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HomeMy WebLinkAbout23-505 O'Donnell PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 FINANCE BUILDING WEBSITE: www.ethics.pa.gov TOLL FREE: 1-800-932-0936 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL January 30, 2023 To the Requester: Patrick O’Donnell 23-505 Dear Mr. O’Donnell: This responds to your emails received January 3, 2023, and January 4, 2023, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issues presented below: Issues: (1) Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose restrictions upon you following termination of your employment as a Deputy Commissioner for the City of Philadelphia (“City”) Department of Public Property. Brief Answer: YES. During the first year following termination of your employment with the City Department of Public Property, Section 1103(g) of the Ethics Act would apply and restrict you from engaging in any activity that would involve “representation” of a “person” — including but not limited to yourself or a consulting firm owned by you and your wife — before your “former governmental body,” the City Department of Public Property. (2) Whether Section 1103(g) of the Ethics Act would prohibit youfrom representing the consulting firm owned by you and your wife before any City agencies or departments other than the City Department of Public Property. Brief Answer: NO. Section 1103(g) of the Ethics Act would not prohibit you from representing the consulting firm owned by you and your wife before City agencies or departments other than the City Department of Public Property. Facts: O’Donnell, 23-505 January 30, 2023 Page 2 You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. You are currently employed as a Deputy Commissioner for the City Department of Public Property, in which capacity you oversee facility maintenance for five of the City’s larger buildings in Center City. You and your wife are the minority owner and the majority owner, respectively, of a consulting firm (the “Consulting Firm”). Your role with the Consulting Firm is that of Chief Operating Officer. The Consulting Firm’s work involves work zone traffic control and project design for private developers and their contractors, and it may expand to provide materials and supplies to its clients. The Consulting Firm has been receiving inquiries about performing services in relation to public works projects in the City. You plan to retire from your employment with the City because you are prohibited from being employed by the City if the Consulting Firm is pursuing or participating on a City-funded project. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon youduring the first year following termination of your City employment. In particular, you ask whether the Ethics Act would impose any restrictions upon your or the Consulting Firm’s ability to perform work for City agencies or departments other than the City Department of Public Property. 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. It is further initially noted that this advisory is limited to addressing your prospective conduct and does not address the conduct of the Consulting Firm. This is because the restrictions of Section 1103(g) of the Ethics Act, discussed herein, apply to former public officials/public employees and would not apply to restrict the conduct of the Consulting Firm. As a Deputy Commissioner for the City Department of Public Property, you are a “public employee” subject to the Ethics Act and the Regulations of the State Ethics Commission. Consequently, upon termination of your employmentwith the City Department of Public Property, 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 employee with regard to “representing” a “person” before “the governmental body with which he has been associated”: O’Donnell, 23-505 January 30, 2023 Page 3 § 1103. Restricted activities (g) Former official or employee.--No former public official or public employee shall representa 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: § 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/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. O’Donnell, 23-505 January 30, 2023 Page 4 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 thatbody 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 you would be deemed to have been associated upon termination of your employment with the City Department of Public Property would be the City Department of Public Property in its entirety. Therefore, for the first year following termination of your employmentwith the City Department of Public Property, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person”— including but not limited to yourself or the Consulting Firm — before the City Department of Public Property. Section 1103(g) of the Ethics Act would not prohibit you from representing the Consulting Firm before City agencies or departments other than the City Department of Public Property. 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. Conclusion: As a Deputy Commissioner for the City Department of Public Property, you are a “public employee” subject to the Ethics Act and the Regulations of the State Ethics Commission.Upon O’Donnell, 23-505 January 30, 2023 Page 5 termination of your employmentwith the City Department of Public Property, you would become a “former public employee” subject to Section 1103(g) of the Ethics Act. Your former governmental body would be the City Department of Public Property in its entirety. For the first year following termination of your employmentwith the City Department of Public Property, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” — including but not limited to yourself orthe Consulting Firm — before theCity Department of Public Property. The restrictions as to representation outlined above must be followed. Section 1103(g) of the Ethics Act would not prohibit you from representing the Consulting Firm before City agencies or departments other than the City Department of Public Property. 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