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Home My WebLink About08-590 MannADVICE OF COUNSEL James G. Mann, Esquire Senior Legal Counsel Republican Chief Counsel's Office Pennsylvania House of Representatives Suite B -6 Main Capitol P.O. Box 202228 Harrisburg, PA 17120 -2228 Dear Mr. Mann: October 27, 2008 08 -590 This responds to your letter dated September 22, 2008, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether a Coordinator of Legislative Analyses with the Pennsylvania House of Representatives Republican Caucus 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 Pennsylvania State Ethics Commission. Facts: As Senior Legal Counsel with the Republican Chief Counsel's Office of the Pennsylvania House of Representatives (hereinafter, "House of Representatives" or "House "), you have been authorized by Sherrie Rank ( "Ms. Rank") to request an advisory from the Pennsylvania State Ethics Commission on her behalf. You have submitted facts that may be fairly summarized as follows. Ms. Rank is an employee of the House Republican Caucus. Ms. Rank was recently appointed to the position of Coordinator of Legislative Analyses. You have submitted a copy of the Job Specifications for the position of Coordinator of Legislative Analyses, which document is incorporated herein by reference. Per the submitted Job Specifications, Ms. Rank's duties consist of the following: • Maintaining current and historical databases for legislation; • Maintaining a House Journal database; • Tracking legislation and assigning work to analysts to ensure updated summary and analysis documents are always available in the most accurate form based on floor action; Mann, 08 -590 October 27, 2008 Page 2 • Uploading bill summaries and analyses to internet and intranet websites; • Tracking floor amendments and coordinating with analysts to obtain descriptions of same; • Compiling and distributing "Key Vote Analysis" book; • Tracking all committee meetings to ensure reports, attendance and roll calls are correct; • Conducting intricate research; • Providing general office support functions that may include photocopying, filing and mailings; • Composing and typing routine or confidential and complex correspondence; • Compiling and sending Analysis Packets to leadership and select staff; • Maintaining Republican and Democrat seniority lists; • Scanning and sending documents for staff and some leadership offices; and • Performing other related and special projects as assigned by the Director. You state that Ms. Rank does not advise Members of the House or staff with regard to the content or efficacy of legislation or amendments. You further state that Ms. Rank does not have the authority to expend public funds or otherwise exercise the power of the state or a political subdivision. Based upon the above submitted facts, you ask whether Ms. Rank, in her current position as Coordinator of Legislative Analyses, would be considered a "public employee" subject to the Ethics Act. 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 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; Mann, 08 -590 October 27, 2008 Page 3 inspecting, licensing, regulating or auditing any person; or 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. (4) (5) 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 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. Mann, 08 -590 October 27, 2008 Page 4 (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. (C) School teachers and clerks of the schools. 51 Pa. Code § 11.1. In applying the definition of "public employee" and the related regulatory criteria to the submitted facts as to the duties of Ms. Rank's position, the necessary conclusion is that in her capacity as Coordinator of Legislative Analyses with the House Republican Caucus, Ms. Rank is not to be considered a "public employee" as that term is defined in the Ethics Act. This is because, based upon an objective review of the submitted Job Specifications, Ms. Rank is 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." Specifically, according to the submitted Job Specifications, Ms. Rank's duties are limited to duties that are clerical or secretarial in nature, with the possible exception of the duty of "conducting intricate research." Clerical and secretarial duties are generally not sufficient to bring an individual within the Ethics Act's definition of the term "public employee." There is no explanation in the submitted Job Specifications of what type of research Ms. Rank is authorized to conduct, but the mere performance of research, in and of itself, would not be sufficient to bring Ms. Rank within the Ethics Act's definition of the term "public employee." (Cf., 51 Pa. Code § 11.1, definition of "public employee," (v)(A) -(B) (clerical staff, secretaries, and law clerks are generally not considered public Mann, 08 -590 October 27, 2008 Page 5 employees)). You have specifically stated that Ms. Rank does not advise Members of the House or staff with regard to the content or efficacy of legislation or amendments. Therefore, based upon the submitted facts, you are advised that the only provisions of the Ethics Act that apply to Ms. Rank are Sections 1103(b) and 1103(c), which apply 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. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: Based upon the submitted facts, Sherrie Rank, in her capacity as Coordinator of Legislative Analyses with the Republican Caucus of the Pennsylvania House of Representatives, is not to be considered a "public employee" as that term is defined by the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Sections 1103(b) and 1103(c) of the Ethics Act apply to everyone. 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 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