HomeMy WebLinkAbout12-523
ADVICE OF COUNSEL
April 10, 2012
12-523
This responds to your letter dated February 14, 2012, by which you requested a
confidential advisory from the Pennsylvania State Ethics Commission.
Issue:
Whether an individual who retired from the Commonwealth of
Pennsylvania would become a “public employee” subject to the Public Official and
Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., if the individual would
return to work with the Commonwealth under the 95-day “return to state service”
provision at 71 Pa.C.S. § 5706(A.1), working as an A for Commonwealth Department B;
and if so, whether the Ethics Act would impose any prohibitions or restrictions upon the
individual with regard to continuing to work in a private capacity as the C of a D whose
membership includes Es of Fs.
Facts:
You request a confidential advisory from the Pennsylvania State Ethics
Commission based upon submitted facts that may be fairly summarized as follows.
You have a G to H. You state that you recently retired from your employment as
an I with the J Office within Commonwealth Department B. Following your retirement
from the Commonwealth, you began working less than full-time as the C of a D (the
“Association”) whose membership includes Es of Fs.
You have been offered the opportunity to return 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 an A for Commonwealth
Department B with the K Bureau within the J Office. You have submitted copies of a
document (“the Justification”) pertaining to the request for your services as an annuitant
and the job classification specifications for the position of A (job code [number]), both of
which documents are incorporated herein by reference.
The Justification sets forth the reasons for the request for annuitant services and
the proposed duties of the annuitant position as follows:
Justification:
[reasons for request for annuitant services].
Proposed Duties:
[list of proposed duties of annuitant
position].
Justification, at paragraphs 1-2.
Confidential Advice, 12-523
April 10, 2012
Page 2
Per the job classification specifications under job code [number], an A may
[perform certain functions]. Examples of the work performed by an A include:
?
[list of examples of work].
Job Classification Specifications, Job Code [number], at 1-2.
You state that your responsibilities as an annuitant would be to provide Ls and
that you would have no authority for taking official action. You further state that you
would not be working with any of the membership of the Association.
Based upon the above submitted facts, you seek guidance as to whether you
would become a “public employee” subject to the Ethics Act if you would return to work
with the Commonwealth under the 95-day Annuitant Program, providing services to
Commonwealth Department B as an A, and if so, whether the Ethics Act would impose
any prohibitions or restrictions upon you with regard to continuing to work as the C of
the Association.
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.
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.
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.
Confidential Advice, 12-523
April 10, 2012
Page 3
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.
Confidential Advice, 12-523
April 10, 2012
Page 4
(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,
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 this 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, Quaglia v. State Ethics
Commission, 986 A.2d 974 (Pa. Cmwlth. 2010), amended by, 2010 Pa. Commw. LEXIS
8 (Pa. Cmwlth. January 5, 2010), allocatur denied, 607 Pa. 708, 4 A.3d 1056 (Pa.
2010); 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
Confidential Advice, 12-523
April 10, 2012
Page 5
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 applying the objective test in the instant matter, the necessary conclusion is
that if you would return to work with the Commonwealth under the 95-day Annuitant
Program, providing services to Commonwealth Department B as an A, you would be
considered a “public employee” subject to the Ethics Act. See, Graves, supra;
McGlathery, supra; cf., [cite]. As an A, you would have the authority 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, the following duties set forth in the Justification and the job
classification specifications under job code [number] would be sufficient to establish
status as a “public employee” subject to the Ethics Act:
?
[list of certain duties].
The foregoing duties/authority would also meet the criteria for determining 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).
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.
(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:
Confidential Advice, 12-523
April 10, 2012
Page 6
§ 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.
"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.
65 Pa.C.S. § 1102.
Section 1103(a) of the Ethics Act pertaining to conflicts 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.
The use of authority of office is not limited merely to voting, but extends 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.
In each instance of a conflict of interest, a public official/public employee would
be required to abstain from participation, which would include voting unless one of the
statutory exceptions of Section 1103(j) of the Ethics Act would be applicable.
Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have
to be satisfied in the event of a voting conflict.
You are advised that the Association is a business with which you are associated
in your capacity as an employee (C). If you would return to work with the
Commonwealth under the 95-day Annuitant Program, the Ethics Act itself would not
prohibit you from continuing to work as the C of the Association in your private capacity
during non-Commonwealth work hours. However, subject to the statutory exclusions to
Confidential Advice, 12-523
April 10, 2012
Page 7
the definition of “conflict” or “conflict of interest” set forth at Section 1102 of the Ethics
Act, in your public capacity, you would have a conflict of interest under Section 1103(a)
of the Ethics Act in matters that would financially impact the Association.
In each instance of a conflict of interest, you would be required to abstain from
participation, which would include voting unless one of the statutory exceptions of
Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure
requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event
of a voting conflict.
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 facts that: (1) you have a G to H; (2) you
recently retired from your employment as an I with the J Office within Commonwealth
Department B; (3) following your retirement from the Commonwealth, you began
working less than full-time as the C of a D (the “Association”) whose membership
includes Es of Fs; (4) you have been offered the opportunity to return 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 an A for
Commonwealth Department B with the K Bureau within the J Office; and (5) in the
proposed annuitant position, you would not be working with any of the membership of
the Association, you are advised as follows.
The Association is a business with which you are associated in your capacity as
an employee (C). If you would return to work with the Commonwealth under the 95-day
Annuitant Program, providing services to Commonwealth Department B as an A, 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.
If you would return to work with the Commonwealth under the 95-day Annuitant
Program, the Ethics Act itself would not prohibit you from continuing to work as the C of
the Association in your private capacity during non-Commonwealth work hours.
However, subject to the statutory exclusions to the definition of “conflict” or “conflict of
interest” set forth at Section 1102 of the Ethics Act, in your public capacity, you would
have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would
financially impact the Association.
In each instance of a conflict of interest, you would be required to abstain from
participation, which would include voting unless one of the statutory exceptions of
Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure
requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event
of a voting conflict.
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
Confidential Advice, 12-523
April 10, 2012
Page 8
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