HomeMy WebLinkAbout11-500 Hendrickson
ADVICE OF COUNSEL
January 6, 2011
Nicole Stettler Hendrickson
rd
937 N. Third Street, 3 Floor
Harrisburg, PA 17102
11-500
Dear Ms. Stettler:
This responds to your letter dated November 30, 2010 (postmarked December 8,
2010), by which you requested an advisory from the Pennsylvania State Ethics
Commission.
Issue:
Whether, in your former capacity as an Administrative Officer 1 with the
Governor’s Office of Legislative Affairs, you would be considered a “public employee”
and an “executive-level State employee” subject to the Public Official and Employee
Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., such that the post-employment
restrictions of Section 1103(g) and Section 1103(i) of the Ethics Act, respectively, would
now be applicable to you.
Facts:
You have requested an advisory from the Pennsylvania State Ethics
Commission based upon submitted facts that may be fairly summarized as follows.
You were employed with the Governor’s Office of Legislative Affairs (hereinafter
also referred to as “the Office of Legislative Affairs”) from September 2008 until October
31, 2010, when you terminated your Commonwealth employment. You state that from
January 2010 until October 31, 2010, you were employed with the Office of Legislative
Affairs as an Administrative Officer 1, with a working title of “Legislative Manager.”
You state that as an Administrative Officer 1, you engaged in the following
activities: monitoring legislation, coordinating the Office of the Governor’s positions on
bills, and communicating the finalized positions to the appropriate offices; managing
office interns; overseeing public bill signings by Governor Edward G. Rendell; acting,
with supervision, as the Office of Legislative Affairs’ point of contact for legislative
offices in smaller agencies; communicating with the legislative offices of various
agencies as to the Office of Legislative Affairs’ agenda, reports, and bill positions;
working to resolve legislative grant problems on an as-needed basis; and organizing the
legislative operations of Governor Rendell’s annual budget address and Special
Session address on transportation funding.
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January 6, 2011
Page 2
You state that your overall decision-making impact was limited to the
responsibilities typical of an Administrative Officer 1 and was entirely contained within
the Office of Legislative Affairs. You state that you did not make or have the authority to
make policy decisions for any agencies and that the majority of your activities required
approval from the Secretary of Legislative Affairs. You assert that you were not
responsible for taking or recommending official action of a nonministerial nature that
would bring you within the definition of the term “public employee” as set forth in the
Ethics Act.
A copy of the job classification specifications for the position of Administrative
Officer 1 (job code 08630) has been obtained and is incorporated herein by reference.
It is noted that you have submitted a copy of a document entitled “Administrative Officer
1,” which document sets forth job duties and responsibilities identical to those contained
within the job classification specifications under job code 08630.
Per the job classification specifications under job code 08630, the work of an
Administrative Officer 1 involves analyzing administrative operations and policies and
procedures and preparing and implementing recommendations on procedural, budget,
and personnel actions. The duties and responsibilities of an Administrative Officer 1
include:
?
Studying and analyzing administrative operations and problems, preparing
detailed and comprehensive reports of findings and recommendations, and
assisting in implementing procedural or policy changes;
?
Performing public contact work in gathering information, resolving complaints,
engendering support, and providing information;
?
Serving as administrative officer of a state board or commission responsible
for functions of moderate complexity and scope;
?
Supervising a staff of technical or clerical employees engaged primarily in a
single activity;
?
Assisting a high level professional or administrative official in the
management of agency programs;
?
Preparing recommendations and justifications for changes in policies and
procedures, budget requests, personnel actions, and management and office
services activities;
?
Preparing budget estimates and other fiscal and statistical reports and
monitoring budget expenditures;
?
Insuring adherence to administrative standards through maintenance of
control systems;
?
Reviewing correspondence, news sources, technical literature, and
departmental activities and informing superior of significant developments and
problems; and
?
Collecting, interpreting, analyzing, and summarizing information to be used as
a basis for executive action.
Job classification specifications, at 1-2.
On November 1, 2010, you gained employment with Delta Development Group,
Inc. (“Delta”) as an associate. You state that as your role with Delta expands, Delta
may wish for you to be involved in discussions with the administration of the new
Governor and the General Assembly.
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would impose any restrictions upon you in your new position with Delta.
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
Hendrickson, 11-500
January 6, 2011
Page 3
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 responding to your inquiry, the threshold question to be addressed is whether,
in your former capacity as an Administrative Officer 1 with the Office of Legislative
Affairs under job code 08630, you would be considered an “executive-level State
employee” or a “public employee” subject to the Ethics Act.
The term "executive-level State employee" is defined in the Ethics Act as follows:
§ 1102. Definitions
"Executive-level State employee."
The Governor,
Lieutenant Governor, cabinet members, deputy secretaries,
the Governor’s office staff, any State employee with
discretionary powers which may affect the outcome of a
State agency’s decision in relation to a private corporation or
business or any employee who by virtue of his job function
could influence the outcome of such a decision.
65 Pa.C.S. § 1102.
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:
Hendrickson, 11-500
January 6, 2011
Page 4
(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.
(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.
Hendrickson, 11-500
January 6, 2011
Page 5
(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,
Phillips 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 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.
In considering the above, the necessary conclusion is that, in your former capacity
as an Administrative Officer 1 with the Office of Legislative Affairs under job code
08630, you would be considered both an “executive-level State employee” and a “public
employee” subject to the Ethics Act.
The definition of the term “executive-level State employee” includes “the
Governor’s office staff….” 65 Pa.C.S. § 1102. Since the Office of Legislative Affairs is
part of the Office of the Governor, in your former capacity as an Administrative Officer 1
with the Office of Legislative Affairs under job code 08630, you were part of the
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January 6, 2011
Page 6
Governor’s office staff. Therefore, in the aforesaid capacity, you were an “executive-
level State employee” subject to the Ethics Act. Cf., Maatman, Opinion 96-005.
Further, in applying the aforesaid judicially approved objective test in the instant
matter, the necessary conclusion is that, in your former capacity as an Administrative
Officer 1 with the Office of Legislative Affairs under job code 08630, you would be
considered a “public employee” subject to the Ethics Act. Cf., Zamolyi, Advice 06-571;
Haviland, Advice 94-607.
In your capacity as an Administrative Officer 1 under job code 08630, you had
the ability to take or recommend official action of a nonministerial nature with respect to
subparagraph (5) within the definition of “public employee” as set forth in the Ethics Act,
65 Pa.C.S. § 1102. Specifically, per the job classification specifications under job code
08630, you had the authority to: (1) supervise a staff of technical or clerical employees;
(2) prepare and implement recommendations for budget requests/actions and personnel
actions; and (3) prepare budget estimates and monitor budget expenditures. The
aforesaid duties/authority would be sufficient to establish status as a public employee
subject to the Ethics Act.
Consequently, upon termination of Commonwealth employment, you became a
“former public employee” and a “former executive-level State employee” subject to the
restrictions of Section 1103(g) and Section 1103(i) of the Ethics Act.
Section 1103(i) restricts former executive-level State employees as follows:
§ 1103. Restricted activities
(i)Former executive-level employee.--
No former
executive-level State employee may for a period of two
years from the time that he terminates employment with this
Commonwealth be employed by, receive compensation
from, assist or act in a representative capacity for a business
or corporation that he actively participated in recruiting to this
Commonwealth or that he actively participated in inducing to
open a new plant, facility or branch in this Commonwealth or
that he actively participated in inducing to expand an existent
plant or facility within this Commonwealth, provided that the
above prohibition shall be invoked only when the recruitment
or inducement is accomplished by a grant or loan of money
or a promise of a grant or loan of money from the
Commonwealth to the business or corporation recruited or
induced to expand.
65 Pa.C.S. § 1103(i).
Section 1103(i) restricts the ability of a former executive-level State employee to
accept employment or otherwise engage in business relationships following termination
of State service, under certain narrow conditions. The restrictions of Section 1103(i)
apply even where the business relationship is indirect, such as where the business in
question is a client of a new employer, rather than the new employer itself. See,
Confidential Opinion, 94-011. However, Section 1103(i) would not restrict you from
being employed by, receiving compensation from, assisting, or acting in a
representative capacity for a business subject to the conditions that you did not actively
participate in recruiting such business to Pennsylvania, and that you did not actively
participate in inducing such business to open or expand a plant, facility, or branch in
Pennsylvania, through a grant or loan of money or a promise of a grant or loan of
money from the Commonwealth of Pennsylvania.
Hendrickson, 11-500
January 6, 2011
Page 7
Unlike Section 1103(i), Section 1103(g) does not prohibit a former public
official/public employee from accepting a position of employment. However, it does
restrict the former public official/public employee with regard to “representing” a
“person” before “the governmental body with which he has been associated”:
§ 1103. Restricted activities
(g)Former official or employee.--
No former public
official or public employee shall represent a person, with
promised or actual compensation, on any matter before the
governmental body with which he has been associated for
one year after he leaves that body.
65 Pa.C.S. § 1103(g) (Emphasis added).
The terms “represent,” “person,” and "governmental body with which a public
official or public employee is or has been associated" are specifically defined in the
Ethics Act as follows:
§ 1102. Definitions
"Represent."
To act on behalf of any other person in
any activity which includes, but is not limited to, the
following: personal appearances, negotiations, lobbying and
submitting bid or contract proposals which are signed by or
contain the name of a former public official or public
employee.
"Person."
A business, governmental body,
individual, corporation, union, association, firm, partnership,
committee, club or other organization or group of persons.
"Governmental body with which a public official
or public employee is or has been associated."
The
governmental body within State government or a political
subdivision by which the public official or employee is or has
been employed or to which the public official or employee is
or has been appointed or elected and subdivisions and
offices within that governmental body.
65 Pa.C.S. § 1102.
The term "Person" is very broadly defined. It includes, inter alia, corporations and
other businesses. It also includes the former public employee himself, Confidential
Opinion, 93-005, as well as a new governmental employer. Ledebur, Opinion 95-007.
The term "represent" is also broadly defined to prohibit acting on behalf of any
person in any activity. Examples of prohibited representation include: (1) personal
appearances before the former governmental body or bodies; (2) attempts to influence;
(3) submission of bid or contract proposals which are signed by or contain the name of
the former public official/public employee; (4) participating in any matters before the
former governmental body as to acting on behalf of a person; and (5) lobbying.
Popovich, Opinion 89-005.
Listing one's name as the person who will provide technical assistance on a
proposal, document, or bid, if submitted to or reviewed by the former governmental
body, constitutes an attempt to influence the former governmental body. Section
1103(g) also generally prohibits the inclusion of the name of a former public
Hendrickson, 11-500
January 6, 2011
Page 8
official/public employee on invoices submitted by his new employer to the former
governmental body, even if the invoices pertain to a contract that existed prior to
termination of service with such governmental body. Shay, Opinion 91-012. However,
if such a pre-existing contract does not involve the unit where the former public
employee worked, the name of the former public employee may appear on routine
invoices if required by the regulations of the agency to which the billing is being
submitted. Abrams/Webster, Opinion 95-011.
A former public official/public employee may assist in the preparation of any
documents presented to his former governmental body. However, the former public
official/public employee may not be identified on documents submitted to the former
governmental body. The former public official/public employee may also counsel any
person regarding that person's appearance before his former governmental body. Once
again, however, the activity in this respect should not be revealed to the former
governmental body. The Ethics Act would not prohibit or preclude making general
informational inquiries to the former governmental body to secure information which is
available to the general public, but this must not be done in an effort to indirectly
influence the former governmental body or to otherwise make known to that body the
representation of, or work for, the new employer.
Section 1103(g) only restricts the former public official/public employee with
regard to representation before his former governmental body. The former public
official/public employee is not restricted as to representation before other agencies or
entities. However, the “governmental body with which a public official/public employee
is or has been associated” is not limited to the particular subdivision of the agency or
other governmental body where the public official/public employee had influence or
control but extends to the entire body. See, Legislative Journal of House, 1989
Session, No. 15 at 290, 291; Sirolli, Opinion 90-006; Sharp, Opinion 90-009-R.
The governmental body with which you are deemed to have been associated
upon termination of Commonwealth employment is the Office of the Governor in its
entirety, including but not limited to the Governor’s Office of Legislative Affairs. Cf.,
Mentzer, Advice 01-514; Walsh, Advice 99-610; Baker, Advice 97-520. Therefore, for
the first year following termination of your Commonwealth employment, Section 1103(g)
of the Ethics Act would apply and restrict “representation” of a “person” before the Office
of the Governor, including but not limited to the Governor’s Office of Legislative Affairs.
In particular, Section 1103(g) of the Ethics Act would restrict you from performing any
job duties for your new employer, Delta, which would involve prohibited representation
before the Office of the Governor, including but not limited to the Governor’s Office of
Legislative Affairs.
Based upon the facts that have been submitted, this Advice has addressed the
applicability of Sections 1103(g) and 1103(i) only. It is expressly assumed that there has
been no use of authority of office or employment, or confidential information received by
being in the public position, for a private pecuniary benefit as prohibited by Section
1103(a) of the Ethics Act. Further, you are advised that 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 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; 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. Specifically not addressed herein is the
applicability of the Governor’s Code of Conduct.
Hendrickson, 11-500
January 6, 2011
Page 9
Conclusion:
In the former capacity as an Administrative Officer 1 with the
Governor’s Office of Legislative Affairs under job code 08630, you would be considered
a “public employee” and an “executive-level State 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. Upon
termination of your Commonwealth employment, you became a “former public
employee” and a “former executive-level State employee” subject to the restrictions of
Section 1103(g) and Section 1103(i) of the Ethics Act, 65 Pa.C.S. §§ 1103(g), 1103(i).
Section 1103(i) would not restrict you from being employed by, receiving compensation
from, assisting, or acting in a representative capacity for a business subject to the
conditions that you did not actively participate in recruiting such business to
Pennsylvania, and that you did not actively participate in inducing such business to
open or expand a plant, facility, or branch in Pennsylvania, through a grant or loan of
money or a promise of a grant or loan of money from the Commonwealth of
Pennsylvania. The governmental body with which you are deemed to have been
associated upon termination of Commonwealth employment is the Office of the
Governor in its entirety, including but not limited to the Governor’s Office of Legislative
Affairs. For the first year following termination of your Commonwealth employment,
Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person”
before the Office of the Governor, including but not limited to the Governor’s Office of
Legislative Affairs. In particular, Section 1103(g) of the Ethics Act would restrict you
from performing any job duties for your new employer, Delta Development Group, Inc.,
which would involve prohibited representation before the Office of the Governor,
including but not limited to the Governor’s Office of Legislative Affairs. The restrictions
as to representation outlined above must be followed. 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