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HomeMy WebLinkAbout23-552 MulvennaPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Daniel Mulvenna Dear Mr. Mulvenna: 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 October 13, 2023 23-552 This responds to your emails received October 3, 2023, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue presented below: Issue: Whether, as an Operations Analyst II with the Philadelphia Parking Authority, you are a "public employee" subject to the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sec .., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et sec.., such that upon termination of your employment with the Philadelphia Parking Authority, the post -employment restrictions of Section 1103(g) of the Ethics Act which apply to former public officials/public employees would be applicable to you. Brief Answer: NO. Upon review of the submitted facts, as an Operations Analyst 11 with the Philadelphia Parking Authority, you are not a "public employee" subject to the provisions of the Ethics Act and the Regulations of the State Ethics Commission. Consequently, the post -employment restrictions of Section 1103(g) of the Ethics Act would not be applicable to you upon termination of your employment with the Philadelphia Parking Authority. Facts: You are currently employed as an Operations Analyst 11 with the Philadelphia Parking Authority. You are considering leaving your employment with the Philadelphia Parking Authority to accept a position as a Project Manager for Flowbird USA. The job duties of your proposed position with Flowbird USA would include ensuring the successful start-up of various parking, Mulvenna, 23-552 October 13, 2023 Page 2 transportation and mobility projects, creating and approving project plans, setting deadlines/schedules and monitoring progress toward them, coordinating all required contract deliverables for projects, and managing projects within the budget and scope of their contracts. The question that is posed by your advisory request is whether the one-year post- employment restrictions of Section 1103(g) of the Ethics Act, which apply to former public officials/public employees, would impose prohibitions or restrictions upon you with regard to being employed as a Project Manager for Flowbird USA following termination of your employment with the Philadelphia Parking Authority. You have submitted copies of two Job Vacancy Announcements for the position of Operations Analyst II with the Philadelphia Parking Authority, which documents are incorporated herein by reference. Per the Job Vacancy Announcements, an Operations Analyst II reviews, analyzes, modifies, and develops procedures to meet the operating needs of the Planning & Analysis Department, the Towing & Booting Department, or the Ticketing Department. The role of an Operations Analyst II is to work closely with business people and residents to ensure that parking regulations accommodate the needs of each block. The principal duties of an Operations Analyst II include: Identifying areas citywide and conducting surveys for regulations and parking patterns; Engaging in discussions with community groups, business group institutions, and elected representatives; Preparing final parking plans and legislation where necessary; Preparing and distributing public information regarding regulations; Preparing sign work orders to ensure that desired regulations are properly posted; Conducting mathematical computations; and Developing forms, files, records, and reports. The work of an Operations Analyst II is performed under the general direction of others. 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. The Ethics Act defines the term “public employee” as follows: § 1102. Definitions “Public employee.” Any individual employed by the Commonwealth or a political subdivision who is responsible for Mulvenna, 23-552 October 13, 2023 Page 3 taking or recommending official action of a nonministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person. The term shall not include individuals who are employed by this Commonwealth or any political subdivision thereof in teaching as distinguished from administrative duties. 65 Pa.C.S. § 1102. The Regulations of the State Ethics Commission similarly define the term “public employee” and set forth the following additional criteria: (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of “public employe”: (A) The individual normally performs his responsibility in the field without onsite supervision. (B) The individual is the immediate supervisor of a person who normally performs his responsibility in the field without onsite supervision. (C) The individual is the supervisor of a highest level field office. (D) The individual has the authority to make final decisions. (E) The individual has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions. (F) The individual prepares or supervises the preparation of final recommendations. (G) The individual makes final technical recommendations. (H) The individual’s recommendations or actions are an inherent and recurring part of his position. Mulvenna, 23-552 October 13, 2023 Page 4 (I)The individual’s recommendations or actions affect organizations other than his own organization. (iii)The term does not include individuals who are employed by the Commonwealth or a political subdivision of the Commonwealth in teaching as distinguished from administrative duties. (iv) Persons in the following positions are generally considered public employes: (A) Executive and special directors or assistants reporting directly to the agency head or governing body. (B) Commonwealth bureau directors, division chiefs or heads of equivalent organization elements and other governmental body department heads. (C) Staff attorneys engaged in representing the department, agency or other governmental bodies. (D) Engineers, managers and secretary-treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, administrative officers, housing and building inspectors, investigators, auditors, sewer enforcement officers and zoning officers in all governmental bodies. (E) Court administrators, assistants for fiscal affairs and deputies for the minor judiciary. (F) School superintendents, assistant superintendents, school business managers and principals. (G) Persons who report directly to heads of executive, legislative and independent agencies, boards and commissions except clerical personnel. (v) Persons in the following positions are generally not considered public employes: (A) City clerks, other clerical staff, road masters, secretaries, police officers, maintenance workers, construction workers, equipment operators and recreation directors. (B) Law clerks, court criers, court reporters, probation officers, security guards and writ servers. Mulvenna, 23-552 October 13, 2023 Page 5 (C) School teachers and clerks of the schools. 51 Pa. Code § 11.1. The following terms are relevant to your inquiry and are defined in the Ethics Act as follows: § 1102. Definitions “Ministerial action.” An action that a person performs in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of the person’s own judgment as to the desirability of the action being taken. “Nonministerial actions.”An action in which the person exercises his own judgment as to the desirability of the action taken. 65 Pa.C.S. § 1102. Status as a “public employee” subject to the Ethics Act is determined by an objective test. The objective test applies the Ethics Act’s definition of the term “public employee” and the related regulatory criteria to the powers and duties of the position itself. Typically, the powersand duties of the position are established by objective sources that define the position, such as the job description, job classification specifications, and organizational chart. The objective test considers what an individual has the authority to do in a given position based upon these objective sources, rather than the variable functions that the individual may actually perform in the position. See, Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion 04-002; Shienvold, Opinion 04-001; Shearer, Opinion 03-011. The Commonwealth Court of Pennsylvania has specifically considered and approved this Commission’s objective test and has directed that coverage under the Ethics Act be construed broadly and that exclusions under the Ethics Act be construed narrowly. See, Quaglia v. State Ethics Commission, 986 A.2d 974 (Pa. Cmwlth. 2010), amended by, 2010 Pa. Commw. LEXIS 8 (Pa. Cmwlth.January 5, 2010), allocatur denied, 607 Pa. 708, 4 A.3d 1056 (2010); Phillips, supra. The first portion of the statutory definition of “public employee” includes individuals with authority to take or recommend official action of a nonministerial nature. 65 Pa.C.S. § 1102. Likewise, the regulatory criteria for determining status as a public employee, as set forth in 51 Pa. Code § 11.1 (“public employee”)(ii), include not only individuals with authority to make final decisions but also individuals with authority to forward or stop recommendations from being sent to final decision-makers; individuals who prepare or supervise the preparation of final recommendations; individuals who make final technical recommendations; and individuals whose recommendations are an inherent and recurring part of their positions. See, e.g., Reese/Gilliland, Opinion 05-005. Conclusion: Mulvenna, 23-552 October 13, 2023 Page 6 In applying the definition of "public employee" and the related regulatory criteria to the submitted facts as to the duties of your current position, the necessary conclusion is that in your capacity as an Operations Analyst II with the Philadelphia Parking Authority, you are not a "public employee" as that term is defined in the Ethics Act. Based upon an objective review of the submitted Job Vacancy Announcements for the position of Operations Analyst II, you are not responsible for taking or recommending official action of a non-ministerial nature with regard to any of the five categories set forth in the Ethics Act’s definition of the term “public employee.” The post-employment restrictions of Section 1103(g) of the Ethics Act apply only to former public officials/public employees: § 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). Because the duties and responsibilities of your current position would not bring you within the definition of “public employee” as set forth in the Ethics Act, Section 1103(g) of the Ethics Act would not be applicable to you upon termination of your employment as an Operations Analyst II with the Philadelphia Parking Authority. Accordingly, Section 1103(g) of the Ethics Act would not restrict you with regard to being employed as a Project Manager for Flowbird USA. The only provision of the Ethics Act that applies to you is Section 1103(b), which applies to everyone. For your information, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer or give to a public official/public employee anything of monetary value 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. 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. 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. Mulvenna, 23-552 October 13, 2023 Page 7 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