HomeMy WebLinkAbout13-538 Hafner
ADVICE OF COUNSEL
May 31, 2013
C.J. Hafner, II
Chief Counsel
Democrat Legal Staff
535 East Main Capitol
Harrisburg, PA 17120
13-538
Dear Mr. Hafner:
This responds to your letters of April 5, 2013, and April 11, 2013, and your email
of May 30, 2013, by which you requested an advisory from the Pennsylvania State
Ethics Commission.
Issue:
Whether a Director of Community Affairs for a Pennsylvania State Senator
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, 51 Pa. Code § 11.1 et seq., and if so, whether the Ethics Act would
impose any prohibitions or restrictions upon such individual with regard to serving as a
member of the board of directors of each of two non-profit social services agencies.
Facts:
You request an advisory from the Pennsylvania State Ethics Commission
on behalf of Laura Guncheon (“Ms. Guncheon”). You have submitted facts that may be
fairly summarized as follows.
Ms. Guncheon is employed as the Director of Community Affairs for
Pennsylvania State Senator Sean Wiley (“Senator Wiley”). You have submitted a copy
of a Job Description for Ms. Guncheon’s position, which document is incorporated
herein by reference. Per the Job Description, the work of the Director of Community
Affairs can include the management of project budgets. The Job Description further
provides, in pertinent part, as follows:
Specific Job Functions
1. Coordinate the activities of the Northwest
Pennsylvania Delegation to include expectations,
communications, tasking, and event management.
2. Coordinate all Senate Advisory Committees, their
respective communications, meetings, tasking, and
feedback.
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May 31, 2013
Page 2
3. Liaison between the Erie Office, Constituents, and
Harrisburg regarding all requests for Grant and
Project Funding.
4. Represent the Erie Office on designated Boards of
Directors, Advisory Boards, and Committees as
deemed necessary by the Senator or Chief of Staff.
5. Develop and coordinate all projects that are approved
by the Senator or Chief of Staff.
6. Communicate with the Senator, Chief of Staff, and all
Directors, to insure consistency with all messaging
and written communications coming out of the Erie
Office.
7. Communicate with the Senator, Chief of Staff, and all
Directors to insure the accuracy and integrity of the
Senator’s schedule of Community appearances and
engagements.
8. Work with the Staff of the Erie and Harrisburg Office
to properly respond to Constituents[’] needs.
9. Perform any other related duties as deemed
necessary by the Senator or Chief of Staff.
Job Description, Director of Community Affairs.
You state that Ms. Guncheon’s responsibilities include being the liaison between
the Office of Senator Wiley and various profit and not for profit community groups,
engaging in outreach activities and projects in the greater Erie community, and being
fully aware of the needs of the community and how those needs interface with Senator
Wiley. You state that Ms. Guncheon is the portal for requesting grant, project and
venture support from Senator Wiley. Ms. Guncheon also coordinates, maintains and
th
convenes the numerous Senatorial Advisory Committees in the 49 Senatorial District.
Ms. Guncheon has been asked to serve on the Board of Directors of Family
Services of NW PA (“Family Services”), which is a private, non-profit 501(c)(3)
corporation located in Erie, Pennsylvania. The Family Services Board of Directors is
composed of fourteen volunteers who are not compensated for their service. Family
Services receives 85 to 90 percent of its funding through county, state or federal
government programs and uses licensed social workers, professional counselors and
master level family therapists to provide a variety of social services to approximately
7,000 families in the northwestern Pennsylvania region.
Ms. Guncheon has also been asked to serve on the Board of Directors of St.
Martin Center (“Center”), which is a non-profit 501(c)(3) corporation and a Catholic
Charities agency located in Erie, Pennsylvania. The Board of Directors of the Center is
composed of twelve volunteers who are not compensated for their service. The Center
receives approximately nine percent of its annual budget through state programs and
provides social services as well as housing service, foreclosure prevention and early
learning programs.
Based upon the above submitted facts, you ask whether, in her capacity as the
Director of Community Affairs for Senator Wiley, Ms. Guncheon is a public employee
subject to the Ethics Act.
Hafner, 13-538
May 31, 2013
Page 3
You pose the following additional specific questions to be addressed if, in the
aforesaid capacity, Ms. Guncheon is a public employee subject to the Ethics Act:
(1) Whether the Ethics Act would permit Ms. Guncheon to accept a position
on the Board of Directors of Family Services and/or a position on the
Board of Directors of the Center, and if so, what limitations or restrictions
would the Ethics Act impose upon Ms. Guncheon in her capacity as a
public employee and in her capacity as a Member of such Board(s); and
(2) What additional reporting requirements would the Ethics Act impose upon
Ms. Guncheon if she would accept a position as a Member of the
aforesaid Board(s).
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:
§ 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.
Hafner, 13-538
May 31, 2013
Page 4
(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.
(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.
Hafner, 13-538
May 31, 2013
Page 5
(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 (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.
In applying the objective test in the instant matter, the necessary conclusion is
that, in her capacity as the Director of Community Affairs for Senator Wiley, Ms.
Guncheon is a “public employee” subject to the Ethics Act and the Regulations of the
Commission.
It is clear that in her capacity as the Director of Community Affairs for Senator
Wiley, Ms. Guncheon has 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. Ms. Guncheon’s duties/authority to: (1) manage project budgets; (2)
act as liaison between the Erie Office, constituents, and Harrisburg regarding all
requests for grant and project funding; and (3) represent the Erie Office on designated
Hafner, 13-538
May 31, 2013
Page 6
Boards of Directors and Committees as deemed necessary by the Senator or Chief of
Staff, would be sufficient to establish Ms. Guncheon’s status as a public employee
subject to the Ethics Act. The foregoing duties/authority would also meet the criteria for
determining Ms. Guncheon’s 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 are defined in the Ethics Act as follows:
§ 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
Hafner, 13-538
May 31, 2013
Page 7
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.
Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is
prohibited from using the authority of public office/employment or confidential
information received by holding such a public position for the private pecuniary benefit
of the public official/public employee himself, any member of his immediate family, or a
business with which he or a member of his immediate family is associated.
The definition of the term “business” as set forth in the Ethics Act includes a non-
profit corporation. Rendell v. State Ethics Commission, 603 Pa. 292, 983 A.2d 708
(2009).
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.
Having established the above general principles, your remaining questions are
addressed as follows.
You are advised that Section 1103(a) of the Ethics Act would not prohibit Ms.
Guncheon from serving on the Board of Directors of Family Services and/or on the
Board of Directors of the Center.
If Ms. Guncheon would serve on the Board of Directors of Family Services,
Family Services would be considered a business with which Ms. Guncheon is
associated, and pursuant to Section 1103(a) of the Ethics Act, in her public capacity as
the Director of Community Affairs for Senator Wiley, Ms. Guncheon would generally
have a conflict of interest in matters that would financially impact Family Services. If Ms.
Guncheon would serve on the Board of Directors of the Center, the Center would be
considered a business with which Ms. Guncheon is associated, and pursuant to Section
1103(a) of the Ethics Act, in her public capacity as the Director of Community Affairs for
Senator Wiley, Ms. Guncheon would generally have a conflict of interest in matters that
Hafner, 13-538
May 31, 2013
Page 8
would financially impact the Center. In each instance of a conflict of interest, Ms.
Guncheon would be required to abstain from participation in her public capacity.
Section 1103(a) of the Ethics Act would only restrict Ms. Guncheon in her
capacity as a public employee. The only provision of the Ethics Act that would apply to
Ms. Guncheon as a Member of the Board of Directors of Family Services and/or a
Member of the Board of Directors of the Center 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.
In response to your final question, you are advised that in addition to complying
with the other substantive disclosure requirements for Statements of Financial Interests
set forth in Section 1105 of the Ethics Act, 65 Pa.C.S. § 1105, Ms. Guncheon would be
required to disclose on her annual Statement of Financial Interests her membership on
the Board of Directors of Family Services and/or the Board of Directors of the Center as
an “office, directorship or employment of any nature whatsoever in any business entity”
pursuant to Section 1105(b)(8) of the Ethics Act, 65 Pa.C.S. § 1105(b)(8).
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 the Director of Community Affairs for Pennsylvania State
Senator Sean Wiley (“Senator Wiley”), Laura Guncheon (“Ms. Guncheon”) is a “public
employee” subject to the provisions of the Public Official and Employee Ethics Act
(“Ethics Act”), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics
Commission, 51 Pa. Code § 11.1 et seq. Based upon the submitted facts that: (1) Ms.
Guncheon has been asked to serve on the Board of Directors of Family Services of NW
PA (“Family Services”), which is a private, non-profit 501(c)(3) corporation located in
Erie, Pennsylvania; (2) the Family Services Board of Directors is composed of fourteen
volunteers who are not compensated for their service; (3) Family Services receives 85
to 90 percent of its funding through county, state or federal government programs and
uses licensed social workers, professional counselors and master level family therapists
to provide a variety of social services to approximately 7,000 families in the
northwestern Pennsylvania region; (4) Ms. Guncheon has also been asked to serve on
the Board of Directors of St. Martin Center (“Center”), which is a non-profit 501(c)(3)
corporation and a Catholic Charities agency located in Erie, Pennsylvania; (5) the Board
of Directors of the Center is composed of twelve volunteers who are not compensated
for their service; and (6) the Center receives approximately nine percent of its annual
budget through state programs and provides social services as well as housing service,
foreclosure prevention and early learning programs, you are advised as follows.
Section 1103(a) of the Ethics Act would not prohibit Ms. Guncheon from serving
on the Board of Directors of Family Services and/or on the Board of Directors of the
Center. If Ms. Guncheon would serve on the Board of Directors of Family Services,
Family Services would be considered a business with which Ms. Guncheon is
associated, and pursuant to Section 1103(a) of the Ethics Act, in her public capacity as
the Director of Community Affairs for Senator Wiley, Ms. Guncheon would generally
have a conflict of interest in matters that would financially impact Family Services. If Ms.
Guncheon would serve on the Board of Directors of the Center, the Center would be
considered a business with which Ms. Guncheon is associated, and pursuant to Section
Hafner, 13-538
May 31, 2013
Page 9
1103(a) of the Ethics Act, in her public capacity as the Director of Community Affairs for
Senator Wiley, Ms. Guncheon would generally have a conflict of interest in matters that
would financially impact the Center. In each instance of a conflict of interest, Ms.
Guncheon would be required to abstain from participation in her public capacity. The
only provision of the Ethics Act that would apply to Ms. Guncheon as a Member of the
Board of Directors of Family Services and/or a Member of the Board of Directors of the
Center is Section 1103(b), which applies to everyone.
In addition to complying with the other substantive disclosure requirements for
Statements of Financial Interests set forth in Section 1105 of the Ethics Act, 65 Pa.C.S.
§ 1105, Ms. Guncheon would be required to disclose on her annual Statement of
Financial Interests her membership on the Board of Directors of Family Services and/or
the Board of Directors of the Center as an “office, directorship or employment of any
nature whatsoever in any business entity” pursuant to Section 1105(b)(8) of the Ethics
Act, 65 Pa.C.S. § 1105(b)(8). 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