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HomeMy WebLinkAbout21-537 PerriPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL July 21, 2021 To the Requester: Dear Mr. David J. Perri: 21-537 This responds to your correspondence received June 28, 2021, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the general issue presented below: Issue: As the former Commissioner of the Department of Licenses and Inspections for the City of Philadelphia, what is your "former governmental entity" for purposes of Section 1103(g) of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa. C. S. § 1101 et SeMc .? BriefAnswer: As the former Commissioner of the Department of Licenses and Inspections for the City of Philadelphia, your "former governmental entity" is The Department of Licenses and Inspections in its entirety, and all of the boards and commissions thereunder. See Antico, Order No. 1061; Fink, Advice 19-517; Fink/Mayer, Advice 02-596. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows: You most recently retired from the City of Philadelphia after 39 years of service. During your tenure, you worked in multiple roles for several departments and for the last five years held the appointed position of Commissioner of the Department of Licenses and Inspections. You state that a Commissioner is essentially the CEO of City Department and among other duties, has final authority concerning hiring and letting of contracts within a department. In your capacity as the Commissioner, you reported to the Deputy Managing Director for Public Safety, who in turn Perri, 21-537 July 21, 2021 Page 2 reported to the City's Managing Director. You have included an organizational chart which is incorporated herein by reference. You specifically seek guidance as to what is your "former governmental entity" as the former Commissioner for the Department of Licensing and Inspections. 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 Commissioner of the Department of Licenses and Inspections, you were a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. See Antico, Order No. 1061; Fink, Advice 19-517; Fink/Mayer, Advice 02-596. This conclusion is based upon the fact that as Commissioner of the Department of Licenses and Inspections, you possessed authority 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 of Philadelphia, you became 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 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 in the Ethics Act as follows: Perri, 21-537 July 21, 2021 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 governmental body with which you are deemed to have been associated upon termination of your employment with the City of Philadelphia is The Department of Licenses and Inspections in its entirety, and all of the boards and commissions thereunder. See Antico, Order No. 1061; Fink, Advice 19-517; Fink/Mayer, Advice 02-596. Therefore, for the first year following termination of your employment with the City of Philadelphia, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a "person" —including but not limited to a new employer before The Department of Licenses and Inspections. 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 Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa. C. S. § 1101 et seq., has not been considered. Conclusion: As the former Commissioner of the Department of Licenses and Inspections for the City of Philadelphia, your "former governmental entity" is The Department of Licenses and Inspections in its entirety, and all of the boards and commissions thereunder. 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. Perri, 21-537 July 21, 2021 Page 4 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. Respectfully, BLD.J Chief Counsel