HomeMy WebLinkAbout17-500 HafnerA
I
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
January 10, 2017
To the Requester:
Mr. C.J. Hafner, II
Chief Counsel
Democrat Legal Staff
Senate of Pennsylvania
Dear Mr. Hafner:
17 -500
This responds to your letter dated November 18, 2016, by which you requested
an advisory from the Pennsylvania State Ethics Commission ("Commission").
Issue: Whether the Director of Executive Planning (Scheduling) for Pennsylvania
tae Senator Da lin Leach would be considered a "public employee" subject to the
Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et sew., and
the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et se g., and if so,
whether the Ethics Act would impose prohibitions or restrictions upon such individual
with regard to serving as a Democrat Committeeperson.
Facts: You have been authorized by Zak Pyzik ( "Mr. Pyzik ") to request an
a visary from the Commission on his behalf. You have submitted facts that may be
fairly summarized as follows.
Mr. Pyzik is currently employed as the Director of Executive Planning
(Scheduling) for Pennsylvania State Senator D%lin Leach ( "Senator Leach ") in Senator
Leach's legislative district office. You have submitted a copy of a Job Description for
Mr. Pyzik's position, which document is incorporated herein by reference. Per the Job
Description, the Director of Executive Planning (Scheduling) is primarily responsible for
managing the Senator's daily schedule.
Per the Job . Description, the duties of the Director of Executive Planning
(Scheduling) are as follows:
Job Duties:
• Prepare and update the Senator's calendar, provide him with
directions, maintain his contact list, and be responsible for
reservation s /RSVPs.
• Review and research invitations, i.e. identify audience dynamic and
size, contact information, appropriate wardrobe, citations needed,
other elected officials attending, etc.
• Seek new high - profile opportunities for the Senator to speak.
FAX: (717) 787 -0806 • Web Site: www,ethics.state.pa.us a e -mail: ethicsPstate.pa.us
Hafner, 17 -500
auary 10, 2017
Page 2
Work closely with the District Office Director, Director of
Constituent Services, and Press Relations Manager to
manage the daily schedule, ensure proper staffing, and
prepare talking points or speeches if necessary.
Attend meetings and events on behalf of or with the Senator,
when necessary.
Prepare and send out the email blast highlighting news in
the State Senate and in the District every three weeks.
,lob Description. Director of Executive Planning ( Schedulin
You assert that in his capacity as the Director of Executive Planning (Scheduling)
for Senator Leach, Mr. Pyzik is not responsible for taking or recommending official
action of a non - ministerial nature that would bring him within the definition of the term
"public employee" as set forth in the Ethics Act.
Mr. Pyzik has an oppportunity to serve as a Democrat Committeeperson in Lower
Merion Township and Narbeth Borough, which are adjoining municipalities in
Montgomery County, Pennsylvania.
Based upon the above submitted facts, you ask whether, in his capacity as the
Director of Executive Planning (Scheduling) for Senator Leach, Mr. Pyzik is a public
employee subject to the Ethics Act, and if so, whether the Ethics Act would impose any
prohibitions, restrictions, or limitations upon Mr. Pyzik if he would accept the positron of
Democrat Committeeperson.
Discussion. It is initially noted that pursuant to Sections 1107(10) and 1107(1'1) 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 nonministenal
nature with regard to:
III 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.
Hafner, 17 -500
January 10, 2017
Page 3
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.
(1=) 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.
(l) 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
Hafner, 17 -500
aT nuary 10, 2017
Page 4
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.
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 persons 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 employyee" and the related regulatory criteria
to the submitted facts as to the dunes of Mr. Pyzik's current position, the necessary
conclusion is that in his capacity as the Director of Executive Planning (Scheduling) for
Senator Leach, Mr. Pyzik is not to be considered a "public employee" as that term is
defined in the Ethics Act. Based upon an objective review of the Job Description, Mr.
Pyzik is 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 only provision of the Ethics Act that applies to Mr. Pyzik is Section 1103�b),
which applies to everyone. For your information, Sections 1103(b) and 1103(c) of he
Hafner, 17 -500
a uary 10, 2017
Page 5
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 an 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 his current capacity as the
Director of Executive Planning (Scheduling) for Pennsylvania State Senator Da Ii
Leach, Zak Pyzik is 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.
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
Advice pursuant to 51 Pa. Code § 13.2(h), The appeal may be
received at the Commission by hand delivery, United States marl,
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,
4�- M,WO�E
Robin M. Hittie
Chief Counsel