HomeMy WebLinkAbout17-529 Confidential1
STATE ETHICS COMMISSION
309 FINANCE BUILDING
PO. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
(717) 783 -1610
1 -800- 932 -0936
ADVICE OF COUNSEL
May 1, 2017
To the Requester:
ImInal
This responds to your letter dated March 24, 2017, styled as a Financial Interest
Disclosure appeal, which will be treated as a request for a confidential advisory from the
Pennsylvania State Ethics Commission ("Commission").
Issue: Whether, as an A for Commonwealth Entity B, you would be considered a
pudic employee" subject to the Public Official and Employee Ethics Act (the "Ethics
Act"), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission,
51 Pa. Code § 11.1 et seq., and particularly, the requirements for filing Statements of
Financial Interests.
Facts: You seek a determination as to whether, in your capacity as an A for
Uo—mmonwealth Entity B, you are a "public employee" subject to the Ethics Act and the
Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code §
11.1. You specifically question whether you are required to file Statements of Financial
Interests ( SFIs ).
You have submitted a copy of a type of document] ( "the Job Description ") for
your position as an A for Commonwea th Entity B, which document is incorporated
herein by reference.
Per the Job Description, you perform [certain work]. Your job duties and
responsibilities include:
[list of certain duties and responsibilities].
Job Description, at 1--2.
You note that the Regulations of the State Ethics Commission provide that
Ein C positions are generally not considered public employees. You state that
because you perform [type of work], there would be a [type of concern] if you would be
required to file SFIs.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
e 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
FAX: (717) 787 -0806 e Web Site: www.ethics.state.pa.us 0 e -mail: ethics (c state.pa.us
Confidential Advice, 17 -529
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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 discllosed 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 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.
(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.
Confidential Advice, 17 -529
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Page 3
(G) The individual makes final technical recommen-
dations.
(H) The individual's recommendations or actions are
an inherent and recurring part of his position.
(1) 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.
(l=) 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.
Confidential Advice, 17-529
May
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The following terms 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.
"Nonrninisteriai actions." An action in which the
person exercises his own judgment as to the desirability of
the action taken.
65 Pa.C.S. § 1102.
Status as a "public employee" subject to the Ethics Act is determined by an
objective test. The objective test applies the Ethics Act's definition of the term "public
employee" and the related regulatory criteria to the powers and duties of the position
itself. Typically, the powers and duties of the position are established by objective
sources that define the position, such as the job description, job classification
specifications, and organizational chart. The objective test considers what an individual
has the authority to do in a given position based upon these objective sources, rather
than the variable functions that the individual may actually perform in the position. See,
Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion
04-002; ienvold, pinion 4 -001; Shearer, Opinion 03 -011. The Commonwealth Court
of Pennsylvania ania h specifically considered and approved this Commission's objective
test and has directed that coverage under the Ethics Act be construed broadly and that
exclusions under the Ethics Act be construed narrowly. See, Qua lia v. State Ethics
Commission, 986 A.2d 974 (Pa. Cmwlth. 2010), amended l y, 201 a. ommw.
8 Pa. C mwlth. January 5, 2010), allocatur denied, 607 Pa. 708, 4 A.3d 1056 (2010);
Phillips, supra.
The first portion of the statutory definition of "public employee" includes
individuals with authority to take or recommend official action of a nonministerial nature.
65 Pa.C.S. § 1102. Likewise, the regulatory criteria for determining status as a public
employee, as set forth in 51 Pa. Code § 11.1( "public employee ")ii), include not only
individuals with authority to make final decisions but also individuals with authority to
forward or stop recommendations from being sent to final decision- makers; individuals
who prepare or supervise the preparation of final recommendations; individuals who
make final technical recommendations; and individuals whose recommendations are an
inherent and recurring part of their positions. See, e.g., Reese /Gilliland, Opinion 05-
005.
In applying the objective test in the instant matter, the necessary conclusion is that,
in your capacity as an A for Commonwealth Entity B, you are a "public employee" subject
to the Ethics Act and the Regulations of the Commission, and in particular, the
requirements for filing SFIs pursuant to the Ethics Act. Cf., [citations].
It is clear that as an A for Commonwealth Entity B, you have the ability to take or
recommend official action of a nonministerial nature with respect to subparaggrapph (4)
within the definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. §
1102. Specifically, your authority to: [perform certain activities], would be sufficient to
establish yyour status as a "public employee" subject to the Ethics Act. The foregoing
duties /authority would also meet the criteria for determining your status as a public
employee under the Regulations of the State Ethics Commission, specifically at 51 Pa.
Code § 11. 1, "public employee," subparagraphs (i) and (ii).
Confidential Advice, 17 -529
May 5
Therefore, you are advised that as an A for Commonwealth Entity B, you are a
"public employee" subject to the provisions of the Ethics Act and the Regulations of the
State Ethics Commission, and in particular, the requirements for filing SFIs pursuant to
the Ethics Act.
It is parenthetically noted that in Shearer, supra, the Commission addressed
concerns raised by a detective sergeant—whose particular duties and responsibilities
brought him within the Ethic's Act's definition of "public employee " —as to SFIs being
publicly available. The Commission stated:
Regarding your final argument that you have the right
to shield personal information from the public out of concern
of possible reprisals, it is the law that public officials /public
employees are required to file. The law may not and does
not carve out exceptions for individuals just because they
work in certain job areas, like in the Department of
Corrections or State Police. In short, filing is a concomitant
part of public service.
Shearer, supra, at 5.
Conclusion: As an A for Commonwealth Entity B you are a "public employee"
subject o e Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101
e sew., and the Regulations of the Pennsylvania State Ethics Commission, 51 Pa. Code
t 11.1 et seg., and in particular, the requirements for filing Statements of Financial
Interests pursuant to the Ethics Act. Accordingly, you must file a Statement of Financial
Interests each year in which you hold the aforesaid position and the year following
termination of such service.
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 writingg and must be act�uall�
received at the Commission within thirty (30) days of the date of this
Advice pursuant to 51 Pa. Code § 712(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,
4- j / 1 ✓
Robin M. Hittie
Chief Counsel