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