HomeMy WebLinkAbout08-580 WilliamsLutheran J. Williams
2005 Colonial Road
Harrisburg, PA 17112
Dear Mr. Williams:
ADVICE OF COUNSEL
October 3, 2008
08 -580
This responds to your letter dated August 27, 2008, by which you requested
advice from the Pennsylvania State Ethics Commission.
Issue: Whether as an Accounting Assistant with the Pennsylvania Department of
Transportation ( "PennDOT "), you would be considered a "public employ ee" 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, and upon leaving Commonwealth
employment, the restrictions of Section 1103(g) of the Ethics Act pertaining to former
public officials /public employees.
Facts: You are currently employed as an Accounting Assistant with PennDOT.
You have submitted a copy of your official PennDOT position description, which is
incorporated herein by reference. A copy of the job classification specifications for your
position (job code 03000) has also been obtained and is incorporated herein by
reference.
Per your official PennDOT position description, your duties and responsibilities
include the following:
• Overseeing the posting of agreement and contract payments into contract
payment ledger(s) to maintain the accounting history of multiple Bureau project,
lease and building maintenance contracts;
• Reviewing agreement and contract payment recording documents and ledgers
for accuracy and completeness for budget tracking and accounting purposes,
and producing periodic updates and reports as needed;
• Providing accounting aid to the Bureau's Administrative Division Chief for the
annual production of Depreciation Sheet, Income Statement, Direct and Indirect
Labor Worksheet, and Direct and Indirect Laboratory Material Worksheet for
submission for PennDOT and Commonwealth and Federal Highway
Administration review and acceptance.
• Providing accounting aid to the Bureau's Administrative Division Chief for the
annual development of the Testing Laboratory's financial chargeback "Lab Rate"
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October 3, 2008
Page 2
calculation for submission for PennDOT and Commonwealth and Federal
Highway Administration review and acceptance; and
• Maintaining expenditure and budgetary control accounting spreadsheets and
preparing a monthly report on the financial balance and fiscal status of open
contracts and agreements.
Per the job classification specifications under job code 03000, an Accounting
Assistant:
• Performs standard bookkeeping duties in recording, reviewing, and processing
financial records and documents;
• May supervise a small clerical staff;
• Posts or supervises the posting of accounting data to ledgers, books, registers,
and journals;
• Makes routine adjustments to accounts;
• Prepares daily summary and monthly accumulative reports, and takes routine
trial balances and prepares routine and /or proceduralized financial reports;
• Maintains expenditure and budgetary control accounts and prepares necessary
reports relating to account status;
• Audits claims in disbursing offices and processes approved claims for payment;
• Receives remittances for licenses, taxes, and other fees, issues appropriate
receipts, posts to original books of entry, and reconciles bank accounts for a
variety of funds at the end of a fiscal period;
• Maintains detailed tax receivable accounts, prepares daily reports on collections,
posts figures to general ledgers, and assists in the preparation of routine financial
reports;
• Analyzes forms, correspondence, audit and investigation reports, and records to
determine completeness, accuracy of information, and compliance with rules and
regulations; and
• Audits and maintains a payroll or a segment of a large payroll, including posting
changes, auditing for completeness, and reviewing input and output from the
payroll system.
In your advisory request letter, you stated that you are seeking employment with
a firm named "Gannet Fleming," a private contractor that has a contract with PennDOT.
In telephone conversations with Commission staff on August 26, 2008, and September
2, 2008, you confirmed that you plan to terminate your employment with PennDOT to
accept a position with a private firm. Additionally, you stated that such position would
involve working in a PennDOT building.
You seek guidance as to whether the Ethics Act would impose any prohibitions
or restrictions upon you with regard to accepting a position with a private firm, which
position would involve working in a PennDOT building.
Williams, 08 -580
October 3, 2008
Page 3
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 responding to your inquiry, the threshold question to be addressed is whether,
as an Accounting Assistant with PennDOT, 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:
(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.
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October 3, 2008
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(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
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:
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October 3, 2008
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(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.
"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 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, 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 an Accounting Assistant for PennDOT, you would be
considered a "public employee" subject to the Ethics Act.
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October 3, 2008
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As an Accounting Assistant, you have the ability to take or recommend official
action with respect to subparagraph (5) within the definition of "public employee" as set
forth in the Ethics Act, 65 Pa.C.S. § 1102. Specifically, per the job classification
specifications, you have the authority to: supervise a small clerical staff; maintain
expenditure and budgetary control accounts; audit claims in disbursing offices and
process approved claims for payment; receive remittances for licenses, taxes and other
fees; reconcile bank accounts for a variety of funds at the end of a fiscal period;
maintain detailed tax receivable accounts; and audit and maintain a payroll or segment
of a large payroll. Under the submitted facts, the necessary conclusion is that the
aforementioned authority would be sufficient to establish status as a "public employee"
subject to the Ethics Act.
The foregoing authority 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, subparagraphs (i) and (ii).
Consequently, upon termination of public service, you would become a "former
public employee" subject to Section 1103(g) of the Ethics Act.
While Section 1103(g) of the Ethics Act 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 ":
§ 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
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October 3, 2008
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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 /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 official/
public employee on invoices submitted by his new employer to the former governmental
body, even though the invoices pertain to a contract that existed prior to termination of
public service, 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 /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 public service would be PennDOT in its entirety.
Therefore, for the first year after termination of your employment with PennDOT,
Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons"
before PennDOT.
Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are
advised that the Ethics Act would not prohibit you from accepting employment with a
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October 3, 2008
Page 8
firm in the private sector. However, to the extent that your job duties would require
interaction with PennDOT in a manner that would constitute prohibited "representation"
as delineated above, your performance of such activities would be prohibited by Section
1103(g) of the Ethics Act during the first year following termination of your employment
with PennDOT. It would be impossible, as a practical matter, for you to perform the
duties of the proposed position with a private firm, which would involve working out of a
PennDOT building, without engaging in prohibited representation before PennDOT in
contravention of Section 1103(g) of the Ethics Act. Ziegler, Opinion 98 -001; Metzgar,
Opinion 06 -002.
Based upon the facts that have been submitted, this Advice has addressed the
applicability of Section 1103(g) only. It is expressly assumed that there has been no
use of authority of office for a private pecuniary benefit as prohibited by Section 1103(a)
of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the
Ethics Act provide in part that no person shall offer to a public official /public employee
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.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act. Specifically not addressed herein is the applicability of the Governor's Code
of Conduct.
Conclusion: In your capacity as an Accounting Assistant with the Pennsylvania
Department of Transportation ("PennDOT "), you would be considered a "public
employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act "). Upon
termination of employment with PennDOT, you would become a "former public
employee" subject to Section 1103(g) of the Ethics Act. The former governmental body
would be PennDOT in its entirety. Section 1103(g) of the Ethics Act would restrict you
from engaging in any activity that would constitute prohibited representation before
PennDOT for one year following termination of Commonwealth employment. The
restrictions as to representation outlined above must be followed. The propriety of the
proposed conduct has only been addressed under the Ethics Act.
Further, should service be terminated, as outlined above, the Ethics Act would
require that a Statement of Financial Interests be filed by no later than May 1 of the year
after termination of service.
Pursuant to Section 1107(11), 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
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
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October 3, 2008
Page 9
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