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HomeMy WebLinkAbout90-516 MacAvoySTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 5, 1990 Ms. Roxann N. MacAvoy 90 -516 Dechart, Price & Rhoads 20 N. Market Square Harrisburg, PA 17101 Re: Public Employee /Official, FIS, Administrative Assistant, House of Representatives. Dear Ms. MacAvoy: This responds to your letter of January 22, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether you as Administrative Assistant with the Republican Caucus of the House of Representatives are to be considered a "public employee" or "public official" under the State Ethics Law, and therefore, required to comply with the financial reporting and disclosure provisions of the State Ethics Law. Facts: You have resigned your position with the House of Representatives effective December 31, 1989 as an Administrative Assistant to the Republican Caucus. You served under the Director of Research and reported directly to Mr. Otis W. Littleton and indirectly to Representative Samuel E. Hayes, Jr., the Republican Whip. As Administrative Assistant to the Director of Research, you assisted him in the daily operations of the office and directly supervised aides, secretaries and three pages who reported to him. Your duties and responsibilities included scheduling appointments for the Director and arranging travel for his speaking engagements, supervising the clerical staff, monitoring and improving staff leave, maintaining and obtaining journals and publications, coordinating computer training for the staff, reviewing and approving requests for supplies and equipment and finally reviewing and assigning constituent work to the appropriate research analyst or standing committee. You have not served as a research analyst for the Republican members of a committee nor have you advised the Republican Caucus with respect to matters of legislation. Because of your duties and Page 2 responsibilities you were not required to file a Statement of Financial Interests. On January 2, you became employed by Deckert, Price and Rhoads wherein your duties include the collection and dissemination of information concerning matters before the General Assembly and other governmental agencies, legislative research and analyst, contacting the firms clients, representatives of trade associates and other individuals concerning governmental matters, record keeping and potentially lobbying members of the General Assembly. After noting that you report to Joe D. Holston, Jr., you request an advisory as to whether you are a public employee under the Public Official and Employee Ethics Law. Discussion: You do not believe your duties and responsibilities are within the definition of "public employee" or "public official". We note that, for the sake of this response, we are relying primarily on your letter since no job description and /or classification specification has been provided. The primary question to be answered is whether you are to be considered a "public employee" as that term is defined in the State Ethics Law: Section 2. 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 minimus nature on the interests of any person. 65 P.S. S402. "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. 65 P.S. 5402. Page 3 Based upon the definition of "public employee" and in light of the language in the request for advice, and the explanation of your job as set forth therein, we conclude that you are not to be considered a "public employee" as that term is defined in the State Ethics Law. This conclusion is based upon our objective review of this information from which it appears that 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 definition listed above for the term "public employee ". Thus, because you are not within the classification of the term "public employee ", you would not be subject to the financial reporting and disclosure requirements of the State Ethics Law. Accordingly, you would not be required to file the Statement of Financial Interests for the years in which you were employed. Since you were not a public employee as that term is defined under the Ethics Law, the proposed activity would not be restricted by the Ethics Law subject to the qualification that Sections 3(b) and 3(c) apply to everyone. Section 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: In the position of Legislative Assistant with the House of Representatives, you are not to be considered a public employee as defined in the State Ethics Law. Accordingly, you would neither be subject to the reporting and disclosure requirements of the State Ethics Law nor would you be restricted in your new position of employment. Sections 3(b) and (c) of the Ethics Law are applicable to everyone. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(9)(ii), this 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, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. Page 4 such. This letter is a public record and will be made available as Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, vviAbA Vincent % J � . Dopko, Chief Counsel