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