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HomeMy WebLinkAbout16-525 Stover ADVICE OF COUNSEL April 25, 2016 April Stover 372 Old York Road New Cumberland, PA 17070 16-525 Dear Ms. Stover: This responds to your letters dated February 26, 2016, and March 4, 2016, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”). Issue: Whether, as a Clerk Typist 2 for the Pennsylvania Liquor Control Board (“PLCB”), 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, 51 Pa. Code § 11.1 et seq., such that upon termination of your employment with the PLCB, the restrictions of Section 1103(g) of the Ethics Act would be applicable to you. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. You are currently employed as a Clerk Typist 2 with the PLCB. You have submitted a copy of a position description (the “Position Description”) for an individual (“the Individual”) who was previously employed in your current position, which document is incorporated herein by reference. You state that you have crossed off duties on the Position Description which the Individual took with her when she moved to a different department, and you assert that the remaining duties listed on the Position Description are those which are applicable to your current position. A copy of the job classification specifications for the position of Clerk Typist 2 (job code 00220) has been obtained and is also incorporated herein by reference. Per the Position Description, your duties and responsibilities include the following:  Serving as the secretary to the Director of the Bureau of Marketing Programs (“Bureau”) within the PLCB;  Maintaining the Director’s calendar and scheduling appointments and meetings;  Participating in meetings and preparing agendas, meeting minutes, and other materials when required; Stover, 16-525 April 25, 2016 Page 2  Organizing and maintaining all office files, materials, and manuals;  Reviewing, sorting, and distributing mail, creating reports and various correspondence, and accepting telephone calls and visitors;  Creating documents to purchase supplies, equipment, services, and the like by referring to catalogues, state contracts and other sources to obtain prices, specifications and related information;  Arranging for travel, hotel and state car requests for the Director and staff, calculating travel expenses to ensure compliance with PLCB and Commonwealth policies, and completing monthly travel expense vouchers; and  Assisting in the organization and implementation of various events coordinated by the Bureau by, inter alia, procuring materials for displays, preparing Quick Copy and job order requests for graphic arts on appropriate forms, and assisting in the gathering of data for events to finalize billing or evaluate the success of the events. Position Description, at 1-2. You state that your role in the process of procuring materials is purely clerical. You state that you create requisitions as directed by PLCB marketing staff by entering the items requested into a software program. Per the job classification specifications under job code 00220, a Clerk Typist 2:  Performs clerical work of moderate complexity;  Utilizes specialized clerical equipment;  Performs skilled typing and proofreading of various documents;  Organizes and types materials and sets up formats and layouts for printing booklets, pamphlets, and the like for submission to a publisher or computer center;  Functions as a lead worker by distributing and interpreting work assignments, providing assistance, conducting on-the-job training, and reviewing the unit’s work for adherence to processing standards;  Answers written inquiries relating to the status of certain aspects of an organization’s functions; and  Determines supply needs for the mailroom and prepares supply requisitions. Job Classification Specifications, Job Code 00220, at 1-2. You are interested in potential employment with inVision Marketing in the position of Territory Manager – East, in which capacity you would schedule in-store tastings for PLCB stores on the PLCB intranet site and contact PLCB stores directly via phone to transfer products for in-store tastings. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you following termination of your employment with the PLCB. In Stover, 16-525 April 25, 2016 Page 3 particular, you ask whether you would be permitted to work as a Territory Manager – East for inVision Marketing. 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 responding to your inquiry, the threshold question to be addressed is whether, in your current position as a Clerk Typist 2 with the PLCB, you would be considered a “public employee” subject 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. Stover, 16-525 April 25, 2016 Page 4 (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. (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: Stover, 16-525 April 25, 2016 Page 5 (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. The following terms are relevant to your inquiry and are defined in the Ethics Act as follows: § 1102. Definitions "Ministerial action." An action that a person performs in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of the person’s own judgment as to the desirability of the action being taken. "Nonministerial actions." An action in which the person exercises his own judgment as to the desirability of the action taken. 65 Pa.C.S. § 1102. In applying the definition of "public employee" and the related regulatory criteria to the submitted facts as to the duties of your current position, the necessary conclusion is that in your capacity as a Clerk Typist 2 with the PLCB, you are not to be considered a "public employee" as that term is defined in the Ethics Act. Based upon an objective review of the Position Description and the job classification specifications, you are not responsible for taking or recommending official action of a non-ministerial nature with regard to any of the five categories set forth in the Ethics Act’s definition of the term “public employee.” The post-employment restrictions of Section 1103(g) of the Ethics Act only apply to former public officials/public employees: § 1103. Restricted activities (g) Former official or employee.-- No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 Pa.C.S. § 1103(g). Because the duties and responsibilities of your current position would not bring you within the definition of “public employee” as set forth in the Ethics Act, Section 1103(g) of the Ethics Act would not be applicable to you upon termination of your employment as a Clerk Typist 2 with the PLCB and would not restrict you with regard to working as a Territory Manager – East for inVision Marketing. Stover, 16-525 April 25, 2016 Page 6 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; 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, in your current capacity as a Clerk Typist 2 with the Pennsylvania Liquor Control Board (“PLCB”) under job code 00220, you are not to be considered a “public employee” as that term is defined by the Public Official and Employee Ethics Act ("Ethics Act”), 65 Pa.C.S. § 1101 et seq. Consequently, Section 1103(g) of the Ethics Act would not be applicable to you upon termination of your employment as a Clerk Typist 2 with the PLCB and would not restrict you with regard to working as a Territory Manager – East for inVision Marketing. Section 1103(b) of the Ethics Act applies to everyone. 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