HomeMy WebLinkAbout17-567 ConfidentialSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1 -800- 932 -0936
ADVICE OF COUNSEL
October 13, 2017
To the Requester:
17 -567
This responds to your letter dated August 20, 2017, by which you requested a
confidential advisory from the Pennsylvania State Ethics Commission ( "Commission ").
Issue: Whether, as an A for Commonwealth Agency B, you would be considered
blic employee" subject to the Public Official and Employee Ethics Act (`.Ethics
Act')), 65 Pa.C.S. § 1101 et sgq., and the Regulations of the State Ethics Commission,
51 Pa. Code § 11.1 et seq., such that upon termination of your employment with
Commonwealth Agency, the restrictions of Section 11 03(g) of the Ethics Act would be
applicable to you.
Facts: You request a confidential advisory from the Commission based upon
Tmitted facts that may be fairly summarized as follows.
You are currently employed as an A with Commonwealth Agency B. You have
submitted a copy of a job description (the "Job Description ") for your position with
Commonwealth Agency B, which document is incorporated herein by reference.
Per the Job Description, your duties and responsibilities include the following:
[list of certain duties and responsibilities].
Job Description, at 1.
You will be leaving your employment with Commonwealth Agency B and
beginning employment as a C with D.
Based upon the above submitted facts, you seek guidance as to whether, in your
current position as an A with Commonwealth Agency B, you would be considered a
"public employee" as that term is defined in the Ethics Act, such that upon termination of
employment with Commonwealth Agency B, you would be subject to the post -
employment restrictions of Section 1103(g) of the Ethics Act. In particular, you ask
whether you would be prohibited from representing D on any matter before
Commonwealth Agency B for one year following termination of your employment with
Commonwealth Agency B.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(l 1) of
e Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester
FAX: (717) 787 -0806 0 Web Site: www.ethics. state, pa us 0 e -mail: ethics a state.pa.us
Confidential Advice, 17 -567
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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.
In responding to your inquiry, the threshold question to be addressed is whether,
in your current position as an A with Commonwealth Agency B, you would be
considered a "public employee" subject to the Ethics Act.
The Ethics Act defines the term "public employee" as follows:
§ 1102. Definitions
"Public employee." Any individual em .ployed by the
Commonwealth or a political subdivision who is responsible
for taking or recommending official action of a nonministerial
nature with regard to:
ill 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 hereof 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.
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(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.
(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.
(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,
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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 employee" and the related regulatory criteria
to the submitted facts as to the duties of your current position, the necessary conclusion
is that in your capacity as an A with Commonwealth Agency B, you are 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, 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 Ethics Act's definition of the term "public employee."
The post - employment restrictions of Section 1103(g) of the Ethics Act only apply
to former public officials /public employees:
§ 1103. Restricted activities
(g) Former official or employee. - -No former public
official or public employee shall represent a person, with
promised or actual compensation, on any matter before the
governmental body with which he has been associated for
one year after he leaves that body.
65 Pa-C.S. § 1103(g).
Because the duties and responsibilities of your current position would not bring
you within the definition of "public employee" as set forth in the Ethics Act, Section
1103(8) of the Ethics Act would not be applicable to you upon termination of your
employment as an A with Commonwealth Agency B and would not restrict you with
regard to representing your new employer, D, on matters before Commonwealth
Agency B.
The only provision of the Ethics Act that applies to you is Section 1103(b), which
applies to everyone. For your information, Sections 1103(b) and 1103(c) of thne Ethics
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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 any 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 your current capacity as an A
with ommonwealth Agency B, you are 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. Consequently, Section 1103(g) of the Ethics Act would not be
applicable to you upon termination of your employment as an A with Commonwealth
Agency B and would not restrict you with regard to representing your new employer, D,
on matters before Commonwealth Agency B. 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 writingg and must be actual!
received at the Commission within thirty (30) days of the date of this
Advice pursuant to 51 Pa. Code § 13.2(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,
R . Hittie
Chief Counsel