Loading...
HomeMy WebLinkAbout22-523 Davis 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 13, 2022 To the Requester: Leanne Davis, Esquire Executive Director City of Pittsburgh Ethics Hearing Board 22-523 Dear Ms. Davis: This responds to your email received June 16, 2022, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the general issue presented below: Issue: Would an individual serving as a Member of the Gender Equity Commission of the City of Pittsburgh (“Gender Equity Commission”) be prohibited from providing consulting services to the Pittsburgh Commission on Human Relations following termination of service with the Gender Equity Commission? Brief Answer: NO. The Ethics Act would not prohibit the individual from providing consulting services to the Pittsburgh Commission on Human Relations following termination of service with the Gender Equity Commission. Facts: You request an advisory from the Commission on behalf of Jam Hammond, who is the Executive Director of the Pittsburgh Commission on Human Relations. You have submitted facts, the material portion of which may be fairly summarized as follows. The LGBTQIA+ Commission and the Gender Equity Commission are housed under the Mayor’s Office of Public Equity. You state that these two commissions function “primarily as advisory boards.” Each commission has a line item within the budget of the Mayor’s Office of Public Equity. You state that staff of the Office of Management of Budget have explained that Davis, 22-523 July 13, 2022 Page 2 “Funding for Gender Equity and LGBTQIA+ initiatives is allocated as an Office of Equity expense, not to each board or commission. Because these are general fund initiatives, all expenditures must therefore move through proper City procurement after receiving necessary approvals from those responsible for the Office of Equity.” You further state that the City functions such that every expenditure is to be processed as legislation, with the consent and approval of City Council and the City Mayor and a release of funds by the City Controller. The City Mayor and City Council are responsible for determining annual budgets. You note that the definition of the term “public official” under the Ethics Act does not include “members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or a political subdivision thereof.” 65 Pa.C.S. § 1102. Based upon the above submitted facts, you ask whether an individual serving as a Member of the Gender Equity Commission would be considered a “public official” subject to the Ethics Act, and if so, whether Section 1103(g) of the Ethics Act would prohibit the individual from providing consulting services to the Pittsburgh Commission on Human Relations, an independent agency that is not part of the Mayor’s Office of Public Equity, following termination of service with the Gender Equity Commission. Discussion: 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. Preliminarily, it is noted that the submitted facts are insufficient to enable a conclusive determination as to whether aMember of the Gender Equity Commission would be considered a “public official” subject to the provisions of the Ethics Act. This is because it is not clear from the submitted facts whether the Gender Equity Commission is a purely advisory boardsuch that the statutory exclusion for members of advisory boards lacking authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or a political subdivision thereof would apply to the Members of the Gender Equity Commission. See, 65 Pa.C.S. § 1102 (definition of “public official”). Therefore, this Advice must be limited to providing the following general guidance. To the extentthat an individual serving as a Member of the Gender Equity Commission would be considered a “public official” subject to the provisions of the Ethics Act, upon termination of service with the Gender Equity Commission, the individual would become a “former public official” subject to Section 1103(g) of the Ethics Act. Section 1103(g) of the Ethics Act provides: Davis, 22-523 July 13, 2022 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 associatedfor 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: § 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. 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. The governmental body with which the individual would be deemed to have been associated upon termination of service with the Gender Equity Commission would be the Gender Equity Commission. For the first year following termination of service with the Gender Equity Commission, Section 1103(g) of the Ethics Act would apply and restrict the individual from engaging in any activity that would involve “representation” of a “person” before the Gender Equity Commission. Section 1103(g) of the Ethics Act would not prohibit the individual from providing consulting services to the Pittsburgh Commission on Human Relations, as such activity would not constitute representation before the individual’s former governmental body. Davis, 22-523 July 13, 2022 Page 4 Conclusion: To the extent that an individual serving as a Member of the Gender Equity Commission would be considered a “public official” subject to the provisions of the Ethics Act, upon termination of service with the Gender Equity Commission, the individual would become a “former public official” subject to Section 1103(g) of the Ethics Act. The governmental body with which the individual would be deemed to have been associated upon termination of service with the Gender Equity Commission would be the Gender Equity Commission. For the first year following termination of the individual’s service with the Gender Equity Commission, Section 1103(g) of the Ethics Act would apply and restrict the individual from engaging in any activity that would involve “representation” of a “person” beforethe Gender Equity Commission. Section 1103(g) of the Ethics Act would not prohibit the individual from providing consulting services to the Pittsburgh Commission on Human Relations, as such activity would not constitute representation before the individual’s former governmental body. 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 receivedat 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, Bridget K. Guilfoyle Chief Counsel