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HomeMy WebLinkAbout17-585 SchillPHONE: 717- 783 -1610 TOLL FREE: 1 -800- 932 -0936 To the Requester: Mr. O. Karl Schill Dear Mr. Schill: 4 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120 -0400 ADVICE OF COUNSEL December 20, 2017 FACSIMILE: 717- 787 -0806 WEBSITE: www.ethics.pa.aov 17 -585 This responds to your letter dated November 22, 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 a G- F—S. 1101 et se g., would impose restrictions upon employment of an Engineer's Representative fV Tollowing termination of employment with the City of Harrisburg ( "City ") Office of the City Engineer. Facts: You request an advisory from the Commission regarding the post - empfayment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. On January 31, 2018, you will retire from your employment as an Engineer's Representative IV with the Office of the City Engineer. You have submitted a copy of a fob description (the "Job Description ") for your position with the Office of the City Engineer, which document is incorporated herein by reference. You state that the City has expressed a desire for you to enter into a consulting agreement (the "Consulting Agreement ") to work on an as- needed basis under the direction of the City Engineer. Under the Consulting Agreement, you would perform certain duties pertaining to Geographic Information System (GIS) mapping for the City and public use. Your duties would be limited to building and maintaining computer permitting databases and would not include any of the duties listed within the Job Description. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you with regard to working as a consultant under the Consulting Agreement. It is administratively noted that both the Job Description and Section 2 -301.1 of the City's Administrative Code refer to a department of "general government." The latter lists under "general government" various offices, specifically, the Office of City Council, Office of the Mayor, Office of the City Controller, Office of the City Treasurer, Office of the City Solicitor, Office of the City Engineer, Harrisburg Human Relations Commission, and Mayor's Office of Equal Economic Opportunity. In responding to your specific Schill, 17 -585 )member 20, 2017 Page 2 question, it is not necessary to resolve the factual issue of whether the aforesaid offices are actually housed within a single "department" or merely perform functions that fall within the substantive category of general government. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of e 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. As an Engineer's Representative IV for the Office of the City Engineer, 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 the Job Description, 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. Consequently, upon termination of your employment with the Office of the City Engineer, you would become a "former public employee" subject to Section 1103(8) 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 re rp esent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year atter he leaves that body. 65 Pa.C.S. § 1103(g) (Emphasis added). The terms "re resent," "person," governmental body," and " overnmental 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. Schill, 17 -585 ecember 20, 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." 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. "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 officia Ib ii c employee himself, Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur, pinion 95-007. The term "represent" is also broad) defined to prohibit acting on behalf of any person in anv 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. During the one --year period of applicability of Section 1103(g) of the Ethics Act, Section 1103 {gg) generally would prohibit a former public official /public employee from contracting with the former governmental body see, Shaub, Order 1242; Confidential Opinion, 97 -008; Confidential Opinion, 93 -005) or providing consulting services constituting representation before the former governmental body (s Cl ee, la comb Opinion 14_004; Schrempf, Opinion 13 -004). 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 Schill, 17 -585 December 20, 2017 Page 4 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 reggard to representation before his former governmental body. The former public offlciallpublic 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. The governmental body with which you would be deemed to have been associated upon termination of your employment with the Office of the City Engineer (also referred to herein as "your former governmental body ") would include, at a minimum, the Office of the City Engineer in its entirety. (If the Office of the City Engineer is housed within a larger "department," your former governmental body could be such department in its entirety.) You are advised that, for the first year following termination of your employment with the Office of the City Engineer, Section I I03(g) of the Ethics Act would apply and restrict "representation" of a "person " — including but not limited to yourself as a consultant — before your former governmental body. During the first year following termination of your employment with the Office of the City Engineer, Section 1103(g) of the Ethics Act would prohibit you from entering into a consulting contract with your former governmental body and /or providing consultant services to your former governmental body with promised or actual compensation, as such activities would constitute prohibited representation of a person—yourself—before your former governmental body, Cf., Shaub, supra; Clay comb, supra; Schremp , s_ upra; Confidential O. pinion, 97 -008; Conidenti— a–Mpiniori, 93 -005. You are further advised that under the submitted facts, it would be impossible for you to avoid running afoul of Section 1103�g) of the Ethics Act if you would, perform services as a consultant under the Consul ing Agreement. Because you would be working under the direction of the City Engineer, such work would necessarily involve prohibited representation before your former governmental body. 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 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 110-3(b) and 1103(c) of the Ethics Act provide in part that no person shall offer or give to a public official /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understandin 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 Schill, 17 -585 TTecember 20, 2017 Page 5 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 that: (1) on January 31, 2018, you will retire from your employment as an Engineer's Representative IV with the City of Harrisburg ( "City ") Office of the City Engineer; (2) the City has expressed a desire for you to enter into a consulting agreement (the "Consulting Agreement ") to work. on an as- needed basis under the direction of the City Engineer; (3) under the Consulting Agreement, you would perform certain .duties pertainin to Geographic Information System (GIS) mapping for the City and public use; and (4? your duties would be limited to buiIding and maintaining computer permitting databases and would not include any of the duties listed within the job description for your position with the Office of the City Engineer, you are advised as follows. As an Engineer's Representative IV for the Office of the City Engineer, you would be considered a "public empplo ee" subject to the Public Official and Employee Ethics Act ("Ethics Act "), 65 Pa. C.S. '1101 et se q., and the Regulations of the Sate Ethics Commission, 51 Pa. Code § 11.1 q s�eq^ Upon termination of your employment with the Office of the City Engineer, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The governmental body with which you would be deemed to have been associated upon termination of your employment with the Office of the City Engineer (also referred to herein as "your former governmental body ") would include, at a minimum, the Office of the City Engineer in its entirety. (If the Office of the City Engineer is housed within a larger "department," your former governmental body could be such department in its entirety.) For the first year following termination of your employment with the Office of the City Engineer, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person " -- including but not limited to yourself as a consultant— before your former governmental body. During the first year following termination of your employment with the Office of the City Engineer, Section 1103(g) of the Ethics Act would prohibit you from entering into a consulting contract with your former governmental body and/or providing consultant services to your former governmental body with promised or actual compensation, as such activities would constitute prohibited representation of a person -- yourself— before your former governmental body. Under the submitted facts, it would be impossible for you to avoid running afoul of Section 1103(g) of the Ethics Act if you would perform services as a consultant under the Consulting Agreement. Because you would be working under the direction of the City Engineer, such work would necessarily involve prohibited representation before your former governmental body. 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 1907(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 an yy 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. Schill, 17 -585 M—c&nber 20, 2017 Page 6 Any such appeal must be in writing and must be actually received at the Commission within thing (30) days of the date o��i Advice pursuant to 59 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 (797.787 0806. Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. SincqTely, Robin M. Hittie Chief Counsel