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HomeMy WebLinkAbout13-525 Confidential ADVICE OF COUNSEL April 29, 2013 13-525 This responds to your letters of March 5, 2013, and March 8, 2013, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission. Issue: Whether 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.: (1) in your current position as an A with the B Program (hereinafter “the Program”) of Political Subdivision C (hereinafter “the Political Subdivision”), Pennsylvania; or (2) if you would be transferred to a position as either a D or an E with the Program; and if so, whether the Ethics Act would impose prohibitions or restrictions upon you relative to your private practice as an F or your private practice providing G services to clients. Facts: You request a confidential advisory from the Pennsylvania State Ethics Commission. You have submitted facts, the material portion of which may be fairly summarized as follows. You are currently employed by the Political Subdivision as an A, with a working title of [title], in the H Unit of the Program. It is administratively noted that you previously obtained three Advices of Counsel, including in pertinent part Confidential Advice, 13- 516, issued to you on April 3, 2013. Confidential Advice, 13-516 determined, in pertinent part, that if you would accept a position as either an I or a J with the Program, you would be considered a “public employee” subject to the Ethics Act. Confidential Advice, 13-516 concluded that pursuant to Section 1103(a) of the Ethics Act, you would be prohibited from using the authority of your public position or confidential information received by being in your public position for the private pecuniary benefit of yourself, any member of your immediate family, or a business with which you or a member of your immediate family is associated, such as your private practice as an F or your private practice providing G services to clients. Confidential Advice, 13-516 further addressed twenty-six specific questions that you posed as to whether the Ethics Act would impose any prohibitions or restrictions upon you relative to your private practice as an F or your private practice providing G services to clients. In your most recent advisory request, you state that your current position as an A with the Program relates to securing necessary services for [type of individuals] and that you do not provide services to [type of individuals] in your private practice. You have submitted a copy of a job description for your current position with the Program, which document is incorporated herein by reference. Confidential Advice, 13-525 April 29, 2013 Page 2 Per the submitted job description, an A performs duties and responsibilities for [certain matters], including but not limited to the following: [list of certain duties and responsibilities]. Job Description, A, at 1-2. You state that you might eventually be transferred by the Political Subdivision to the position of D in the K Unit of the Program or to the position of E, with a working title of [title], in the L Unit of the Program. You have submitted a copy of a job description for each of the aforesaid positions, which documents are incorporated herein by reference. Per the submitted job description, a D performs duties and responsibilities in relation to [certain areas], including the following: [list of certain duties and responsibilities]. Job Description, D, at 1. Per the submitted job description, the duties and responsibilities of an E include the following: [list of certain duties and responsibilities]. Job Description, E, at 1-2. Based upon the above submitted facts, you pose the following questions: (1) Whether, in your current position as an A with the Program, you would be considered a public employee subject to the Ethics Act; (2) Whether you would be permitted to accept referrals for new clients for your private G practice from a company named [name of company] (the “Company”) and/or other Ms and/or other sources (excluding the Program) and receive N for the same; (3) Whether you would be considered a public employee subject to the Ethics Act if you would be transferred by the Political Subdivision to a position as either a D or an E with the Program; and (4) If the answer to question 3 above would be yes, whether the same restrictions relative to your private G practice would apply to you in such position(s) as would apply to you if you would accept a position as either an I or a J with the Program. 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. The Ethics Act defines the term "public employee" as follows: Confidential Advice, 13-525 April 29, 2013 Page 3 § 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. (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. Confidential Advice, 13-525 April 29, 2013 Page 4 (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. (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, Confidential Advice, 13-525 April 29, 2013 Page 5 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; and individuals whose recommendations are an inherent and recurring part of their positions. See, e.g., Reese/Gilliland, Opinion 05- 005. Your specific questions shall now be addressed. In response to your first and third specific questions, you are advised that as an A, a D, or an E with the Program, you would be considered a public employee subject to the Ethics Act. In each such position, you have or would have the ability to take or recommend official action with respect to subparagraph (5) within the definition of “public employee” as set forth in the Ethics Act, 65 Pa.C.S. § 1102. The following duties and authority of your current position establish your status as a public employee: [list of certain duties and responsibilities]. The following duties and authority of the position of a D would establish your status as a public employee in that position: [list of certain duties and responsibilities]. The following duties and authority of the position of an E would establish your status as a public employee in that position: [list of certain duties and responsibilities]. The foregoing duties/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). In response to your second and fourth specific questions, you are advised as follows. The same restrictions relative to your private G practice would apply to you as a D or an E as would apply to you if you would accept a position as either an I or a J with the Program. As noted in Confidential Advice, 13-516, Section 1103(a) of the Ethics Act would impose restrictions upon you in any capacity in which you would be a public employee, rather than in your private capacity(ies). Therefore, Section 1103(a) of the Ethics Act would not prohibit you from accepting referrals for new clients for your private G practice from the Company and/or other Ms and/or other sources (excluding the Program) and receiving N for the same, where your actions would be taken solely in your private Confidential Advice, 13-525 April 29, 2013 Page 6 capacity and would not involve any use of the authority of your public position or confidential information received by being in your public position. 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: As an A, a D, or an E with the B 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. As noted in Confidential Advice, 13-516, Section 1103(a) of the Ethics Act would impose restrictions upon you in any capacity in which you would be a public employee, rather than in your private capacity(ies). Therefore, Section 1103(a) of the Ethics Act would not prohibit you from accepting referrals for new clients for your private G practice from a company named [name of company] and/or other Ms and/or other sources (excluding the Program) and receiving N for the same, where your actions would be taken solely in your private capacity and would not involve any use of the authority of your public position or confidential information received by being in your public position. 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