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HomeMy WebLinkAbout19-518 HarmonPHONE: 717- 783 -1610 TOLL FREE: 1 -800- 932 -0936 To the Requester: ADVICE OF COUNSEL May 6, 2019 Ryan D. Harmon, Esquire General Counsel Philadelphia Redevelopment Authority Dear Mr. Harmon: FACSIMILE: 717 -787 -0806 WEBSITE: www.ethics.pa.gov 19 -518 This responds to your letters dated February 6, 2019, and February 28, 2019, by which you re guested 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 the Direc or of the Fine Arts ProgramlPercent for Art Program of the Philadelphia Redevelopment Authority following termination of employment with the Philadelphia Redevelopment Authority. Facts: You have been authorized by Julia Guerrero ( "Ms. Guerrero ") to request an from the Commission on her behalf. You have submitted facts, the material portion of which may be fairly summarized as follows. Ms. Guerrero is currentl employed part-time with the Philadelphia Redevelopment Authority ( "AuthorZQ as the Director of the Authority's Fine Arts ProgramlPercent for Art Program (.`PProgram "). You have submitted a copy of a job description for Ms. Guerrero's position with the Authority and a list of her employment duties, which documents are Incorporated herein by reference. The Program requires redevelopers that build on land purchased from or assembled by the Authority to dedicate one percent of their construction costs to commissioning original site - specific fine art or contributing to a fine arts fund. Ms. Guerrero manages the Program through the Development Department of the Authority. The Authority has a longstanding internal residency policy that requires Authority staff to reside within the County /City of Philadelphia ( "City "). Ms. Guerrero recently moved out of the City, and the Authority anticipates that following a standard grace period, Ms. Guerrero will leave her part-time employment with the Authority. You state that independent of Ms. Guerrero's residency situation, the Authority has been considering converting the management of the Program to a consultant function due to the limited number of hours required to manage the Program and in an Harrison, 19 -518 May X019 Page 2 effort to minimize costs. Upon Ms. Guerrero`s departure from her Authority employment, the Authority intends to terminate the part -time employment position relative to management of the Program and to seek public bids for a qualified provider to manage the Program as an hourly -rate contractor rather than a part -time employee. Any services contract awarded for management of the Program would require the approval of the Authority Board of Directors. You state that given the uniqueness of the Program and the specific skillset and experience required to manage the Program, it is possible that Ms. Guerrero or an entity owned by her could be the only bidder that would be qualified to manage the Program. The AuthoriVusing s currently in the process of consolidating staff and functions with the Philadelphia Deve lopment Corporation ( "PHDC ") in order to build operational efficiencies. You state that the Authority and PHDC are "sister" agencies that share physical office space and programmatic functions. The Program might be moved from the custody and control of the Authority to the custody and control of a different agency—such as PHDC or another City or a Commonwealth agency —that might seek public bids for a contractor to manage the Program. Based upon the above submitted facts, you pose the following questions: (1) Whether, during the one -year period of applicability of the post - employment restrictions of Section 1103,g of the Ethics Act, Ms. Guerrero or an entity owned by her would be prohibited from bidding to manage the Program when it would be under the custody and control of the Authority —even if she or the entity owned by her would be the only provider qualified to manage the Program due to the uniqueness of the Program; and (2) Whether Section 1103(8g) of the Ethics Act would permit Ms. Guerrero or an entity owned by her to bid to manage the Program if it would be moved from the custody and control of the Authority to the custody and control of a different agency such as PHDC or another City or Commonwealth agency. Discussion: It is initial) 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 the Director of the Program, Ms. Guerrero 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 submitted facts, 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 employment with the Authority, Ms. Guerrero would become a "former public employee" subject to Section 1103(g) of the Ethics Act. Harmon, 19 -518 May 6, 2019 Page 3 While Section 1103(?) does not prohibit a former public officiallpublic 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 bodv with which he has been associated for one year after he leaves that o y. 65 Pa.C.S. § 1103(g) (Emphasis added). The terms "represent," "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 submittingg bid or contract proposals which are signed by or contain fhe 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 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 cfficiaVp_ub iTc employee himself, Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur, pinion 5 -00 7. The term "represent" is also broadly defined to prohibit acting on behalf of any person in any activity. Examples of prohibited representation include: p ersonal appearances before the former governmental body or bodies; (2) attempts �1)i o nfluence; Harmon, 19 -518 May 2019 Page 4 (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 ggovernmental body as to acting on behalf of a person; and (5) lobbying. Popova Opinion 89 -005. During the one -year period of applicability of Section 1103(g} of the Ethics Act, Section 1103(g} generally would prohibit a former public official /pu lic employee from contracting with the former governmental body (see, Shaub, Order 1242; Confidential Opinion, 97 -008; Confidential Opinion ' 93 -O05 o6 providing consulting services constituting representation Before the former governmental body (see, Claycomb, 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. Shama , Opinion 91 -012. However, if such apre- 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. AbramsNVebster, 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 apppearance 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() only restricts the former public official/public employee with re rd 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 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 Ms. Guerrero would be deemed to have been associated upon termination of her employment with the Authority would be the Authority in its entirety. Therefore, for the first year following termination of Ms. Guerrero's employment with the Authority, Section 1103(g) of the Ethics Act would appply and restrict Ms. Guerrero from representing a "person — including but not limited to Ms. Guerrero herself as a consultant/provider and/or an entity that she owns — before the Authority. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific questions shall now be addressed. Harmon, 19 -518 May 6, 2019 Page 5 You are advised that Section 1103(g) of the Ethics Act applies to former public officials /public employees and would not apply to restrict the conduct of entity(ies) owned by Ms. Guerrero. However, the conduct of such entity(ies) owned by Ms. Guerrero could result in Ms. Guerrero herself running afoul of Section 1103(g) of the Ethics Act. See, Conner, Opinion 12 -002 at 5 -6. During the first year following termination of Ms. Guerrero's employment with the Authority, Section 1103(8) of the Ethics Act would prohibit Ms. Guerrero from bidding to manage the Program when it would be under the custody and control of the Authority- - regardless of whether she would be the only provider qualified to manage the Program due to the uniqueness of the Program—as such activity(ies) would constitute prohibited representation of a person — herself as a cons ultantlprovider before her former governmental body. Cf., Shaub, supra; Claycomb, supra; Confidential Opinion, 97 -008; Confidential Opinion, 93 -005. You are further advised that based upon the submitted facts reggarding the uniqueness of the Program and the specific skillset and experience requiredto manage the Program, it would appear to be impossible, as a practical matter, for an entity owned by Ms. Guerrero to bid to manage the Program when it would be under the custody and control of the Authority without Ms. Guerrero running afoul of Section 1103(g) of the Ethics Act. In response to your second question, you are advised as follows. If the Program would be moved from the custody and control of the Authority to the custody and control of a different agency such as PHDC or another City or Commonwealth agency, Section 1103(g) of the Ethics Act would not prohibit Ms. Guerrero from bidding to manage the Program as a consultant/provider or from managing the Program through an entity that she owns subject to the condition that in performing such activity(ies), she would not engage in prohibited representation before the Authority 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 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 official/ public 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: Based upon the submitted facts that: O Julia Guerrero ( "Ms. Guerrero is currently employed part-time with the Philadelphia Redevelopment Authority ( "Authority ") as the Director of the Authority's Fine Arts Program /Percent for Art Program ( "Program "); (2ied the Program requires redevelopers that build on land purchased from or asse . by the Authority to dedicate one percent of their construction costs to commissioning original site - specific fine art or contributing to a fine arts fund; (3) Ms. Guerrero manages the Program through the Development Department of the Authority; (4) the Authority has a longstanding internal residency Harmon, 19 -518 117ayy 6,2019 Page 6 policy that requires Authority staff to reside within the County/City f Philadelphia ( "City' }; (5) Ms. Guerrero recently moved out of the City, and the Authority anticipates that ollowing a standard grace period, Ms. Guerrero will leave her part-time employment with the Authority; (6) independent of Ms. Guerrero's residency situation, the Authority has been considering converting the management of the Program to a consultant function due to the limited number of hours required to manage the Program and in an effort to minimize costs; (7) upon Ms. Guerrero's departure from her Authority employment, the Authority intends to terminate the part -time employment position relative to management of the Program and to seek public bids for a qualified provider to manage the Program as an hourate contractor rather than a part -time employee; (8) any services contract awarded Zr fo management of the Program would require the approval of the Authority Board of Directors; (9) given the uniqueness of the Program and the s ecific skillset and experience required to manage the Program, it is possible that Ms. Guerrero or an entity owned by her could be the only bidder that would be qualified to manage the Program; (10) the Authority is currently in the process of consolidating staff and functions with the Philadelphia Housing Development Corporation "PHDC") in order to build operational efficiencies; (11) the Authority and PHDC are `sister" agencies that share physical office space and programmatic functions; and (12) the Program might be moved from the custody and control of the Authority to the custody and controf of a different agency -- --such as PHDC or another City or Commonwealth agency- -that might seek public bids for a contractor to manage the Program, you are advised as follows. As the Director of the Program, Ms. Guerrero would be considered a "public employyee" subJ'ect to the Public Official and Employee Ethics Act ( "Ethics Act'), 65 11Q'I et se ., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et sseg .upon termination of employment with the Authority, Ms. Guerrero would public employee" subject to Section 1103(g) of the Ethics Act. The governmental body with which Ms. Guerrero would be deemed to have been associated upon termination of her employment with the Authority would be the Authority in its entirety. For the first year following termination of Ms. Guerrero's emplo ment with the Authority, Section 1103(g) of the Ethics Act would apply and restrict Ms. Guerrero from representing a "person"—including but not limited to Ms. Guerrero herself as a consultant/provider and/or an entity that she owns— before the Authority. Section 1103(8) of the Ethics Act applies to former public officials /public employees and woulldd not apply to restrict the conduct of entity(ies) owned by Ms. Guerrero. However, the conduct of such entity(ies) owned by Ms. Guerrero could result in Ms. Guerrero herself running afoul of Section 1103(g) of the Ethics Act. See, Conner, Opinion 12 -002 at 5 -6. During the first year following termination of Ms. Guerrero's employment with the Authority, Section 1103(g) of the Ethics Act would prohibit Ms. Guerrero from bidding to manage the Program when it would be under the custody and control of the Authority — regardless of whether she would be the only provider qualified to manage the Program due to the uniqueness of the Program- -T--as such activity(ies) would constitute prohibited representation of a person— herself as a consultant/provider—before her former governmental body. Based upon the submitted facts regarding the uniqueness of the Program and the specific skillset and experience required to manage the Program, it would appear to be impossible, as a practical matter, for an entity owned by Ms. Guerrero to bid to manage the Program when it would be under the custody and control of the Authority without Ms. Guerrero running afoul of Section 1103(g) of the Ethics Act. If the Program would be moved from the custody and control of the Authority to the custody and control of a different agency such as PHDC or another City or Commonwealth agency, Section 1103(g) of the Ethics Act would not prohibit Ms. Harmon, 19 -518 May 2019 Page 7 Guerrero from bidding to manage the Program as a consultant/provider or from managing the Program through an entity that she owns subject to the condition that in performing such activity (�es), she would not engage in prohibited representation before the Authority as set forth above. 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 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 actuall received at the Commission within thirty (30) days of the date Advice pursuant to 59 Pa. Code § 93.2(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. Sincerelyi2'I r W �. Robin M. Hittie Chief Counsel