Loading...
HomeMy WebLinkAbout20-531 Porter PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL July 21, 2020 To the Requester: Ms. Samantha R. Porter 20-531 Dear Ms. Porter: This responds to your email received July 6, 2020, by which you requested an advisory from the Pennsylvania State Ethics Commission . Issue: Pa.C.S. § 1101 et seq., would impose restrictions upon employment of the Deputy Director of Policy and Strategic Initiatives for the Office of the Mayor (Mayors Office) following termination of employment with the City. Facts: You request an advisory from the Commission regarding the post- employment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. At the time you submitted your inquiry, you stated that you held the position of Deputy Director of Policy and Strategic Initiatives in the Mayors Office. You submitted a copy of a position description (the your aforesaid position, which document is incorporated herein by reference. The Position Description provides that the Deputy Director of Policy and Strategic Initiatives is with the Mayory Office, and that the work of the Mayors Policy Office resides in the ce of Policy, Legislation, and Intergovernmental Affairs. Position Description, at 1. You stated that you would be leaving your employment with the City and beginning employment as the Community Engagement Advisor & Outreach Manager for the Federal Reserve Bank of Philadelphia (the Federal Reserve Bank). You stated that in your role with the Federal Reserve Bank, you would be leading a number of regional public convening events (the Federal Reserve Bank Events) open to a wide range of partners. You further stated that you would be inviting members of City government to the Federal Reserve Bank Events. You additionally stated that you would have a staff of three outreach coordinators who would be able to perform direct outreach to members of the Mayors Office and that your direct supervisor also would be able to represent the Federal Reserve Bank. Porter, 20-531 July 21, 2020 Page 2 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 seek guidance as to whether you would be permitted to invite members of City government to Federal Reserve Bank Events and perform direct outreach to members of the Mayors Office. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the 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 Deputy Director of Policy and Strategic Initiatives for the City Office, you would lic ecs 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 Position 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. In particular, your job duties with respect to project management and policy development would bring you within the Ethics Acts definition of public employee. Consequently, upon termination of your employment with the City, you would become 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 which he has been associat § 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 body with which he has been associated for one year after he leaves that body. 65 Pa.C.S. § 1103(g) (Emphasis added). mental 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 Porter, 20-531 July 21, 2020 Page 3 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 official/public employee himself, Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur, Opinion 95-007. The term "represent" is also broadly defined to prohibit acting on behalf of any person in any 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. 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 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 regard to representation before his former governmental body. The former public official/public employee is not restricted as to representation before other agencies or Porter, 20-531 July 21, 2020 Page 4 entities. However, rnmental body with which a public official/public employee ted 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. Based upon the submitted facts, the Mayors Policy Office and the Mayors Office of Policy, Legislation, and Intergovernmental Affairs are part of the Mayors Office. Therefore, you are advised that the governmental body with which you would be deemed to have been associated upon termination of your employment with the City, hereinafter referred to as your former governmental body, would be the Mayors Office in its entirety. For the first year following termination of your employment with the City, Section 1103(g) of the Ethic a including but not limited to the Federal Reserve Bankbefore 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 from inviting member(s) of City government to Federal Reserve Bank Events or performing direct outreach to member(s) of the Mayors Office to the extent that such activity(ies) would involve 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 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: As the Deputy Director of Policy and Strategic Initiatives for the City of Philadelphia (City) Office of the Mayor (Mayors Office), you would be considered a "public employee" subject to the Public Official and Employee Ethics Act § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq. Upon termination of your employment with the City, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. Based upon the submitted facts, you are advised that the governmental body with which you would be deemed to have been associated upon termination of your employment with the City, hereinafter referred to as your former governmental body, would be the Mayors Office in its entirety. For the first year following termination of your employment with the City, Section 1103(g) of the Ethics Act would a of a including but not limited to your new employer, the Federal Reserve Bank of Philadelphiabefore your 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 Porter, 20-531 July 21, 2020 Page 5 Act would prohibit you from inviting member(s) of City government to regional public convening events that you would lead in your role with the Federal Reserve Bank of Philadelphia or performing direct outreach to member(s) of the Mayors Office to the extent that such activity(ies) would involve 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 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 actually received at the Commission within thirty (30) 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 file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Robin M. Hittie Chief Counsel