HomeMy WebLinkAbout08-560 RabuckRichard E. Rabuck
2 Lighthouse Drive
Jonestown, PA 17038
Dear Mr. Rabuck:
ADVICE OF COUNSEL
June 3, 2008
08 -560
This responds to your letter dated April 25, 2008 (postmarked May 3, 2008, and
received May 5, 2008), by which you requested an advisory from the Pennsylvania
State Ethics Commission.
Issue: Whether as a District Office Manager for a Member of the Pennsylvania
House of Representatives, you would be considered a "public employee" subject to the
Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., and
the Regulations of the State Ethics Commission, such that upon leaving Commonwealth
employment, you would be subject to the restrictions of Section 1103(g) of the Ethics
Act pertaining to former public officials /public employees.
Facts: As the District Office Manager for State Representative Dan Moul
( "Representative Moul ") of Gettysburg, Pennsylvania, you request an advisory from the
Pennsylvania State Ethics Commission based upon submitted facts that may be fairly
summarized as follows.
In your current position, you are stationed in Representative Moul's District
Office. Your duties as the District Office Manager include: answering constituent
letters /requests; answering the telephones; responding to e -mails from constituents;
performing general clerical duties; processing Commonwealth of Pennsylvania
Department of Transportation forms for constituents, such as, for example, license plate
registrations and vehicle registration renewals; scheduling meetings for Representative
Moul; reviewing local media for items of interest to Representative Moul; and
overseeing the work of the District Office intern.
You have submitted copies of an organizational chart for Representative Moul's
District Office and the Job Specifications for your position as a District Office Manager,
which documents are incorporated herein by reference.
Per the submitted Job Specifications, your duties /responsibilities and authority
include the following:
• Overseeing the responses made to telephonic, written, and in- person requests
for information and assistance from constituents;
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June 3, 2008
Page 2
• Distributing and communicating Caucus policies to staff;
• Coordinating mass mailings for outreach;
• Attending meetings and functions on behalf of Representative Moul;
• Conducting advanced administrative research;
• Processing expense vouchers for expense reimbursement, reviewing and paying
monthly legislative bills, and maintaining the checking account;
• Coordinating tours and managing special projects as needed;
• Maintaining employee leave records;
• Supervising two or more full -time district staff members;
• Exercising administrative judgment and assuming responsibility for decisions,
consequences, and results; and
• Managing grant applications to the Commonwealth of Pennsylvania Department
of Community and Economic Development ( "DCED ") on behalf of community
organizations for the Harrisburg and district offices.
Job Specifications, at 1.
Based upon the above submitted facts, you ask the following questions:
1. Whether, in your current position as the District Office Manager for
Representative Moul, you would be considered a "public employee"
subject to the Ethics Act; and
2. Whether the Ethics Act would impose any restrictions upon you with
respect to performing lobbying activities during the first year following
termination of your Commonwealth employment.
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.
In the instant matter, the initial question to be addressed is whether, in your
capacity as the District Office Manager for Representative Moul, you would be
considered a "public employee" subject to the Ethics Act.
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 taking or recommending official action of a nonministerial
nature with regard to:
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June 3, 2008
Page 3
(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 recommen-
dations.
(H) The individual's recommendations or actions are
an inherent and recurring part of his position.
(1) 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
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June 3, 2008
Page 4
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 superinten-
dents, 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.
(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 persons own judgment as to the desirability of the
action being taken.
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June 3, 2008
Page 5
"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 powers and 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,
Philips 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 the 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, 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.q., Reese /Gilliland, Opinion 05-
005.
In applying the objective test in the instant matter, the necessary conclusion is
that, in your capacity as the District Office Manager for Representative Moul, you would
be considered a "public employee" subject to the Ethics Act. As the District Office
Manager for Representative Moul, you have the ability /authority to take or recommend
official action of a nonministerial nature with respect to subparagraph (5) within the
definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. § 1102.
Specifically, the following duties set forth in the Job Specifications would be sufficient to
establish status as a "public employee" subject to the Ethics Act:
• Processing expense vouchers for expense reimbursement, reviewing and paying
monthly legislative bills, and maintaining the checking account;
• Supervising two or more full -time district staff members;
• Exercising administrative judgment and assuming responsibility for decisions,
consequences, and results; and
• Managing grant applications to DCED on behalf of community organizations for
the Harrisburg and district offices.
The foregoing activities would also meet the criteria for determining your status
as a public employee under the Regulations of the State Ethics Commission, specifically
at 51 Pa. Code § 11.1, "public employee," subparagraphs (i) and (ii).
Consequently, upon termination of Commonwealth employment, you would
become a "former public employee" subject to Section 1103(g) of the Ethics Act.
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June 3, 2008
Page 6
Section 1103(g) of the Ethics Act restricts a former public official /public employee
with regard to "representing" a "person" before the governmental body with which he
has been associated ":
§ 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).
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 employee himself, Confidential
Opinion, 93 -005, as well as a new governmental employer. Ledebur, Opinion 95 -007.
The term "representation" 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.
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
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June 3, 2008
Page 7
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 the 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 ublic
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 that body 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 Commonwealth employment (the "former
governmental body ") would be the Pennsylvania House of Representatives in its
entirety. Therefore, for the first year following termination of your Commonwealth
employment, Section 1103(g) of the Ethics Act would apply and restrict "representation"
of "persons" before the Pennsylvania House of Representatives.
Turning to your second specific inquiry, you are advised that during the first year
following termination of your Commonwealth employment, Section 1103(g) of the Ethics
Act would prohibit you from performing any lobbying activities that would constitute
prohibited representation before your former governmental body as set forth above.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion: In your capacity as the District Office Manager for State
Representative Dan Moul of Gettysburg, Pennsylvania, you would be considered a
"public employee" as that term is defined in the Public Official and Employee Ethics Act
(`Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon termination of your Commonwealth
employment, you would become a "former public employee" subject to Section 1103(g)
of the Ethics Act. The governmental body with which you would be deemed to have
been associated upon termination of Commonwealth employment (the "former
governmental body ") would be the Pennsylvania House of Representatives in its
entirety. The restrictions as to representation outlined above must be followed. 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
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June 3, 2008
Page 8
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
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 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.
Sincerely,
Robin M. Hittie
Chief Counsel