Loading...
HomeMy WebLinkAbout19-520 KimiluPHONE: 717 - 783 -1610 TOLL FREE: 1- 800- 932 -0936 To the Requester: Mr. Ralph Kimilu Dear Mr. Kimilu: ADVICE OF COUNSEL May 10, 2019 FACSIMILE: 717- 787 -0806 WEBSITE: www.ethics.pa.gov 19 -520 This responds to your letter dated March 6, 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 P.TS. § 1101 et seq., would impose restrictions upon employment of an Airport Operations Officer Supervisor for the City of Philadelphia Department of Commerce ("City Department of Commerce ") following termination of employment with the City Department of Commerce. Facts: You request an advisory from the Commission regarding the post - empryment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. Effective September 1, 2018, you retired from your employment as an Airport Operations Officer Supervisor with the City Department of Commerce in the Division of Aviation. You have submitted a list of your employment duties for your former position with the City Department of Commerce, which document is incorporated herein by reference. A copy of Job Class Specification 2P09 for the position of Airport Operations Officer Supervisor has been obtained and is also incorporated herein by reference. On February 18, 2019, you began employment with Parkway Corporation as an Assistant Manager. However, on February 20, 2019, the Division of Aviation of the City Department of Commerce asked Parkway Corporation to halt your employment pending clearance from the City of Philadelphia Board of Ethics ( "City Board of Ethics ") as to any post-employment restrictions that might be applicable to you. In an email to you dated March 5, 2019, Maya Nayak ( "Ms. Nayak "), General Counsel of the City Board of Ethics, opined that your proposed ground transportation /public information services work as an Assistant Manager for Parkway Corporation would not raise an issue under either of the two post - employment restrictions overseen by the City Board of Ethics. Ms. Nayak recommended that you seek guidance from the Commission as to any potential applicability of the post - employment restrictions of Section 1103(g) of the Ethics Act to your proposed work for Parkway Corporation. Kimilu, 19 -520 Way f0, 2019 Page 2 Based upon the above submitted facts, you ask whether Section 1103(g) of the Ethics Act would impose prohibitions or restrictions upon you with regard to working as an Assistant Manager for Parkway Corporation. Discussion: It is initially oted that pursuant to Sections 1107(10) and 1107(11) of e Ethics Act, 65 Pa.C.S. y§§ 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given onl as to prospective (future) conduct. To the extent that your inquiry relates to conduc that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. In the former capacity as an Airport Operations Officer Supervisor for the City Department of Commerce, 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 submitted facts and Job Class Specification 2P09, 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 City Department of Commerce, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. While Section 1103(8) 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 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 to the Ethics Act as follows: Kimilu, 19 -520 Way TO, 2019 Page 3 § 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 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 officiaNpUb ifc employee himself, Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur, pinion 95-007. The term "represent" is also broadly defined to prohibit acting on behalf of any person in an activity. Examples of prohibited representation include: personal appearances before the former governmental body or bodies; (2) attempts �1). o 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 ggovernmental body as to acting on behalf of a person; and (5) lobbying. Popovich, 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(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 a re- 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. 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 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 Kimilu, 19 -520 ley TO, 2019 Page 4 influence the former governmental body or to otherwise make known to that body the representation of, or work for, the new employer. Section 1103(8) only restricts the former public official /public employee with re and 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 rolli Session, No. 15 at 290, 291; Si, Opinion 90 -006 Sharp, Opinion - . The governmental body with which you are deemed to have been associated upon termination of your employment with the City Department of Commerce is the City Department of Commerce in its entirety, including but not limited to the Division of Aviation. Therefore, for the first year following termination of your employment with the City Department of Commerce, Section 1103(8) of the Ethics Act would apply and restrict "representation" of a "person" before the City Department of Commerce. You are advised that during the first year following termination of your employment with the City Department of Commerce, Section 1 f03(g) of the Ethics Act would prohibit you from performing any job duty(ies) for your new employer, Parkway Corporation, that would involve prohibited representation before the City Department of Commerce 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 as prohibited by Section 11 03(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: In the former capacity as an Airport Operations Officer Supervisor or the City of Philadelphia Department of Commerce "City Department of Commerce "), you would be considered a "public employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 W%on` athe Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et termination of your employment with the City Department of Commerce, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmentaf body is the City Department of Commerce in its entirety, including but not limited to the Division of Aviation. For the first year following termination of your employment with the City Department of Commerce, Section 1103(g) of the Ethics Act would apply and restrict `representation" of a "person" before the City Department of Commerce. The restrictions as to representation outlined above must be followed. During the first year following termination of your employment with the City Department of Commerce, Section 1103(g) of the Ethics Act would prohibit you from performing any job duty(ies) for your new employer, Parkway Corporation, that would involve prohibited Kimilu, 15 -520 M-ay To, 2019 Page 5 representation before the City Department of Commerce as set forth above. 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 writingg and must be actual! received at the Commission within thirty (30) days of the date 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 (777 - 787 - 0806). Failure to We such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal, Sincerely, Robin M. Hittie Chief Counsel