HomeMy WebLinkAbout08-596 CoreyDear Mr. Corey:
ADVICE OF COUNSEL
Rodney A. Corey, Esquire
Deputy Chief Counsel
House Republican Legal Staff
Pennsylvania House of Representatives
Suite B -6 Main Capitol
P.O. Box 202228
Harrisburg, PA 17120 -2228
November 21, 2008
08 -596
This responds to your letters dated October 3, 2008, and October 15, 2008, and
your email correspondence of October 9, 2008, by which you requested an advisory
from the Pennsylvania State Ethics Commission.
Issue: Whether a Legislative Secretary employed by the Republican Caucus of
the Pennsylvania House of Representatives ( "House ") would be considered a "public
employee" subject to the Public Official and Employee Ethics Act (the "Ethics Act "), 65
Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, and in
particular, the requirements for filing Statements of Financial Interests; and, if the
Legislative Secretary would also serve as a Township Auditor, whether it would be
sufficient for her to complete one statement of financial interests form each year for both
positions, checking the "status" boxes for public official and public employee in a non -
election year, and the status boxes for public official, public employee, and candidate in
an election year.
Facts: As Deputy Chief Counsel with the House Republican Legal Staff, you
request an advisory from the Pennsylvania State Ethics Commission on behalf of
Connie McClure ( "Ms. McClure "), an employee of the House Republican Caucus. You
have submitted facts that may be fairly summarized as follows.
Ms. McClure is employed by the House Republican Caucus as a Legislative
Secretary to State Representative Bernard O'Neill ( "Representative O'Neill "). You have
submitted a copy of the job specification for Ms. McClure's position, which job
specification is incorporated herein by reference. Per the job specification, an individual
in the position of Legislative Secretary provides office support and some clerical
services to a legislator or group of legislators. The Examples of Duties set forth in the
job specification are as follows:
• Answers telephone calls in a courteous manner and takes accurate
messages and /or gives answers;
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November 21, 2008
Page 2
• Greets visitors in a friendly cheerful manner;
• Answers constituent requests for status of bills;
• Provides general office support functions that may include photocopying,
mail distribution or assembly of materials for meetings, tour groups and
mailings;
• Coordinates mass mailings;
• Composes and types routine correspondence;
• Schedules appointments, keeps Member's calendar, and may arrange
travel schedule and make reservations;
• Filing;
• Attends meetings and functions on behalf of the State Representative and
takes notes when required;
• Maintains database files;
• Processes PennDOT and other state agency forms;
• Interacts with district office staff;
• Conducts basic administrative research;
• Processes expense vouchers for expense reimbursement, reviews and
pays monthly legislative bills, and maintains a checking account;
• Coordinates tours and manages special projects as needed;
• Tracks pending legislation and keeps Member informed of voting
schedule; and
• Performs other related duties as assigned.
Job Specification, at 1.
You state that in the position of Legislative Secretary, Ms. McClure has the
authority to make independent purchasing decisions but rarely exercises such authority.
Ms. McClure also has the authority to be an authorized signatory on the aforesaid
checking account and to accept money for deposit, including accepting reimbursement
checks from the Comptroller of the House of Representatives to deposit into the
account of a House Member.
Further, when a grant application has been submitted electronically to a state
agency by a constituent or entity from Representative O'Neill's district, Ms. McClure
may review a copy of the grant application with Representative O'Neill, type a letter of
support for Representative O'Neill, and /or forward the letter of support or other relevant
documentation, as directed by Representative O'Neill, to other legislative or
administrative offices.
Based upon the above submitted facts, you ask whether, in her position as
Legislative Secretary, Ms. McClure would be considered a public employee subject to
the Ethics Act, and in particular, the requirements for filing Statements of Financial
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November 21, 2008
Page 3
Interests pursuant to the Ethics Act, and, if so, which specific job function(s) or duty(ies)
would determine her status as a public employee.
You further state that Ms. McClure has recently been appointed to the position of
Township Auditor, and she is currently completing a Statement of Financial Interests as
a public official. To the extent Ms. McClure would be considered a public employee in
her position as Legislative Secretary, you ask whether it would be sufficient for her to
complete one statement of financial interests form each year for both positions,
checking the "status" boxes for public official and public employee in a non - election
year, and the status boxes for public official, public employee, and candidate in an
election year.
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;
(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.
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November 21, 2008
Page 4
(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.
(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.
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November 21, 2008
Page 5
(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.
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.
Based upon the above judicial directives, the provisions of the Ethics Act, the State
Ethics Commission Regulations, and the opinions of the State Ethics Commission, in light
of Ms. McClure's duties and responsibilities, the necessary conclusion is that in her
position as a Legislative Secretary, Ms. McClure is a "public employee" subject to the
Ethics Act, including the financial reporting and disclosure requirements of the Ethics Act.
It is clear that in her capacity as a Legislative Secretary, Ms. McClure has the
ability to take or recommend official action with respect to subparagraphs (1) and (5)
within the definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. §
1102. The following duties and authority establish Ms. McClure's status as a public
employee:
• Processes expense vouchers for expense reimbursement, reviews and
pays monthly legislative bills, and maintains a checking account;
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November 21, 2008
Page 6
• Authority to make independent purchasing decisions; and
• Authority to be an authorized signatory on the aforesaid checking account
and to accept money for deposit, including accepting reimbursement
checks from the Comptroller of the House of Representatives to deposit
into the account of a House Member.
The foregoing authority would also meet the criteria for determining McClure's
status as a public employee under the Regulations of the State Ethics Commission,
specifically at 51 Pa. Code § 11.1, subparagraphs (i) and (ii).
Authority to attend meetings and functions on behalf of the State Representative
or to review grant applications with the Representative would not be sufficient to
establish status as a public employee subject to the Ethics Act unless in doing so, Ms.
McClure would have the authority to take or recommend official action of a
nonministerial nature as to one of the enumerated categories of activities in the
definition of "public employee" set forth at Section 1102 of the Ethics Act, 65 Pa.C.S. §
1102.
Authority to perform purely clerical functions would not be sufficient in and of
itself to establish status as a public employee subject to the Ethics Act. Cf., Goddard,
Opinion 07 -019.
As for Ms. McClure's dual status as a public official (Township Auditor) and
public employee (Legislative Secretary), you are advised as follows.
Section 1104(a ) of the Ethics Act provides that each public official /public
employee must file a Statement of Financial Interests for the preceding calendar year,
each year that he holds the position and the year after he leaves it.
Section 1104(b) of the Ethics Act provides that a candidate for local office must
file a statement of financial interests for the preceding calendar year with the governing
authority of the political subdivision in which he is a candidate on or before the last day
for filing a petition to appear on the ballot for election, and that a copy of the statement
of financial interests shall also be appended to such petition.
For those years in which Ms. McClure would be subject to the filing requirements
of the Ethics Act in multiple positions /capacities, she would be required to satisfy the
filing requirements for each position /capacity. However, it would be sufficient for Ms.
McClure to: (1) complete one Statement of Financial Interests form each year for all
applicable positions /capacities, checking the appropriate "status" boxes for public official
and public employee in a non - election year, and the appropriate status boxes for public
official, public employee, and candidate in an election year; and (2) file the original form
with one required filing location and a copy of the form with all other required filing
locations. A copy of the form, not the original form, should be attached to Ms.
McClure's nomination petitions filed with the County Board of Elections.
Conclusion: As a Legislative Secretary employed by the Republican Caucus of
the Pennsylvania House of Representatives ( "House "), Connie McClure ("Ms. McClure ")
is a "public employee" subject to the Public Official and Employee Ethics Act (the
"Ethics Act "), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics
Commission, and in particular, the requirements for filing Statements of Financial
Interests pursuant to the Ethics Act. For those years in which Ms. McClure would be
subject to the filing requirements of the Ethics Act in multiple positions /capacities, she
would be required to satisfy the filing requirements for each position /capacity. However,
it would be sufficient for Ms. McClure to: (1) complete one Statement of Financial
Interests form each year for all applicable positions /capacities, checking the appropriate
"status" boxes for public official and public employee in a non - election year, and the
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November 21, 2008
Page 7
appropriate status boxes for public official, public employee, and candidate in an
election year; and (2) file the original form with one required filing location and a copy of
the form with all other required filing locations. A copy of the form, not the original form,
should be attached to Ms. McClure 's nomination petitions filed with the County Board of
Elections.
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