HomeMy WebLinkAbout11-568 Tritt
ADVICE OF COUNSEL
December 15, 2011
Stanley E. Tritt
34 Summerfield Drive
Carlisle, PA 17015
11-568
Dear Mr. Tritt:
This responds to your letter dated November 14, 2011, by which you requested
an advisory from the Pennsylvania State Ethics Commission.
Issue:
Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65
Pa.C.S. § 1101 et seq., would impose any restrictions upon an individual with regard to
engaging in business transactions with the Commonwealth of Pennsylvania
(“Commonwealth”), where: (1) the individual retired from Commonwealth employment
more than one year ago; and (2) following retirement, the individual has provided
services to the Commonwealth as an annuitant under the 95-day “return to state
service” provision at 71 Pa.C.S. § 5706(A.1), working as a High Voltage Electrician
under job code 94390.
Facts:
You request an advisory from the Pennsylvania State Ethics Commission
regarding the post-employment restrictions of the Ethics Act. You have submitted facts
that may be fairly summarized as follows.
Effective October 15, 2010, you retired from your employment as a High Voltage
Electrician Foreman with the Commonwealth. On October 16, 2010, you returned to
work with the Commonwealth as an annuitant under the 95-day “return to state service”
provision at 71 Pa.C.S. § 5706(A.1) (“95-day Annuitant Program”), working as a High
Voltage Electrician. You have submitted copies of the job classification specifications
for the positions of High Voltage Electrician Foreman (job code 94400) and High
Voltage Electrician (job code 94390), which documents are incorporated herein by
reference.
Per the job classification specifications under job code 94390, a High Voltage
Electrician performs a variety of skilled duties operating and maintaining an electrical
substation and the associated electrical power distribution system. Examples of the
work performed by a High Voltage Electrician include:
?
Operating a high voltage substation utilizing status board, relays, switches
and breakers;
?
Checking and interpreting substation instrument readings and taking
corrective action as necessary;
Tritt, 11-568
December 15, 2011
Page 2
?
Maintaining watch at the plant’s power distribution switchboard to control
the distribution of electrical power to various substations and building unit
systems;
?
Performing weekly preventive maintenance and test runs on emergency
standby generators;
?
Making emergency cutouts and substitutions in the event of breakdowns
or necessity for extensive repairs;
?
Maintaining effective operation of generators, synchronous motors, and
motor generators using electrical and mechanical tools and testing
instruments;
?
Repairing and calibrating watt-hour meters, ammeters, synchroscopes,
and other devices, comparing them with control instruments and
standards;
?
Working on “hot” electrical systems in adherence to safety rules,
precautions and procedures, including the use of appropriate safety
equipment;
?
Cleaning, adjusting and repairing electrical control equipment such as air
and oil circuit breakers, starters, switchgears, generators and synchronous
motors;
?
Performing various duties with electrical equipment and conductors, using
the switchgear mode of operation;
?
Installing transformers, insulators and materials, underground cable and
conduit, and stringing lights and power wires to make electrical
connections;
?
Diagnosing and troubleshooting problems with capacitor banks, making
adjustments as necessary;
?
Reading blueprints to trace underground routing of electrical cable;
?
Reading schematic diagrams to determine and resolve electrical system
problems;
?
Selecting and using the appropriate splice kit and tape for line repair;
?
Testing insulated oil, cables, transformers, motors, circuit breakers, and
other electrical equipment;
?
Complying with legal, procedural, safety and recordkeeping requirements
for high voltage electrical work;
?
Preparing and interpreting logs and reports reflecting power production,
consumption, and operating conditions;
?
Operating a lift truck or a 50 foot two-person bucket lift truck to make
electrical repairs on transformers, lines and street lighting;
?
Operating a 50 foot digger truck to set poles and replace pole mounted
transformers; and
?
Performing related work as required.
Job Classification Specifications, Job Code 94390, at 1-2.
Your period of service as an annuitant with the Commonwealth under the 95-day
Annuitant Program will end in December 2011. You state that you are in the process of
developing your own company and that you are interested in conducting business with
the Commonwealth in the future.
Based upon the above submitted facts, you request confirmation that the
restrictions of Section 1103(g) of the Ethics Act would not be applicable to you upon
termination of your service as an annuitant with the Commonwealth and would not
restrict you from pursuing business transactions with the Commonwealth.
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
Tritt, 11-568
December 15, 2011
Page 3
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.
It is further initially noted that the restrictions of Section 1103(g) of the Ethics Act,
which apply to former “public officials” and former “public employees,” apply for one
year following termination of service in the public position:
§ 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).
Based upon the submitted fact that you retired from your employment as a High
Voltage Electrician Foreman with the Commonwealth effective October 15, 2010, which
was more than one year ago, you are advised that the restrictions of Section 1103(g) of
the Ethics Act do not currently apply to you with respect to your former position as a
High Voltage Electrician Foreman with the Commonwealth.
However, it is clear that when an individual who has retired from Commonwealth
employment returns to Commonwealth service as an annuitant to perform services
falling within the Ethics Act’s definition of “public employee” (see, 65 Pa.C.S. § 1102),
the individual becomes a “public employee” subject to the Ethics Act. See, Graves,
Opinion 00-009; McGlathery, Opinion 00-004. Therefore, the answer to the question of
whether the restrictions of Section 1103(g) of the Ethics Act would apply to you when
you would cease providing services as an annuitant working as a High Voltage
Electrician with the Commonwealth hinges upon whether you became a “public
employee” subject to the Ethics Act when you commenced providing such annuitant
services to the Commonwealth.
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.
Tritt, 11-568
December 15, 2011
Page 4
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.
(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.
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December 15, 2011
Page 5
(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.
In applying the definition of “public employee” and the related regulatory criteria
to the functions of your current position, the necessary conclusion is that in your
capacity as an annuitant providing services to the Commonwealth as a High Voltage
Electrician under job code 94390, working under the 95-day Annuitant Program, you are
not to be considered a “public employee” as that term is defined in the Ethics Act.
Based upon an objective review of the job classification specifications for the position of
High Voltage Electrician, 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.” Therefore, Section 1103(g) of the
Ethics Act would not be applicable to you upon termination of your current service as an
annuitant with the Commonwealth and would not restrict you with regard to pursuing
business transactions with the Commonwealth.
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.
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December 15, 2011
Page 6
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.
Conclusion:
Based upon the submitted fact that you retired from employment as
a High Voltage Electrician Foreman with the Commonwealth of Pennsylvania
(“Commonwealth”) more than one year ago, you are advised that the post-employment
restrictions of Section 1103(g) of the Public Official and Employee Ethics Act (“Ethics
Act”), 65 Pa.C.S. § 1103(g), do not currently apply to you with respect to your former
position as a High Voltage Electrician Foreman with the Commonwealth. In your
current capacity as an annuitant providing services to the Commonwealth as a High
Voltage Electrician under job code 94390, working under the 95-day “return to state
service” provision at 71 Pa.C.S. § 5706(A.1), you are not to be considered a “public
employee” as that term is defined in the Ethics Act. Therefore, Section 1103(g) of the
Ethics Act would not be applicable to you upon termination of your current service as an
annuitant with the Commonwealth and would not restrict you with regard to pursuing
business transactions with the Commonwealth. Section 1103(b) of the Ethics Act
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