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HomeMy WebLinkAbout21-552 Wolfgang 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 October 4, 2021 21-552 To the Requester: Ms. Catie C. Wolfgang Dear Ms. Wolfgang: This responds to your correspondence dated September 24, 2021, by which you requested an to the question summarized below: Issue: 1. et seq., would impose restrictions upon a former public employees new employer from submitting applications for funding to the former governmental entity of the employee? Brief Answer: NO. Provided that for the first year following the end of public employment, the former public employee does not engage in representation of a person including the new employer, before the former governmental entity. See 65 Pa.C.S. § 1103(g). Facts: In submitting the request for an advisory from the Commission, you provided a factual basis which is summarized as follows: On January 8, 2021, you voluntarily separated from the City of Philadelphia (City) after 10 years of employment. During your time with the City, you worked in the Mayors Office (May 2010 to December 2016), Mayors Office of Community Empowerment and Opportunity (January Wolfgang, 21-552 October 4, 2021 Page 2 2016 to March 2018) and the Office of Workforce Development within the Department of Commerce (March 2018 thru January 2021). Your most recent City employment title was Senior Director of Workforce Policy and Strategy. In submitting your request, you included a City Organizational Chart, which is incorporated herein via reference. You are currently employed as the Executive Director of Big Picture Philadelphia (BPP), a non-profit organization that manages two Philadelphia public high schools. BPP is in the process of submitting an application to the City for an Anti-Violence Community Expansion Grant administered by the Managing Directors Office. The work is being led by Erica Atwood, Director of Strategic Initiatives and Public Safety in the Managing Directors Office. Your name does not appear anywhere on BPPs application. You do not intend to be involved in any way in the application process (for example as part of any interviews, budget negotiations, etc.) Grant funding, if awarded, would not be used to cover your salary or benefits. You seek guidance and advice as to whether your status as an employee of BPP precludes the organization from submitting applications for funding to the City. 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 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 material facts. It is further noted that, pursuant the same aforesaid Sections of the Ethics Act, an opinion/advice may only be given as to prospective (future) conduct. To the extent that your inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. As the Senior Director of Workforce Policy and Strategy for the City of Philadelphia, you would be considered a public employee as that term is defined by the Ethics Act. Upon separation from public service you would be considered a employee 1103(g) of the Ethics Act. For application of Section 1103(g) of the Ethics Act, your governmental body with which you were associated is the Department of Commerce in its entirety, including but not limited to the Office of Workforce Development. While Section 1103(g) does not prohibit a former public official from accepting a position of employment, it does restrict the former p s Wolfgang, 21-552 October 4, 2021 Page 3 § 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). governmental body with which a public official or public employee is or has been associatedare 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 official/employee himself/herself, Confidential Opinion, 93-005, as well as any 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/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 ones 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 Wolfgang, 21-552 October 4, 2021 Page 4 attempt to influence the former governmental body. Shay, Opinion 91-012. A former public official/employee may assist in the preparation of documents presented to his/her former governmental body; however, the former public official/employee cannot be identified on documents submitted. Furthermore, a former public official/employee may also counsel persons regarding that persons appearance before his/her former governmental body. Once again, however, the former public official/employeeactivity 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/employee with regard to representation before his/her former governmental body. The former public official/employee is particular subdivision of the agency or other governmental body where the public official/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. Conclusion: Based upon the above, you are advised that Section 1103(g) of the Ethics Act would not prohibit Big Picture Philadelphia (BPP) from submitting an application to the City for an Anti- Violence Community Expansion Grant administered by the Managing Directors Office, provided that your name does not appear anywhere on BPPs application and that you do not engage in prohibited City of Philadelphia Department of Commerce - including but not limited to - the Office of Workforce Development. The propriety of the proposed conduct has only been addressed under the Pennsylvania Public Official and Employee 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. 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. 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 Wolfgang, 21-552 October 4, 2021 Page 5 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, Brian D. Jacisin Chief Counsel