HomeMy WebLinkAbout09-586 Nelson
ADVICE OF COUNSEL
December 30, 2009
Julia A. Nelson
Office of State Representative Jerry Stern
324 Allegheny Street
Hollidaysburg, PA 16648
09-586
Dear Ms. Nelson:
This responds to your letter of November 6, 2009, by which you requested an
advisory from the Pennsylvania State Ethics Commission.
Issue:
Whether a District Constituent Outreach Specialist employed by 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, 51 Pa.
Code § 11.1 et seq., and if so, whether the Ethics Act would impose any prohibitions or
restrictions upon such individual in her public capacity in matters pertaining to a non-
profit entity for which she provides services in her private capacity as an independent
contractor.
Facts:
You have requested an advisory from the Pennsylvania State Ethics
Commission based upon submitted facts that may be fairly summarized as follows.
You have recently accepted full-time employment with the House as a “District
Constituent Outreach Specialist” in the legislative district office of Representative Jerry
A. Stern. You have submitted a copy of the job specifications for your new position,
which document is incorporated herein by reference. It is noted that the job
specifications reference your position as being with the House Republican Caucus.
Per the job specifications, an individual in the position of District Constituent
Outreach Specialist provides office support and assists with constituent services in a
legislator’s or group of legislators’ district office. The Examples of Duties set forth in the
job specifications include the following:
?
Handle responses made to telephonic, written and in-person requests for
information and assistance from constituents.
?
Answer telephone calls in a courteous manner and take accurate
messages and/or give answers.
?
Greet visitors in a friendly, professional manner.
Nelson, 09-586
December 30, 2009
Page 2
?
Provide general office support functions that may include photocopying,
mail distribution or assembly of materials for meetings, tour groups and
mailings.
?
Coordinate mass mailings.
?
Compose and type routine correspondence.
?
Schedule appointments, keep Member’s calendar, may arrange travel
schedule and make reservations.
?
Filing.
?
Attend meetings and functions on behalf of State Representative and take
notes when required.
?
Maintain database files.
?
Process PennDOT and other state agency forms accordingly.
?
Interact with district office staff.
?
Conduct basic administrative research.
?
Process expense vouchers for expense reimbursement; review and pay
monthly legislative bills; maintain checking account.
?
Coordinate tours and manage special projects, as needed.
?
Track pending legislation and keep Member informed of voting schedule.
?
Perform other related duties, as assigned.
Job Specifications, at 1.
In a private capacity, you serve as the Executive Director of the Cove Area
Regional Digester (“CARD”). CARD is a 501(c)(3) non-profit entity with a primary
purpose of achieving substantial reduction of nutrient discharge into the watershed of
the Chesapeake Bay through the use of digester technology to treat farm waste.
As Executive Director of CARD, you are not an employee of CARD, but rather,
perform your duties as an independent contractor. You state that you typically devote
up to twenty-five hours per week to said duties.
Based upon the above submitted facts, you pose the following questions:
(1) Whether, in your capacity as a District Constituent Outreach Specialist for
the House, you would be a public employee subject to the provisions of
the Ethics Act;
(2) Whether it would be a conflict of interest under the Ethics Act for you to
continue to serve as Executive Director of CARD while being employed by
the House as a District Constituent Outreach Specialist; and
(3) Whether the Ethics Act would impose any prohibitions or restrictions upon
you in your public capacity as a District Constituent Outreach Specialist in
matters pertaining to CARD, such as with regard to contacting state
government agencies to seek or advocate for state grants, loans or other
types of state funding for CARD.
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.
Nelson, 09-586
December 30, 2009
Page 3
It is further initially noted that, pursuant to the same aforesaid Sections of the
Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. To
the extent you have inquired as to conduct that has already occurred, such past conduct
may not be addressed in the context of an advisory opinion. However, to the extent you
have inquired as to future conduct, your inquiry may, and shall, be addressed.
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.
(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.
Nelson, 09-586
December 30, 2009
Page 4
(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.
(I) 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.
(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.
Nelson, 09-586
December 30, 2009
Page 5
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,
Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Commw. Ct. 1984); Eiben,
Opinion 04-002;Shienvold, Opinion 04-001; Shearer, Opinion 03-011. The
Commonwealth Court of Pennsylvania has specifically considered and approved the
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.g., 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 your duties and responsibilities, the necessary conclusion is that in your position as a
District Constituent Outreach Specialist, you are a "public employee" subject to the Ethics
Act.
It is clear that in your capacity as a District Constituent Outreach Specialist, you
have the ability to take or recommend official action with respect to subparagraph (5)
within the definition of “public employee” as set forth in the Ethics Act, 65 Pa.C.S. §
1102. Your duties/authority to process expense vouchers, pay monthly legislative bills,
and maintain a checking account would be sufficient to establish your status as a public
employee. See, Job Specifications, at 1; cf., Corey, Advice 08-596. The foregoing
authority would also meet the criteria for determining your status as a public employee
under the Regulations of the State Ethics Commission, specifically at 51 Pa. Code §
11.1, subparagraphs (i) and (ii). Your authority to “manage special projects” and to
attend meetings and functions on behalf of the State Representative would provide
additional support for your status as a public employee subject to the Ethics Act if, in
performing such duties, you 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.
Sections 1103(a) and 1103(j) of the Ethics Act provide:
§ 1103. Restricted activities
(a)Conflict of interest.--
No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
Nelson, 09-586
December 30, 2009
Page 6
(j)Voting conflict.--
Where voting conflicts are not
otherwise addressed by the Constitution of Pennsylvania or
by any law, rule, regulation, order or ordinance, the following
procedure shall be employed. Any public official or public
employee who in the discharge of his official duties would be
required to vote on a matter that would result in a conflict of
interest shall abstain from voting and, prior to the vote being
taken, publicly announce and disclose the nature of his
interest as a public record in a written memorandum filed
with the person responsible for recording the minutes of the
meeting at which the vote is taken, provided that whenever a
governing body would be unable to take any action on a
matter before it because the number of members of the body
required to abstain from voting under the provisions of this
section makes the majority or other legally required vote of
approval unattainable, then such members shall be
permitted to vote if disclosures are made as otherwise
provided herein. In the case of a three-member governing
body of a political subdivision, where one member has
abstained from voting as a result of a conflict of interest and
the remaining two members of the governing body have cast
opposing votes, the member who has abstained shall be
permitted to vote to break the tie vote if disclosure is made
as otherwise provided herein.
65 Pa.C.S. §§ 1103(a), (j).
The following terms related to Section 1103(a) are defined in the Ethics Act as
follows:
§ 1102. Definitions
"Conflict" or "conflict of interest."
Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate
family or a business with which he or a member of his
immediate family is associated. The term does not include
an action having a de minimis economic impact or which
affects to the same degree a class consisting of the general
public or a subclass consisting of an industry, occupation or
other group which includes the public official or public
employee, a member of his immediate family or a business
with which he or a member of his immediate family is
associated.
"Authority of office or employment."
The actual
power provided by law, the exercise of which is necessary to
the performance of duties and responsibilities unique to a
particular public office or position of public employment.
"Business."
Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self-employed individual, holding company,
joint stock company, receivership, trust or any legal entity
organized for profit.
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December 30, 2009
Page 7
"Business with which he is associated."
Any
business in which the person or a member of the person's
immediate family is a director, officer, owner, employee or
has a financial interest.
"Financial interest."
Any financial interest in a legal
entity engaged in business for profit which comprises more
than 5% of the equity of the business or more than 5% of the
assets of the economic interest in indebtedness.
65 Pa.C.S. § 1102.
Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is
prohibited from using the authority of public office/employment or confidential
information received by holding such a public position for the private pecuniary benefit
of the public official/public employee himself, any member of his immediate family, or a
business with which he or a member of his immediate family is associated.
In each instance of a conflict of interest, the public official/public employee would
be required to abstain fully from participation. The abstention requirement would not be
limited merely to voting, but would extend to any use of authority of office, including, but
not limited to, discussing, conferring with others, and lobbying for a particular result.
Juliante, Order 809.
Subject to certain statutory exceptions, in each instance of a voting conflict,
Section 1103(j) of the Ethics Act requires the public official/public employee to abstain
and to publicly disclose the abstention and reasons for same, both orally and by filing a
written memorandum to that effect with the person recording the minutes.
It is noted that Section 1103(a) of the Ethics Act pertaining to conflict of interest
does not prohibit public officials/public employees from having outside business
activities or employment; however, the public official/public employee may not use the
authority of his public position--or confidential information obtained by being in that
position--for the advancement of his own private pecuniary benefit or that of a business
with which he is associated. Pancoe, Opinion 89-011. Examples of conduct that would
be prohibited under Section 1103(a) would include: (1) the pursuit of a private business
opportunity in the course of public action, Metrick, Order 1037; (2) the use of
governmental facilities, such as governmental telephones, postage, equipment,
research materials, or other property, or the use of governmental personnel, to conduct
private business activities, Freind, Order 800; Pancoe, supra; and (3) the participation in
an official capacity as to matters involving the business with which the public
official/public employee is associated in his private capacity or private client(s). Miller,
Opinion 89-024; Kannebecker, Opinion 92-010. A reasonable and legitimate
expectation that a business relationship will form may also support a finding of a conflict
of interest. Amato, Opinion 89-002. In each instance of a conflict of interest, the public
official/public employee would be required to abstain from participation, and in the
instance of a voting conflict, to abstain and fully satisfy the disclosure requirements of
Section 1103(j) of the Ethics Act.
Any business as to which you are a director, officer, owner, or employee or in
which you have a financial interest would be considered a business with which you are
associated. A sole proprietorship or self-employed individual is included within the
definition of the term “business” as set forth in the Ethics Act. 65 Pa.C.S. § 1102; In Re:
Nomination Petition of Paulmier, 594 Pa. 433, 937 A.2d 364 (2007).
Under the facts that you have submitted, Section 1103(a) of the Ethics Act would
not preclude you from outside employment/business activity, such as continuing to
Nelson, 09-586
December 30, 2009
Page 8
serve as Executive Director of CARD, subject to the restrictions and qualifications as
noted above.
Given your business relationship with CARD, you generally would have a conflict
of interest in your public capacity as a District Constituent Outreach Specialist in matters
pertaining to CARD, such as, for example, acting in your role as a District Constituent
Outreach Specialist to seek or advocate for state grants, loans or other types of state
funding for CARD.
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability of any other statute, code, ordinance, regulation or other code of
conduct other than the Ethics Act has not been considered in that they do not involve an
interpretation of the Ethics Act.
Conclusion:
As a District Constituent Outreach Specialist for the Pennsylvania
House of Representatives (“House”), 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 the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et
seq. Section 1103(a) of the Ethics Act would not preclude you from outside
employment/business activity, such as continuing to serve as Executive Director of the
Cove Area Regional Digester (“CARD”), subject to the restrictions and qualifications as
noted above. Given your business relationship with CARD, you generally would have a
conflict of interest in your public capacity as a District Constituent Outreach Specialist in
matters pertaining to CARD, such as, for example, acting in your role as a District
Constituent Outreach Specialist to seek or advocate for state grants, loans or other
types of state funding for CARD. 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