On July 18, 2011, the Philadelphia Board of Ethics published a routine advisory opinion on the legality of a city employee seeking contracts with organizations after this employee’s employment relationship with the city ended. Going at great lengths to define what, exactly, a public employee was and what, exactly, constituted a financial interest, the Ethics Board went through great pains to establish the legal basis for its decision, including citing the Philadelphia Municipal Code, specifically section 20-607(c), and the Pennsylvania State Ethics Act, specifically 65 PA CS 1101.
In this opinion, the Philadelphia Board of Ethics affirmed that the former
employee initiating the inquiry “may never assist another person in ‘any transaction involving the City’ as to a particular issue about which [he] exercised discretion while working for the City. This provision applies even if the requester is not compensated for such assistance.” Going further, the Ethics Board advised that “the State Ethics Act, 65 PA C.S. 1101 et seq. prohibits former City employees from representing themselves and others in certain City matters . . . the State Ethics Act prohibits [former contractors and employees] from ‘representing 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 CS 1103 (g).”
So, basically, under Pennsylvania state law, if a person works in any capacity,
particularly in a position that makes decisions for or on behalf of a city agency or entity with relation to expenditures, that person cannot work in any way, shape, or form in influencing decisions in relation to that state agency for at least one year, though the Ethics Board seems to argue that this prohibition’s spirit means that person is prohibited from ever engaging in such activity. Going further, the Ethics Board cites Philadelphia Municipal Code Section 20-607(c) which affirms an even stricter limit in relation to the waiting time between working on behalf of a city agency and benefiting from contracts derived from that working relationship, “No . . . City officer or employee shall become financially interested subsequent to final action, in any . . . award, contract, lease, case, claim, decision, decree, or judgment made by him in his official capacity, during his term in office or employment and until two (2) years have elapsed since the expiration of service . . . of said . . . City officer or employee.”
Now, the definition of a public employee is where the rubber hits the road in
relation to the Philadelphia Gay News conspiracy involving Ken Smukler and the scheme devised to prop up the Philadelphia Gay News with sheriff’s sale ads Smukler obtained in his capacity as the agent of record for the Philadephia Sheriff’s Office. Clarifying what, precisely, a public employee is, the Philadelphia Board of Ethics affirms that “the State Ethics Act applies to any ‘public employee’ which it defines as: ‘[a]ny individual employed by a political subdivision who is responsible for taking or recommending official action of a non-ministerial nature with regard to: (1) contracting or procurement . . . (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.” This means, then, that anyone who works on behalf of a city agency or department, including the Philadelphia Sheriff’s Office, and, over the course of his duties steers contracts, including ad publication contracts, in any particular direction is a de facto public employee.
On February 2, 2012, Ken Smukler, agent of record for the Philadelphia
Sheriff’s Office as an employee of Cardenas Grant Communications, the Sheriff’s Office advertising firm, sent a letter to the Philadelphia Tribune discussion routine business between the Philadelphia Tribune and the Philadelphia Sheriff’s Office. Specifically, Smukler refers to his position as the agent of record and “Account Manager” for the Sheriff’s Office and talks about invoicing. Therefore, Smukler acknowledges his position as a contract employee of the Philadelphia Sheriff’s Office.
On March 30, 2012, less than two months after Smukler was working for the Sheriff’s Office, Philadelphia Gay News publisher
Mark Segal sent a letter to Sheriff Jewell Williams directing the Sheriff to submit payments to Smukler’s new company, Liberty City Press, which will act as a clearinghouse for distribution of community newspaper payments, which totaled over $3,200,000 as of October 2011. And, throughout this entire process, the Philadelphia Gay News has no audited circulation and is unable to demonstrate that it follows the circulation requirements dictated by state and local laws governing publication of public sheriff’s sales.
When asked for comment about the possibility of an ongoing investigation into the apparent flagrant violation of state and local ethics laws and laws governing sheriff’s sale ad publications, Patricia Hartman, spokeswoman for the US Attorney’s office here in Philadelphia was tellingly cryptic.
“We cannot confirm nor deny the existence or non-existence of investigations.”
To share this article, permalink it via http://joshkruger.wordpress.com/2013/02/21/ethicsboard/