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HomeMy WebLinkAbout20-500 ArlenePHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE:1 ww.ethics.pa.aov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL January 23, 2020 To the Requester: Mr. Chris Arlene Dear Mr. Arlene: 20-500 This responds to your letter dated November 15, 2019, and your email received December 4, 2019, by which yourequested an advisory from the Pennsylvania State Ethics Commission ("Commission"). Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 7a—T-S. § 1101 et seq., would impose restrictions upon employment of an Assistant Chief Administrative Officer for the City of Philadelphia (Tiityy) Office of the Chief Administrative Officer following termination of employment with tfie City. Facts: You request an advisory from the Commission regarding the post- empTiyment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. Effective January 1, 2019, you established an independent consulting firm named "Chris Arlene Consulting LLC" (the "Firm") The Firm supports nonprofit, local government, and state government organizations by providing analytical, strategic, and project management support. The Firm is a registered small/disadvantaged business entity. In May 2019, you began employment as a part-time Assistant Chief Administrative Officer for the City Office of the Chief Administrative Officer. You have submitted a copy of a job description for your former position with the City Office of the Chief Administrative Officer, which document is incorporated herein by reference. From May 2019 through August 2019, you worked approximately 75 hours as a part-time Assistant Chief Administrative Officer for the City Office of the Chief Administrative Officer. You state that you performed duties by the hour based upon a set rate and that you did not receive health insurance, a pension, or other benefits from the City. You did not have an office, desk, or dedicated work space in the facilities of the City Office of the Chief Administrative Officer, and you worked remotely except for meetings. The work that you performed for the City Office of the Chief Administrative Officer involved the analysis of payroll cycle accuracy for the City`s new OnePhillyy payroll system and the analysis of data sets of interest to the City Office of tF�e Chief Arlene, 20-500 aT nuary 23, 2020 Page 2 Administrative Officer, including data sets pertaining to the Medical Evaluation Unit and paid family leave. You state that you made no decisions of influence pertaining to hiring staff, awarding a contract, or similar matter(s) while you worked for the City. You further state that the City Office of the Chief Administrative Officer decided to end your part- time employment in August 2019 due to tightened budget restrictions. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you during the first year following termination of your employment with the City. In particular, you ask whether you would be permitted to respond to Requests for Proposals and other opportunities to be a vendor to the City. It is administrative) noted that per an organizational chart for the City (maintained at the City ofPhiladelphiawebsite, see hila. ovldocumentsltransition- re ort/ort/) and the website of the City Office of the Mief Administrative Officer see, th t salwww. hila. ov/de artments/office-of-the-chief-adminstrative-officer/), the ief Administrative Officer has aut ority over t e o owing ity Departments, Offices, Bureaus, and Units: (1) Procurement Department; (2) Department of Records; Ace Office of Fleet Management; (4) Human Resources and Talent Unit; (5) of Administrative Review; (6) Bureau of Administrative Adjudication; (7) Office of Innovation and Technology; (8) Office of Performance Management; (9) Contracts Legislation Unit; (10) Department of Public Property; and (11) Office of Open Data and Digital Transformation. 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. In the former capacity as an Assistant Chief Administrative Officer for the City, Office of the Chief Administrative Officer, 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 submitt' a 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; licensingg; 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, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. While Section 1103O 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 Arlene, 20-500 anuary 23, 2020 Page 3 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 "represent," "person," and "governmental bodywith 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 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 em.ployee 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 p�u ii c employee himself, Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur, Opinion 95-00 . The term "represent" is also broadly defined to prohibit acting on behalf of any person in aan r 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 officiallpublic 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. .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. AbramsNVebster, Opinion 95-011. Arlene, 20-500 awry 23, 2020 Page 4 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 activityy 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 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 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 9 - 9-R. Based upon the submitted and administratively noted facts, the governmental body with which you are deemed to have been associated upon termination of your employment with the City, hereinafter collectively referred to as your "former governmental bodyy," consists of the City Office of the Chief Administrative Officer in its entirety and all CZDepartments, Offices, Bureaus, Units, and the like over which the Chief Administrative Officer has authority pursuant to the City Charter or otherwise, including but not limited to the following: (1) Procurement Department; Y2) Department of Records; (3) Office of Fleet Management; (4) Human Resources and alent Unit; (5) Office of Administrative Review; (6) Bureau of Administrative Adjudication; 7) Office of Innovation and Technology; (8) Office of Performance Management; (9) Contracts Legislation Unit; (10) Deppartment of Public Property; and (11) Office of Open Data and Digital Transformation. Cf., Saggiomo, Advice 18-531. Therefore, for the first year following termination of your employment with the City, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "n" perso----including but not limited to yourself as a consultant and/or the Firm --before your former governmental body as delineated above. You are advised that during the first year following termination of your employment with the City, Section 1103(g) of the Ethics Act would prohibit you and/or the Firm from responding to Requests for Proposals and other opportunities to be a vendor to the City unless you would be able to do so without engaging to prohibited representation before your former governmental body 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 'I 103(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 judgent of the public officiallpm ublic 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. Arlene, 20-500 anuary 23, 2020 Page 5 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 Assistant Chief Administrative Officer or the i y of Philadelphia ("City") Office of the Chief Administrative Officer, you would be considered a "public employee" subject to the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et sec . Upon termination of your employment with the City, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. Based upon the submitted and administratively noted facts, the governmental body with which you are deemed to have been associated upon termination of your employment with the City, hereinafter collectively referred to as your "former governmental body," consists of the City Office of the Chief Administrative Officer in its entirety and all City Departments, Offices, Bureaus, Units, and the like over which the Chief Administrative Officer has authority pursuant to the City Charter or otherwise, including but not limited to the following: (1) Procurement Department; Y2) Department of Records; (3) Office of Fleet Management; (4) Human Resources andalent Unit; (5) Office of Administrative Review; (6) Bureau of Administrative Adjudication; 7) Office of Innovation and Technology; (8) Office of Performance Management; (9) Contracts Legislation Unit; (10) Department of Public Property; and (11) Office of Open Data and Digital Transformation. For the first year following termination of your employment with the City, Section 1103(g} of the Ethics Act would apply and restrict "representation" of a person— includding but not limited to yourself as a consultant and/or your independent consulting firm, "Chris Arlene Consulting LLC" (the "Firm") —before our former governmental body as delineated above. The restrictions as to representation outlined above must be followed. During the first year following termination of your employment with the City, Section 1103(g) of the Ethics Act would prohibit you and/or the Firm from responding to Requests for Proposals and other opportunities to be a vendor to the City unless you would be able to do so without engaging in prohibited representation before your former governmental body 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 ail 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(31 days of the date of this Advice 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 Arlene, 20-500 aT nuary 23, 2020 Page 6 file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, %)- •�'�� Robin M. dittie Chief Counsel