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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