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HomeMy WebLinkAbout02-596 FinkMichael E. Fink, Director Construction Codes Compliance City of Philadelphia Department of Licenses & Inspections Construction Services, Suite 1100 M.S.B., 1401 J. F. Kennedy Blvd. Philadelphia, PA 19102 -1687 ADVICE OF COUNSEL September 11, 2002 02 -596 Re: Former Public Employee; Section 1103(g); Chief, Mechanical Services Unit; Department of Licenses and Inspections; City of Philadelphia. Dear Mr. Fink: This responds to your letter of July 24, 2002, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et , presents any restrictions upon employment of a Chief of the Mechanical Services lJnit following termination of service with the Department of Licenses & Inspections of the City of Philadelphia. Facts: As Director of Construction Codes Compliance for the City of Philadelphia's Department of Licenses & Inspections, you seek an advisory on behalf of Adam Mayer ( "Mayer "), Chief, Mechanical Services Unit. You have submitted facts, which may be fairly summarized as follows. The division of Construction Services is responsible for enforcing construction codes through the permit and inspection processes. The division is comprised of two responsibility centers: Permit Services, which handles all plan review and permit issuance for proposed construction sites; and District Operations, which handles all construction inspections except for electrical inspections, which are performed through ten licensed inspection agencies as a regulated third party. As one of the unit managers within the Permit Services responsibility center, Mayer is responsible for supervising the Mechanical Services Unit, which performs plan reviews and issues permits for plumbing, fire operations, and electrical construction in the City of Philadelphia. Mayer directly supervises seven plans examiners who are responsible for this work. You state that Mayer, who has a background in electrical code enforcement, sometimes performs electrical plan review to support the workflow. Fink/Mayer 02 -596 September 11, 2002 Page 2 Mayer has been offered a position with a licensed electrical inspection agency to perform electrical inspections in and around the City of Philadelphia. You describe the process through which Mayer would perform such inspection work as follows: Licensed electrical contractors apply for electrical permits in the Mechanical Services Unit. Upon application, this contractor must select a licensed electrical inspection agency to inspect the electrical installation. A plans examiner reviews the construction plans and issues an electrical permit to the contractor. A copy of the permit is forwarded to the named inspection agency. The inspection agency assigns a licensed electrical inspector to inspect the installation. The licensed inspector, through his employer, the inspection agency, certifies the installation or reports violations to the City's Department of Licenses and Inspections. The District Operations responsibility center employs a small number of electrical inspectors to audit the certifications submitted by the licensed electrical inspection agencies. Improper audits by the licensed agencies and /or the licensed electrical inspectors result in penalties imposed against their licenses. You ask whether Mayer's work as a licensed electrical inspector for a licensed electrical inspection agency would constitute a "restricted activity" under the Ethics Act for a one year period as to performing electrical inspections within the City of Philadelphia. 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 requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor 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 requestor has truthfully disclosed all of the material facts. As Chief of the Mechanical Services Unit in the Department of Licenses & Inspections for the City of Philadelphia, Mayer 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 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; planning; inspecting; administering or monitoring grants; leasing; regulating; auditing; or other activities where the economic impact is greater than de minimis on the interests of another person. Consequently, upon termination of public service, Mayer 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 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 body with which he has been associated one year after he leaves that body. Fink/Mayer 02 -596 September 11, 2002 Page 3 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 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 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 employee - himself, Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur, Opinion 95 -007. The term "representation" 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 though the invoices pertain to a contract that existed prior to termination of public service. Shay, Opinion 91 -012. However, if such a pre- existing contract does not involve the unit where the 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 Fink/Mayer 02 -596 September 11, 2002 Page 4 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 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 Mayer would be associated upon termination of public service is the Department of Licenses and Inspections of the City of Philadelphia in its entirety including, but not limited to, the Mechanical Services Unit in the Permit Services responsibility center of the Construction Services Division. See, Antico, Order 1061. Therefore, for the first year after termination of service with they of Philadelphia's Department of Licenses and Inspections, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the City of Philadelphia's Department of Licenses and Inspections. Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are advised that although the Ethics Act would not preclude Mayer from accepting employment as a licensed inspector with a licensed inspection agency, to the extent his activities in his new position would involve prohibited "representation" as outlined above, he could not perform such activities without transgressing Section 1103(g) of the Ethics Act. You state in your submitted facts that the licensed inspector, through his employer, the inspection agency, certifies the installation or reports violations to the City's Department of Licenses and Inspections. If such certifications or reports would involve Mayer making personal appearances before or submitting written documents containing his name to the Department of Licenses and Inspections, he would be engaging in prohibited representation in contravention of Section 1103(g) of the Ethics Act. Based upon the facts which 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 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 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 Chief of the Mechanical Services Unit in the Department of Licenses & Inspections for the City of Philadelphia, Mayer would be considered a "public employee" as defined in the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon termination of service with the Department of Fink/Mayer 02 -596 September 11, 2002 Page 5 Licenses & Inspections for the City of Philadel hia, Mayer would become a "former public employee" subject to Section 1103 of the Ethics Act. The former governmental body would be the Department of icenses and Inspections of the City of Philadelphia in its entirety including, but not limited to, the Mechanical Services Unit in the Permit Services responsibility center of the Construction Codes Compliance Division. The restrictions as to representation outlined above must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Act. Further, should service be terminated, as outlined above, the Ethics Act would require that a Statement of Financial Interests be filed by no later than May 1 of the year after termination of service. Pursuant to Section 1107(11), 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 requestor 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, Vincent J. Dopko Chief Counsel