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HomeMy WebLinkAbout90-528 HarbachDear Mr. Harbach: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 26, 1990 Mr. Douglas P. Harbach 90-528 Pennsylvania NEW START 219 State Street Harrisburg, PA 17101 Re: Public Employee /Official, Legislative District Assistant, New Employment, Lobbyist. This responds to your letter of February 9, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether a legislative district assistant is a "public employee" under the Public Official and Employee Ethics Law so as to be subject any restrictions following the termination of his employment. Facts: From September 1984 through January 1990 you were employed as District Assistant for State Representative Jerry W. Coy in Chambersburg. You intend to register as a lobbyist in Pennsylvania and seek a ruling as to what restrictions would apply to you under the Public Official and Employee Ethics Law. A job description has been requested relative to your duties. Although no formal job description has been received, information has been supplied which indicates that your duties consist of constituent contacts, telephone responses, preparation of press releases, preparation of letters at the direction of the State Representative and other related duties. Discussion: In determining whether you are a "public employee" subject to the provisions of the Public Official and Employee Ethics Law, we must rely upon the above information which has been provided relative to your duties and responsibilities. This advice is issued based upon the expressed assumption that the foregoing information constitutes a comprehensive description of your duties. The initial question to be answered is whether you are to be e Mr. Douglas Harbach Page 2 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. 5402. "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. Based upon the definition of "public employee ", the supplied information 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 the supplied 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 ". Therefore, since you are not a public employee based upon the supplied information, the Ethics Law would not restrict your activities following your termination of service subject to the qualification that Section 3(b) and 3(c) of the Ethics Law applies 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 Mr. Douglas Harbach Page 3 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. Reference is made to these provisions of the law not to imply that there has 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 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 District Assistant with the Office of Representative Coy, you are not to be considered a public employee as defined in the State Ethics Law. Accordingly, you would not be restricted in your activities following termination of service with State Representative Coy. 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. 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 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 §2.12. Sj erely, Vincent . Dopko, Chief Counsel