HomeMy WebLinkAbout09-517 WAMSLEYDear 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
March 10, 2009
09 -517
This responds to your letter dated January 20, 2009, and your email
correspondence of January 23, 2009, by which you requested an advisory from the
Pennsylvania State Ethics Commission.
Issue: Whether a Public Relations Coordinator with the Public Relations
Department of 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.
Facts: As Deputy Chief Counsel with the House Republican Caucus, you have
been authorized by Nicole Wamsley ( "Ms. Wamsley "), an employee of the House
Republican Caucus, 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. Wamsley is employed as a Public Relations Coordinator with the Public
Relations Department of the House Republican Caucus. You have submitted a copy of
the Job Specification for Ms. Wamsley's position, which document is incorporated
herein by reference. Per the Job Specification, an individual in the position of Public
Relations Coordinator is responsible for the coordination and execution of all media
activity for assigned House Republican Members. Ms. Wamsley's duties as a Public
Relations Coordinator include the following:
• Works actively with Members to develop, implement, and evaluate media
strategies for Members;
• Suggests strategies for using television, radio, e-mail, and printed
materials to craft the most effective constituent message possible;
Corey, 09 -517
March 10, 2009
Page 2
• Works proactively with personnel from multi- media, audio /visual, and the
print shop bureaus to coordinate and develop high- impact media
messages and materials for Members, including, but not limited to, Public
Service Announcements, Features, E- communications, fliers, and
brochures;
• Works proactively with television, radio, and newspaper reporters to pitch
a Member's message;
• Is responsible for keeping each Member's media contact list up -to -date;
• Is responsible for producing all written communications materials for
Members, including, but not limited to, press releases, media advisories,
mailers, e-mail messages, speeches, and letters to the editor in a timely
fashion;
• Attends committee meetings and maintains regular contact with
appropriate research staff when assigned a Committee Chairman;
• Attends committee hearings /meetings when Members' bills are being
discussed;
• Works with Members' staff to keep them informed of pending newsletters
or other projects and to help keep track of Members' legislation; and
• Performs other duties as prescribed by the Majority Leader.
Job Specification, at 1.
You state that a Public Relations Coordinator initiates and makes
recommendations to Members on the purchase of Public Service Announcements for
radio and television. You further state that a Public Relations Coordinator's involvement
is limited to the recommendation for a Public Service Announcement and, in some
instances, helping to craft the language for such Announcement.
Based upon the above submitted facts, you ask whether, in her position as a
Public Relations Coordinator, Ms. Wamsley 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:
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March 10, 2009
Page 3
(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.
(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
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March 10, 2009
Page 4
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:
(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
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March 10, 2009
Page 5
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. Wamsley's duties and responsibilities, the necessary conclusion is that in her
position as a Public Relations Coordinator, Ms. Wamsley 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 Public Relations Coordinator, Ms. Wamsley
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, 6
Pa.C.S. § 1102. The following duties and authority establish Ms. Wamsley's status as a
public employee:
• Working actively with Members to develop, implement, and evaluate
media strategies for Members;
• Suggesting strategies for using television, radio, e-mail, and printed
materials to craft the most effective constituent message possible; and
• Initiating and making recommendations to Members on the purchase of
Public Service Announcements for radio and television.
The foregoing authority would also meet the criteria for determining Ms.
Wamsley's status as a public employee under the Regulations of the State Ethics
Commission, specifically at 51 Pa. Code § 11.1, "public employee," subparagraphs (i)
and (ii).
Therefore, you are advised that in her position as a Public Relations Coordinator
with the Public Relations Department of the House Republican Caucus, Ms. Wamsley
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 Public Relations Coordinator with the Public Relations
Department of the Republican Caucus of the Pennsylvania House of Representatives,
Nicole Wamsley 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
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March 10, 2009
Page 6
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