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HomeMy WebLinkAbout08-599 WeeterDear 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 December 2, 2008 08 -599 This responds to your letters dated October 28, 2008, and October 29, 2008, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether a Regional Coordinator, District Operations with 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 ( "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. Facts: As Deputy Chief Counsel with the House Republican Legal Staff, you have been authorized by Thomas S. Weeter ( "Mr. Weeter"), an employee of the House Republican Caucus, to request an advisory from the Pennsylvania State Ethics Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Mr. Weeter is employed by the House Republican Caucus as a Regional Coordinator, District Operations. You state that Mr. Weeter is one of a number of Regional Coordinators. You have submitted a copy of the Job Specifications for the position of Regional Coordinator, which document is incorporated herein by reference. Per the Job Specifications, an individual in the position of Regional Coordinator assists Republican House Members and their staff by coordinating constituent outreach programs, responding to constituent inquiries, and researching news media on relevant legislative issues. The examples of duties set forth in the Job Specifications are as follows: 1. Implements outreach programs developed by Members such as town meetings, senior expos and small business seminars. Attends events and provides assistance in all aspects of the implementation of outreach events. Corey, 08 -599 December 2, 2008 Page 2 2. Visits and evaluates legislative district offices and staff. Makes suggestions for improvements to the productivity and impact of the offices. 3. Works with first term Members and their office staff to provide support and training. 4. Assists Members with the opening, closing or relocation of district offices as necessary. 5. Researches news media on a daily basis for articles that deal with Pennsylvania, state government, individual legislators and other legislative issues. 6. Assists House Members and their staff by researching and preparing draft responses to constituent inquiries and letters, referring those of a more technical nature to the Research Department. 7. Contributes to a wide range of publications /manuals distributed by the District Operations Department. 8. Performs other duties to support House Members as assigned. Job Specifications, "Examples of Duties." An individual in the position of Regional Coordinator also serves as a training resource for new Members and district staff and works with limited supervision. You state that John Hanley ( "Mr. Hanley "), Director of District Operations, is the supervisor of Regional Coordinators for the House Republican Caucus. You further state that Mr. Hanley provided the following clarifying information with respect to the above job duties numbered 1, 2, and 8: 1. "Explanation — The Member or their staff choose or at least provide options for the sites, vendors and caterers, but our staff will provide general recommendations and will contact and follow -up as necessary. Staff does not have the authority to secure a site or contract with a caterer, etc., without approval from the Member." 2. "Explanation — These visits are productivity assessments that allow us to suggest changes or to secure good ideas that can be implemented in other offices or throughout the state. Staff does not have the authority to hire or fire, unless told to do so by the Republican Human Resources Office with the approval of the Member. We will offer our recommendations when asked or when the circumstances warrant." 8. "Explanation — These duties would be ministerial /administrative or outreach task oriented. Staff provides recommendations on implementing outreach programs that could require office expenditures, but a Member would have final approval. For example, our staff could recommend doing an invitation mailing to seniors in a Member's district inviting them to attend an informational senior expo. The Member would accept or reject the recommendation." October 29, 2008, letter of Rodney A. Corey, Esquire, at 1 -2. Corey, 08 -599 December 2, 2008 Page 3 Based upon the above submitted facts, you ask whether, in his position as a Regional Coordinator, District Operations, Mr. Weeter would be considered a public employee subject to the Ethics Act, and in particular, the requirements for filing Statements of Financial Interests pursuant 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; (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. Corey, 08 -599 December 2, 2008 Page 4 (C) office. (D) decisions. The individual is the supervisor of a highest level The individual has the authority to make final (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. Corey, 08 -599 December 2, 2008 Page 5 (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 Mr. Weeter's duties and responsibilities, the necessary conclusion is that in his position as a Regional Coordinator, District Operations, Mr. Weeter 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 his capacity as a Regional Coordinator, District Operations, Mr. Weeter 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 Mr. Weeter's status as a public employee: • Providing general recommendations for the sites, vendors, and caterers for outreach events; • Making recommendations with regard to the hiring and firing of legislative district office staff; and Corey, 08 -599 December 2, 2008 Page 6 • Providing other recommendations that could require office expenditures. The foregoing authority would also meet the criteria for determining Mr. Weeter'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). Therefore, you are advised that in his position as a Regional Coordinator, District Operations with the House Republican Caucus, Mr. Weeter is a "public employee" subject to the provisions of the Ethics Act and the Regulations of the State Ethics Commission, and in particular, the requirements for filing Statements of Financial Interests pursuant to the Ethics Act. Conclusion: As a Regional Coordinator, District Operations with the Republican Caucus of the Pennsylvania House of Representatives, Thomas S. Weeter 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. 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