HomeMy WebLinkAbout09-579 ConfidentialADVICE OF COUNSEL
November 13, 2009
09 -579
This responds to your letter dated October 12, 2009, by which you requested a
confidential advisory from the Pennsylvania State Ethics Commission.
Issue: Whether, as an A with the B Program (hereinafter the Program ") of
Political Subdivision C, Pennsylvania, you 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 whether the Ethics Act would prohibit you in your private capacity from
entering into a contractual relationship with a company that is under contract with
Political Subdivision C to provide management and disbursement of F for [type of
individuals] who receive G.
Facts: You have requested a confidential advisory from the Pennsylvania State
Ethics Commission based upon the following submitted facts.
You are licensed by the Commonwealth of Pennsylvania as a [type of
professional].
You are employed by Political Subdivision C as an A with the Program. You
have submitted a copy of the job description for your current position, which document
is incorporated herein by reference. It is noted that said job description lists your
working title as D.
Per the submitted job description, your duties and responsibilities as an A include
the following:
[list of certain duties and responsibilities].
You state that your position with Political Subdivision C is not a managerial
position, and you do not supervise any employees.
You state that Political Subdivision C has a contractual relationship with a
company named [name of Company E] (hereinafter the Company "), whereby the
Company has agreed to assume responsibility for the management and disbursement
of F for [type of individuals] who receive G. All entities in Political Subdivision C that
Confidential Advice, 09 -579
November 13, 2009
Page 2
provide G to [type of individuals], including the Program, bill the Company directly with
respect to the provision of such services.
In your private capacity, you periodically provide H to clients who are not involved
with the Program, and you have contractual relationships with Is that provide J for
individuals with K for such services.
You state that the Company recently has expressed its willingness to enter into a
contractual relationship with you whereby you would receive J for roviding L to [type of
individuals] residing in Political Subdivision C and Political Subdivision M. You state
that this undertaking would be independent from your employment with Political
Subdivision C and would take place in your own office. You state that Political
Subdivision C's N has indicated to you that she has no objection to your prospective
contractual relationship with the Company.
Based upon the above submitted facts, you ask whether the Ethics Act would
prohibit you in your private capacity from entering into the aforesaid prospective
contractual relationship with the Company.
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.
In the instant matter, the initial question to be addressed is whether, in your
capacity as an A with the Program, you would be considered a "public employee"
subject to the Ethics Act.
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.
Confidential Advice, 09 -579
November 13, 2009
Page 3
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.
(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,
Confidential Advice, 09 -579
November 13, 2009
Page 4
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 your position, the necessary conclusion is that
in your capacity as an A with the Program, you are not to be considered a "public
employee" as that term is defined by the Ethics Act. Based upon an objective review of
the submitted job description, you are 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."
You are advised that the Ethics Act would not prohibit you from entering into a
contractual relationship with the Company whereby you would receive J for providing L
in your private capacity to [type of individuals] residing in Political Subdivision C and
Political Subdivision M. The reasons for this conclusion include the fact that you are not
a "public employee" subject to the Ethics Act.
The only provision of the Ethics Act that applies to you is Section 1103(b), which
applies 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.
Confidential Advice, 09 -579
November 13, 2009
Page 5
Conclusion: Based upon the submitted facts, in your capacity as an A with the B
Program of Political Subdivision C, Pennsylvania, you are 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. The Ethics Act would not prohibit you from
entering into a contractual relationship with Company E whereby you would receive J
for providing L in your private capacity to [type of individuals] residing in Political
Subdivision C and Political Subdivision M. The only provision of the Ethics Act that
applies to you is Section 1103(b), which applies 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