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HomeMy WebLinkAbout12-532 Confidential ADVICE OF COUNSEL April 26, 2012 12-532 This responds to your letter dated March 12, 2012, 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: (1) providing services to clients of the G of the Program to whom you currently provide services in your capacity as an A; (2) providing services to clients of the H of the Program--to whom you currently provide or will provide services in your capacity as an A--upon the I of such clients from the H of the Program; or (3) billing J, a company named [name of company], or Ks for services rendered in your private capacity. Facts: You request a confidential advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You are employed by Political Subdivision C as an A with the Program. You note that you previously obtained an Advice of Counsel, Confidential Advice, 09-579, which was issued to you on November 13, 2009, in response to your advisory request letter dated October 12, 2009. Based upon the submitted facts, which included a job description for your position with the Program (which Program was then operating under a different name), Confidential Advice, 09-579 determined, inter alia, 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. In your most recent advisory request letter, you state that you are licensed by the Commonwealth of Pennsylvania as a [type of professional]. In your current position as an A with the Program, you provide D and E F in both the G and the H of the Program. You state that your position with Political Subdivision C is not a managerial position and that you do not supervise any employees. You have submitted a copy of the job description for your current position as an A with the Program, which document is incorporated herein by reference. It is administratively noted that said job description is identical to the job description which you submitted in connection with your previous advisory request letter dated October 12, 2009. On [date], you were advised by the administrator (“Administrator”) of the Program that Political Subdivision C will soon be terminating the G of the Program and that you Confidential Advice, 12-532 April 26, 2012 Page 2 will be working exclusively in the H of the Program. You state that the Administrator has since advised you that your job description will remain unchanged with the exception that you will be working exclusively in the H of the Program. You further state that you will not be supervising any employees. In addition to your work at the Program, you provide F in your private capacity to clients who are not involved with the Program. You seek guidance as to whether the Ethics Act would prohibit you in your private capacity from: (1) providing services to clients of the G of the Program to whom you currently provide services in your capacity as an A; (2) providing services to clients of the H of the Program--to whom you currently provide or will provide services in your capacity as an A--upon the I of such clients from the H of the Program; or (3) billing J, a company named [name of company], or Ks for services rendered in your private capacity. 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 Confidential Advice, 09-579, it was determined 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. There is no indication in the submitted facts that your duties and responsibilities as an A with the Program have changed since Confidential Advice, 09-579 was issued to you on November 13, 2009. Your shift to working exclusively in the H of the Program, in and of itself, would not alter the conclusion of Confidential Advice, 09-579 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. You are advised that the Ethics Act would not prohibit you in your private capacity from: (1) providing services to clients of the G of the Program to whom you currently provide services in your capacity as an A; (2) providing services to clients of the H of the Program--to whom you currently provide or will provide services in your capacity as an A--upon the I of such clients from the H of the Program; or (3) billing J, a company named [name of company], or Ks for services rendered in your private capacity. 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. Conclusion: In your capacity as an A with the B Program (hereinafter “the Program”) of Political Subdivision C, Pennsylvania, you are not to be considered a Confidential Advice, 12-532 April 26, 2012 Page 3 “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: (1) providing services in your private capacity to clients of the G of the Program to whom you currently provide services in your capacity as an A; (2) providing services in your private capacity to clients of the H of the Program--to whom you currently provide or will provide services in your capacity as an A--upon the I of such clients from the H of the Program; or (3) billing J, a company named [name of company], or Ks for services rendered in your private capacity. 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