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HomeMy WebLinkAbout19-517 FinkPHONE: 717- 783 -1610 TOLL FREE: 1 -800- 932 -0936 To the Requester: Mr. Michael E. Fink Dear Mr. Fink: ADVICE OF COUNSEL April 30, 2019 FACSIMILE: 717- 787 -0806 WEBSITE: www.ethics.pa.gov 19 -517 This responds to your submission received March 1, 2019, 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 Pa.G'S. § 1101 et seg., would impose restrictions upon employment of the Chief Code Engineer for the City of Philadelphia ( "Cit ") Department of Licenses and Inspections following termination of employment with the City Department of Licenses and Inspections. 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. On March 1, 2019, you retired from your employment as the Chief Code Engineer for the City Department of Licenses and Inspections, in which capacity you served as the Chief Code Official for the City. You have submitted a copy of Job Class Specification 3C12 for your former position as Chief Code Engineer for the City Department of Licenses and Inspections, which document is incorporated herein by reference. The City has a vacancy on the Board of Building Standards. It is administratively noted that per the Philadelphia Home Rule Charter (Article III, § 3 -100(% the Board of Building Standards is established within the City Department of Licenses and Inspections. The Board of Building Standards is composed of four appointed Members and the Commissioner of Licenses and Inspections. Members of the Board of Building Standards are compensated $60.00 for each meeting attended subject to certain limitations. The narrow question that you have posed is whether Section 11030 of the Ethics Act would impose restrictions upon you with regard to being appointed as a Member of the Board of Building Standards. 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 Fink, 19 -517 April 30, 2019 Page 2 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 disc osed all of the material facts. It is further initially noted that this Advice is limited to addressing the narrow question posed. In the former capacity as the Chief Code Engineer for the City Department of Licenses and Inspections, 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 Job Class Specification 3C12, which when reviewed on an obf'ective 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 City Department of Licenses and Inspections, you became 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 aovernmental bodv 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. Fink, 19 -517 Apr1 30, 2019 Page 3 "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. 68 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 officiaFp-u- iCc employee himself, Confidential Opinion, 93 -008, as well as a new governmental employer. Ledeber, Opinion 95 007. The term "represent" is also broadly defined to prohibit acting on behalf of any person in any activity. The governmental body with which you are deemed to have been associated upon termination of your employment with the City Department of Licenses and Inspections is the City Department of Licenses and Inspections in its entirety. While applicable, Section 1103(8) of the Ethics Act would restrict "representation" of a "person" before the City Department of Licenses and Inspections. However, per Commission precedents, Section 1103(g) of the Ethics Act does not prohibit the appointment/rehiring of a former public official /public employee to a public office or position of public employment with the former governmental body. Confidential Opinion, 93 -005; Confidential Opinion, 97 -008; Long, Opinions 97 -010 and 97-01 0 -R, McGlat ery, Opinion 00 -004. Therefore, you are advised that Section 1103(8) of the Ethics Act would not prohibit you from being appointed as a Member of the Board of Building Standards, which is within the City Department of Licenses and Inspections as per the Philadelphia Home Rule Charter. 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: In the former capacity as the Chief Code Engineer for the City of Philadel`p`Fi­a ( "City ") Department of Licenses and Inspections, you would be considered a "public employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act's, 65 Pa.C.S. § 1101 et sec ., and the Regulations of the State Ethics Commission, 51 a. Code §'11.1 et —Se—q. Upon termination of your employment with the City, Department of Licenses and Inspections, you became a "former public employee' subject to Section 1103(g) of the Ethics Act. The former governmental body is the City Department of Licenses and Inspections in its entirety. While applicable, Section 1103(g) of the Ethics Act would restrict "representation' of a "person' before the City Department of Licenses and Inspections. Section 1103(q} of the Ethics Act would not prohibit you from being appointed as a Member of the oard of Building Standards, which is established within the City Department of Licenses and Inspections as per the Philadelphia Home Rule Charter. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(l 1) of the Ethics Act, an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith Fink, 19 -517 April 30, 2019 Page 4 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 writingg and must be actually received at the Commission within thirty (30) days of the date or ►s vice 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, r �y YYl Robin M. Hittie Chief Counsel M