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HomeMy WebLinkAbout17-558 Roebuckmow, 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 August 16, 2017 To the Requester: Ms. Katrina Pratt Roebuck 17 -558 Dear Ms. Roebuck: This responds to your letter dated July 17, 2017, 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 Fa TS. § 1101 et se q., would impose restrictions upon employment of the Deputy Executive Director of the City of Philadelphia ( "City ") Mayor's Office of Community Empowerment and Opportunity following termination of employment with the Mayor's Office of Community Empowerment and Opportunity. Facts You request an advisory from the Commission regarding the post - emp oyment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. You are currently employed as the Deputy Executive Director of the Mayor's Office of Community Empowerment and Oppportunity. You have submitted copies of a job posting (the "Job Posting ") and a job tescri tion (the "Job Description ") for your position with the Mayor's Office of Community Empowerment and Opportunity, which documents are incorporated herein by reference. It is noted that the Job Posting and the Job Description list the title of your aforesaid position as Deputy Director of Operations. You are considering leaving your employment with the Mayor's Office of Community Empowerment and Opportunity and obtaining employment as the Long - Term Services and Support Housing Initiatives Director for AmeriHealth Caritas. You state that you have not worked in any City office that has engaged in any contracts with AmeriHealth Caritas. You further state that you have not made any decisions or had any influence in matters related to AmeriHealth Caritas. Based upon the above submitted facts, you ask whether the Ethics Act would impose any restrictions upon you with regard to representing AmeriHealth Caritas before the City during the first year following termination of your employment with the Mayor's Office of Community Empowerment and Opportunity. 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 FAX: (717) 787 -0806 0 Web Site: www. ethics. state. Pa.. us • e -mail: ethicsCa?state.pa.us Roebuck, 17 -558 August 16, 2017 Page 2 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 the Deputy Executive Director of the Mayor's Office of Community Empowerment and Opportunity, 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. J 1102; 51 Pa. Code § 11.1. This conclusion. is based upon the Job Posting and the Job. Description, which when reviewed on an objective basis, indicate 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 Mayor's Office of Community Empowerment and Opportunity, 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 ody. 65 Pa.C.S. § 1103(g) (Emphasis added). The terms "re resent," "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 Roebuck, 17 -558 August 16, 2017 Page 3 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. 05 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 officiallpublic 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. Popoyich, 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(8) 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 byy 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 ap earance before his former governmental body. Once again, however, the activity in his 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 officiallpublic 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 Roebuck 17 -558 August 16, 2017 Page 4 control but extends to the entire body. See, Le islative Journal of House, 1989 Session, No. 15 at 290, 291; Siro!!i, Opinion 90 -006; ham, pinion 90- 009 -R. The governmental body with which you would be deemed to have been associated upon termination of your employment with the Mayor's Office of Community Empowerment and Opportunity would be the Mayor's Office of Community Empowerment and Opportunity in its entirety. Therefore, for the first year following termination of your employment with the Mayor's Office of Community Empowerment and Opportunity, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" before the Mayor's Office of Community Empowerment and Opportunity. In response to your specific question, you are advised that during the first year following termination of your employment with the Mayor's Office of Community Empowerment and Opportunity, Section 1103 (8) of the Ethics Act would prohibit you from representing AmeriHealth Caritas before the Mayors Office of Community Empowerment and Oppportunity. Section 1103(g) of the Ethics Act would not prohibit you from representing AmeriHealth Caritas before City entity(ies) other than the Mayor's Office of Community Empowerment and Opportunity as long as in performing such activity(ies), you would not engage in prohibited representation before the Mayor's Office of Community Empowerment and Opportunity 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 n the public position, for a private pecuniary benefit) 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 iciallpublic 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: As the Deputy Executive Director of the City of Philadelphia Mayor's Office of Community Empowerment and Opportunity, you would be considered a "public employee" subject to the Public Official and Employee Ethics Act (`.Ethics Act , 65 Pa.C.S. sec ., § 1 101 et and the Regulations of the State Ethics Commission, 51 la. Code §'11.1 et se . Upon termination of your employment with the Mayor's Office of Community Empowerment and Opportunity, you would become a "former public employee° subJ'ect to Section 1103(g) o the Ethics Act. The former governmental body would be the Mayor's Office of Community Empowerment and Opportunity in its entirety. For the first year following termination of your employment with the Mayor's Office of Community Empowerment and Opportunity, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a °person" before the Mayor's Office of Community Empowerment and Opportunity. 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 Roebuck, 17 -558 August 16, 2017 Page 5 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 off' this vice ursuant to 51 Pa. Code. § 13.2fh). The appeal may be received p 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, obin M. Hittie Chief Counsel