HomeMy WebLinkAbout13-501 Granger
ADVICE OF COUNSEL
January 14, 2013
Scott B. Granger
6454 McCormick Lane
Harrisburg, PA 17111
13-501/13-1500
Dear Mr. Granger:
This responds to your letter of November 15, 2012, by which you requested an
advisory from the Pennsylvania State Ethics Commission.
Issue:
Whether, as an Executive Policy Analyst 2 for the Pennsylvania Public
Utility Commission (“PUC”), 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, and if so, whether you would be
required to disclose on your Statement of Financial Interests transportation, lodging,
hospitality, or gifts which you would receive from the Pennsylvania Bankers Association
(“PBA”) through your fiancée, who is the First Vice-Chairman of the Board of Directors
of the PBA; and whether, as an Executive Policy Analyst 2 for the PUC, you would be
considered a “state official or employee” under Pennsylvania’s lobbying disclosure law
(“Lobbying Disclosure Law”), 65 Pa.C.S. § 13A01 et seq.
Facts:
You request an advisory from the Pennsylvania State Ethics Commission
based upon submitted facts, the material portion of which may be fairly summarized as
follows.
You are currently employed as an Executive Policy Analyst 2 with the Bureau of
Investigation and Enforcement (“I&E”) within the PUC. You state that your position is
considered a temporary position and that you have been told you do not have an official
Commonwealth position description.
You have submitted what you state is a copy of the original advertisement (the
“Advertisement”) for your position with the PUC, which document is incorporated herein
by reference. You state that your position with the PUC was originally advertised as a
manager level position and that upon your date of hire, the position was changed. You
further state that your position is now a non-managerial Executive Policy Analyst 2
position and that your job duties are set forth in the Advertisement.
The Advertisement provides, in pertinent part, as follows:
This position is responsible for the development and defense
of (through expert testimony) electric energy related issues
that impact the rates that Pennsylvania electric consumers
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January 14, 2013
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pay. This position investigates and analyzes electric utility
claims that involve Act 129-related compliance filings and
annual reviews. Those claims include rate structure
proposals, smart meter plans, default service plans and
Alternative Energy Portfolio Standards claims submitted by
electric utility companies. Assists in the development and
defense of Office of Trial Staff policies related to those
claims….
Advertisement, at paragraph 1.
You state that in your position with the PUC, you answer to the I&E Engineer
Supervisor, the I&E Engineer Deputy Director, and the I&E Director. While you are an
attorney, you are not a staff attorney with the PUC. You state that your job duties are
exclusively ministerial and that such duties include reviewing electric utility filings,
writing testimony for submission to Administrative Law Judges (“ALJs”), and testifying at
hearings before ALJs. The purpose of your testimony is to submit recommendations for
consideration by the ALJs and the Commissioners of the PUC. You state that I&E is
only one party among many in each case that submit testimony and recommendations
to the ALJs. You state that other than through your recommendations submitted to the
ALJs by way of your testimony, you have no influence over Recommended Decisions
issued by the ALJs--which are then submitted to the PUC Commissioners for review--or
over Final Orders issued by the PUC Commissioners. You further state that you have
no power to affect any final decision issued by the PUC.
Your fiancée is the President and Chief Executive Officer of a local community
bank. Your fiancée is also currently the First Vice-Chairman of the Board of Directors
(“Board”) of the PBA, and she is currently in line to become the next Chairman of the
PBA Board. Your fiancée’s position with the PBA entitles her to go to various PBA
Board retreats and PBA conferences, and the PBA pays for her travel and hotel rooms.
You state that your fiancée takes you along as her guest and that you therefore get the
benefit of the travel and hotel rooms.
The PBA engages in lobbying activities with the Pennsylvania legislature. You
state that the PBA’s in-house counsel asked you to request an advisory from the
Pennsylvania State Ethics Commission so that the PBA has guidance as to how to treat
the benefits which you receive through your fiancée’s involvement with the PBA as such
benefits relate to the Lobbying Disclosure Law and related Regulations.
Based upon the above submitted facts, you pose the following questions:
(1) Whether, in your capacity as an Executive Policy Analyst 2
for the PUC, you are a “public employee” subject to the
Ethics Act, and if so, whether you would be required to
disclose on your Statement of Financial Interests
transportation, lodging, hospitality, or gifts which you would
receive from the PBA through your fiancée; and
(2) Whether, in your capacity as an Executive Policy Analyst 2
for the PUC, you are a “state official or employee” as that
phrase is defined in the Lobbying Disclosure Law.
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), in conjunction with Section 13A08(a) of
the Lobbying Disclosure Law, 65 Pa.C.S. § 13A08(a), 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
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January 14, 2013
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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.
This advisory will first address your questions relative to the Ethics Act.
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.
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(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.
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January 14, 2013
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(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 (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
make final technical recommendations; individuals whose recommendations are an
inherent and recurring part of their positions; and individuals whose recommendations
or actions affect other organizations.
Based upon the submitted facts as to the duties/authority of your position, and
given that coverage under the Ethics Act is to be construed broadly and exclusions under
the Ethics Act are be construed narrowly, you are advised that in your capacity as an
Executive Policy Analyst 2 with the PUC, you are a "public employee" subject to the
Ethics Act and the Regulations of the Commission, and in particular, the requirements for
filing Statements of Financial Interests pursuant to the Ethics Act. You have 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, you have the duty/authority to: (1) review electric utility filings and
develop and defend (through expert testimony) electric energy related issues that
impact the rates that Pennsylvania electric consumers pay; (2) investigate and analyze
electric utility claims that involve Act 129-related compliance filings and annual reviews;
(3) assist in the development and defense of Office of Trial Staff policies related to
those claims; and (4) testify at hearings before ALJs for the stated purpose of
submitting recommendations for consideration by the ALJs and the PUC
Commissioners. The foregoing duty/authority would have a significant economic impact
upon the interests of affected electric utility companies and electric consumers. The
foregoing duty/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, “public employee,” subparagraphs (i) and (ii).
Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), provides that each
public official/public employee must file a Statement of Financial Interests for the
preceding calendar year, each year that he holds the position and the year after he
leaves it.
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Section 1105 of the Ethics Act sets forth the substantive disclosure requirements
for Statements of Financial Interests. Section 1105(b) provides, in pertinent part, as
follows:
§ 1105. Statement of financial interests
(b) Required information.--
The statement shall
include the following information for the prior calendar year
with regard to the person required to file the statement:
. . . .
(6) The name and address of the
source and the amount of any gift or gifts
valued in the aggregate at $250 or more and
the circumstances of each gift. This paragraph
shall not apply to a gift or gifts received from a
spouse, parent, parent by marriage, sibling,
child, grandchild, other family member or friend
when the circumstances make it clear that the
motivation for the action was a personal or
family relationship. However, for the purposes
of this paragraph, the term "friend" shall not
include a registered lobbyist or an employee of
a registered lobbyist.
(7) The name and address of the
source and the amount of any payment for or
reimbursement of actual expenses for
transportation and lodging or hospitality
received in connection with public office or
employment where such actual expenses for
transportation and lodging or hospitality exceed
$650 in an aggregate amount per year. This
paragraph shall not apply to expenses
reimbursed by a governmental body or to
expenses reimbursed by an organization or
association of public officials or employees of
political subdivisions which the public official or
employee serves in an official capacity.
65 Pa.C.S. § 1105(b)(6), (7).
The Ethics Act defines the term “gift” as that term is defined in Section 13A03 of the
Lobbying Disclosure Law, 65 Pa.C.S. § 13A03 (see, 65 Pa.C.S. § 1102). The definition of
“gift” is as follows:
§ 13A03. Definitions.
"Gift."
Anything which is received without consideration of
equal or greater value. The term shall not include a political
contribution otherwise reportable as required by law or a
commercially reasonable loan made in the ordinary course
of business. The term shall not include hospitality,
transportation or lodging.
65 Pa.C.S. § 13A03.
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Section 1105(b)(6) of the Ethics Act requires the filer to disclose on the
Statement of Financial Interests the name and address of the source and the amount of
any gift or gifts valued in the aggregate at $250 or more and the circumstances of each
gift. The filer is not required to disclose gifts from a family member or friend (with the
term “friend” excluding a registered lobbyist or employee of a registered lobbyist) when
the circumstances make it clear that the motivation for the action was the
personal/family relationship.
Subject to certain statutory exceptions not applicable to this matter, Section
1105(b)(7) of the Ethics Act requires the filer to disclose on the Statement of Financial
Interests the name and address of the source and the amount of any payment for or
reimbursement of actual expenses for transportation and lodging or hospitality received
in connection with public office or employment where such actual expenses exceed
$650 in an aggregate amount per year.
Pursuant to Section 1105(b)(6) of the Ethics Act, if during the same calendar
year you would receive a gift or gifts from the PBA and such gift(s) would be valued in
the aggregate at $250 or more, you would be required to disclose such gift(s) on your
Statement of Financial Interests.
However, you would not be required to disclose on your Statement of Financial
Interests transportation, lodging, or hospitality that you would receive from the PBA
through your fiancée because, under the submitted facts, such transportation, lodging,
or hospitality would not be received in connection with your public employment with the
PUC.
Turning to your question under the Lobbying Disclosure Law, the following terms
relevant to your question are defined in the Lobbying Disclosure Law as follows:
§ 13A03. Definitions.
“State official or employee.”
An individual elected or
appointed to a position in State government or employed by
State government, whether compensated or
uncompensated, who is involved in legislative action or
administrative action.
"Administrative action."
Any of the following:
(1) An agency’s:
(i) proposal, consideration, promulgation or
rescission of a regulation;
(ii) development or modification of a statement of
policy;
(iii) approval or rejection of a regulation; or
(iv) procurement of supplies, services and
construction under 62 Pa.C.S. (relating to
procurement).
(2) The review, revision, approval or disapproval of a
regulation under the act of June 25, 1982 (P.L.633,
No.181), known as the Regulatory Review Act.
(3) The Governor’s approval or veto of legislation.
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January 14, 2013
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(4) The nomination or appointment of an individual as an
officer or employee of the Commonwealth.
(5) The proposal, consideration, promulgation or
rescission of an executive order.
"Legislative action."
An action taken by a State official or
employee involving the preparation, research, drafting,
introduction, consideration, modification, amendment,
approval, passage, enactment, tabling, postponement,
defeat or rejection of:
(1) legislation;
(2) legislative motions;
(3) a veto by the Governor; or
(4) confirmation of appointments by the Governor or
appointments to public boards or commissions by a
member of the General Assembly.
65 Pa.C.S. § 13A03. The Lobbying Disclosure Regulations similarly define the above
terms, 51 Pa. Code § 51.1.
The Lobbying Disclosure Law defines the term “agency” as: “An agency, board,
commission, authority or department of the executive department of the
Commonwealth.” 65 Pa.C.S. § 13A03.
The Lobbying Disclosure Regulations define the term “agency” as follows:
Agency—The term includes the following:
…
(ii) Any Commonwealth:
(A) Agency, as defined at 42 Pa.C.S. § 102 (relating to
definitions), to include any executive agency or
independent agency.
(B) Board.
(C) Commission.
(D) Authority.
51 Pa. Code § 51.1.
The term “commonwealth agency” is defined at 42 Pa.C.S. § 102 as follows:
“Any executive agency or independent agency.” 42 Pa.C.S. § 102.
The Lobbying Disclosure Law defines the term “statement of policy” as follows:
“The term includes a guideline.” 65 Pa.C.S. § 13A03.
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January 14, 2013
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The Lobbying Disclosure Regulations define the term “statement of policy” as
follows: “The term includes a guideline, as defined in 1 Pa. Code § 1.4 (relating to
definitions).” 51 Pa. Code § 51.1.
The term “guideline” is defined in 1 Pa. Code § 1.4 as follows:
Guideline—A document, other than an adjudication,
interpretation or regulation, which announces the policy an
agency intends to implement in future rulemakings,
adjudications or which will otherwise guide the agency in the
exercise of administrative discretion. The document may not
amend, repeal or suspend a published regulation or
otherwise effectively circumscribe administrative choice, but
shall establish a framework within which an agency
exercises administrative discretion. If authorized by statute,
the documents may be incorporated into or published as
regulations. The term includes, but is not limited to:
(i) Plans for agency operation and administration which
establish important policies to be utilized in the future
exercise of administrative discretion.
(ii) General policies and plans for the award and
administration of discretionary grants of public
monies.
(iii) Announcements of principles and standards to be
applied in future adjudications.
1 Pa. Code § 1.4.
Based upon the submitted facts, you are a Commonwealth employee. You are
not involved in legislative action. Additionally, you would not be considered involved in
administrative action unless your duties of assisting “in the development … of Office of
Trial Staff policies” related to certain claims (see, Advertisement, at paragraph 1) would
constitute involvement in an agency’s (PUC’s) development or modification of
statement(s) of policy. The submitted facts are insufficient to enable a conclusive
determination in that regard. Therefore, you are generally advised that as an Executive
Policy Analyst 2 with the PUC, you would not be considered a “State official or
employee” as that term is defined by the Lobbying Disclosure Law unless your duties of
assisting in the development of Office of Trial Staff policies related to certain claims
would constitute involvement in an agency’s (PUC’s) development or modification of
statement(s) of policy.
Lastly, your questions have only been addressed under the Ethics Act and the
Lobbying Disclosure Law; the applicability of any other statute, code, ordinance,
regulation, or other code of conduct other than the Ethics Act and the Lobbying
Disclosure Law has not been considered.
Conclusion:
As an Executive Policy Analyst 2 with the Pennsylvania Public Utility
Commission (“PUC”), you are 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 Pennsylvania State Ethics Commission, 51 Pa. Code § 11.1 et seq., and in
particular, the requirements for filing Statements of Financial Interests pursuant to the
Ethics Act. Accordingly, you must file a Statement of Financial Interests each year in
which you hold the aforesaid position and the year following termination of such service.
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Based upon the submitted facts that: (1) your fiancée is the President and Chief
Executive Officer of a local community bank; (2) your fiancée is also currently the First
Vice-Chairman of the Board of Directors (“Board”) of the Pennsylvania Bankers
Association (“PBA”), and she is currently in line to become the next Chairman of the
PBA Board; (3) your fiancée’s position with the PBA entitles her to go to various PBA
Board retreats and PBA conferences, and the PBA pays for her travel and hotel rooms;
and (4) your fiancée takes you along as her guest, and you therefore get the benefit of
the travel and hotel rooms, you are advised as follows. Pursuant to Section 1105(b)(6)
of the Ethics Act, if during the same calendar year you would receive a gift or gifts from
the PBA and such gift(s) would be valued in the aggregate at $250 or more, you would
be required to disclose such gift(s) on your Statement of Financial Interests. You would
not be required to disclose on your Statement of Financial Interests transportation,
lodging, or hospitality that you would receive from the PBA through your fiancée as such
transportation, lodging, or hospitality would not be received in connection with your
public employment with the PUC.
As an Executive Policy Analyst 2 with the PUC, you would not be considered a
“State official or employee” as that term is defined by Pennsylvania’s lobbying
disclosure law (“Lobbying Disclosure Law”), 65 Pa.C.S. § 13A03, unless your duties of
assisting in the development of Office of Trial Staff policies related to certain claims
would constitute involvement in an agency’s (PUC’s) development or modification of
statement(s) of policy. The submitted facts are insufficient to enable a conclusive
determination in that regard.
Your questions have only been addressed under the Ethics Act and the Lobbying
Disclosure Law.
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