 2017, Mr. Clancy, who is now serving as President/Chief
Rile /Clanc 17 -006
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Page 3
Executive Officer of Philadelphia Works, appealed Advice of Counsel 17 -511. Mr. Clancy's
appeal letter did not state any particular basis for the appeal, but merely exercised the right
to appeal the Advice of Counsel. Mr. Clancy's appeal letter also sought supplemental
advice based on additional facts not previously addressed in the initial advisory request,
including the specific nature of his job description as President/Chief Executive Officer of
Philadelphia Works, detailed directives and obligations imposed upon Philadelphia Works
through a Partnership Agreement ("Partnership Agreement ") dated March 4, 2016,
between the City Mayor and Philadelphia Works, and the requirements set forth in the
Bylaws of Philadelphia Works.
By letter dated May 11, 2017, you were notified of the date, time and location of the
public meeting at which Mr. Clancy's appeal /request would be considered.
On May 31, 2017, this Commission received your Brief, in which you claim there is a
need for interaction between Mr. Clancy as President/Chief Executive Officer of
Philadelphia Works and the Department of Human Services. You state that in order to
continue to receive funding from the Department of Human Services and implement
programs that are consistent with the goals of the Department of Human Services and the
City, Philadelphia Works must follow specific compliance obligations regarding
programmatic functions and expenditures and payments, while meeting detailed
performance objectives. You state that this requires continuous communication with the
Department of Human Services. You argue that itwould be impracticable if not impossible
for Mr. Clancy to have no communication with the entire body of the Department of Human
Services.
You argue that barring Mr. Clancy from representing the City before the Department
of Human Services would be detrimental to the overall workforce development system in
the City, and that such a restriction would be unduly burdensome and contrary to the
fiduciary responsibility of Philadelphia Works to the City and the Commonwealth of
Pennsylvania. In light of what you describe as a unique relationship between Philadelphia
Works and the Department of Human Services in the Philadelphia workforce area, you
request that the definition of "representation" be redefined to align with Mr. Clancyy's
position. Specifically, you ask that the definition of "represent" be further defined in tF�is
circumstance to exclude matters conducted in the ordinary course of business. You state
that to allow Mr. Clancy to engage in normal business activities that are required functions
of the role of President/Chief Executive Officer and are required functions of Philadelphia
Works' fiduciary responsibilities would allow the City's workforce development system to
function without disruption.
On June 1, 2017, you submitted a letter ( "Support Letter ") from the Office of the City
Mayor, dated May 26, 2017, offered in support for Mr. Clancy's appeal of Advice of
Counsel 17 -511. The Support Letter asserts that Mr. Clancy serves a critical role on behalf
of the City and that it is essential he be able to interact with the Department of Human
Services as an integral part of the Mayor's anti - poverty strategy. The Support Letter states
that all funding from the Department of Human Services to Philadelphia Works is based on
federal and state statutory funding formulas, such that there is no discretionary funding
awarded by the Department of Human Services to Philadelphia Works, and Mr. Clancy's
interactions will not result in a financial gain to Philadelphia Works or a financial loss to any
other Workforce Board in the Commonwealth. Additionally, the Support Letter asserts that
both Mr. Clancy's job description as President/Chief Executive Officer of Philadelphia
Works and the statutorily mandated Partnership Agreement between the City Mayor and
Philadelphia Works require that the President/Chief Executive Officer of Philadelphia
Works be able to communicate with the Deppartment of Human Services. Finally, the
Support Letter asserts that barring the Pres%nt/Chief Executive Officer of Philadelphia
Works from all contact with the Department of Human Services for one year may have a
deleterious effect on the ability of the Commonwealth of Pennsylvania to remain in
compliance with federal requirements.
At the public meeting on June 8, 2017, you and Mr. Clancy appeared and offered
RRiley /Clancy 17 -006
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Page 4
commentary, which included the following points.
Mr. Clancy stated that he was not aware of the restrictions of Section 1103(g) of the
Ethics Act when he accepted the position with Philadelphia Works. Mr. Clancy contended
that it is critical that he be able to communicate with the Department of Human Services,
but he acknowledged the potential for having another individual at Philadelphia Works
handle such communications.
You asserted that it would be contrary to Mr. Clancy`s job description and the
Bylaws of Philadelphia Works for Mr. Clancy to not be able to have direct contact with the
Department of Human Services. You argued that Mr. Clancy`s situation is unique and
distinct because Philadelphia Works is the only vendor of the Department of Human
Services for the services provided by Philadelphia Works. You further argued that because
there is no discretionary funding involved, there is no potential for improper conduct.
Ill. DISCUSSION:
It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act,
65 Pa.C.S. §§ 1107(10), 01), 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, this 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.
We initially determine, as did Advice of Counsel 17 -511, that as a Special Advisor to
the Secretary of Human Services, Mr. Clancy would be considered a public employee
subject to the Ethics Act and the Regulations of this Commission.
It necessarily follows that upon termination of emPioyment as a Special Advisor to
the Secretary of Human Services, Mr. Clancy became a `former public em toyee" subject
to Section 1103(g) of the Ethics Act. As noted in Advice of Counsel 17 -511, Section
1103(g) of the Ethics Act provides as follows:
§ 1103. Restricted activities
(g) Former official or employee. - -No former public
official or public employee shall represent a persojn, with
promised or actual compensation, on any matter befoore the
overnmental 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.
Riley/Clancy, , 17 -006
June 30, 2017
Page 5
"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 1C�]ublic officlial or employee is or
L,nr.
,,n ploy nr PIPr.fp ind Siffidivlslons and offices
within that dovernmental body.
65 Pa.C.S. § 1102.
The term "person" is defined to include, inter alia, corporations and other businesses
as well as governmental bodies.
The term "represent" is broadly defined to prohibit acting on behalf of any person in
any activity and not merely those activities specifically included within the definition to
exemplify its meaning. S_ hay, Opinion 91 -012.
We note that Advice of Counsel 17 -511 accurately apprised Mr. Clancy of the nature
of the Section 1103(g) restrictions and of certain important Commission precedents
pertaining to that Section. Accordingly, we adopt and incorporate herein by reference the
Advice's recitation of the Section 1103(g) restrictions.
We agree with the Advice of Counsel that Mr. Clancy's former governmental body is
the Department of Human Services in its entirety. The Advice of Counsel correctly
concluded that for the first ear following termination of Mr. Clancy's Commonwealth
employment, Section 1103(jof the Ethics Act would apply and restrict "representation" of
a "person" before the Department of Human Services.
We agree with Advice of Counsel 17 -511 that Section 1103(g) of the Ethics Act
would prohibit Mr. Clancy from communicating with staff of the Department of Human
Services in his role as President/Chief Executive Officer of Philadelphia Works. It is clear
that by engaging in such communication, Mr. Clancy would be acting on behalf of, and
therefore "representing," Philadelphia Works before the Department of Human Services in
contravention of Section 1103(g) of the Ethics Act.
The restrictions and prohibitions of Section 11 03( ) of the Ethics Act are legislatively
mandated. This Commission has no discretion to redefine statutorily defined terms such
as the term "represent." Likewise, this Commission has no discretion to grant exceptions
to the applicability of Section 1103(g). See, ea.., Ziegler, Opinion 98 -001; Long, Opinion
97 -010.
Based upon the above analysis, we deny the appeal and affirm Clanc , Advice of
Counsel 17 -511.
Lastly, the propriety of the proposed course of conduct has only been addressed
under the Ethics Act.
IV. CONCLUSION:
As a Special Advisor to the Secretary of Human Services for the Commonwealth of
Pennsylvania, Hugh Patrick Clancy ( "Mr. Clancy ") 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 Commonwealth employment, Mr. Clancy became a ' former public
employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is
the Pennsylvania Department of Human Services ( "Department of Human Services ") in its
entirety. For the first year following termination of Mr. Clancy's Commonwealth
employment, Section 1103(g) of the Ethics Act would apply and restrict "representation" of
a "person" before the Department of Human Services. Section 1103(g) of the Ethics Act
�n�Rile IClanc , 17 -006
17
Page 6
would prohibit Mr. Clancy from communicating with staff of the Department of Human
Services in his role as President/Chief Executive Officer of Philadelphia Works, Inc. as
such would necessarily involve prohibited representation before the Department of Human
Services.
The appeal is denied. Advice of Counsel 17 -511 is affirmed.
The propriety of the proposed conduct has only been addressed under the Ethics
Act.
Pursuant to Section 1107(10), the person who acts in good faith on this Opinion
issued to him shall not be subject to criminal or civil penalties for so acting provided the
material facts are as stated in the request.
This letter is a public record and will be made available as such.
By the Commission,
Nic o 4sYC ola feIIa
Chair