HomeMy WebLinkAbout86-546 HarryMs. Patricia Harry
2Z6 Green Lane Drive
Camp Hill, PA 1 /U11
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
April 3U, 198t
ADVICE OF CUUWSLL
86 -546
Re: Public Employee, Administrative Assistant, Uffice of State Representative
Dear Ms. Harry:
This responds to your letter of April 13, 1966, in which you requested
advice from the State Ethics Commission.
Issue: Wether the Ethics Act presents any restrictions upon your potential
employment toliowiny your termination of service with the Pennsylvania House
of Representatives.
Facts: You serve as the Administrative Assistant with the Office of
Representative L. Eugene Smith, a member of the Pennsylvania House of
Representatives, hereinafter the Office. As such, you are or were primarily
responsible for the performance of clerical duties includiny dictation and
transcribing tapes, typiny and sometimes composiny letters, typiny reports;
answering telephones; yreetiny the public and handling constituent inquiries.
You are also responsible for routing to proper professional staff or state
agencies items forwarded to the Office. You are also responsible for the
followiny:
Workiny in conjunction with field assistants in the member's district,
assistiny with preparation of newsletters and special mailinys, maintaininy
current card file, pi cki n up mail, openiny mail and hand I i ny routine matters;
settiny up meetings, keepiny appointment schedules, arranyiny travel ling
reservations, arranyiny tours of the capitol for constituent yroups, fi liny
correspondence and leyislative materials, orderiny supplies and stationery
thruuyh the duplicating supervisor or orderiny clerk, inserting bills and
daily house calendars for session, recordiny, processing and mailing revenue
work and preparing new members' expense accounts. Yuur duties were pertormed
Ms. Patricia Harry
April 30, 1982
Page 2
under the direction of the Representative. You have advised that you are
terminating your service with the Commonwealth and that you will be seeking a
position in the private sector involving governmental relations. You have
requested the advice of the State Ethics Commission regarding any restrictions
that are placed upon you within the purview of the State Ethics Act.
Discussion: Generally, the Ethics Act provides that:
Section 3. Restricted activities.
(e) No former official or public employee shall represent
a person, with or without compensation, on any matter
before the governmental body with which he has been
associated for one year after he leaves that body.
65 P.S. 403(e).
Within the above provision of law, former public employees are prohibited from
representing another person before their former governmental body for a period
of one year after they leave governmental service. The Commission has issued
a number of opinions which further defined the scope of this restriction. In
the instant situation, the primary question to be answered, however, is
whether or not you are to be considered a "public employee" as that term is
defined in the State Ethics Act. The Act provides as follows:
Section 2. Definitions.
"Public employee." Any individual employed by the
Commonwealth or a political subdivision who is responsible
for taki ng or recommendi ng official action of a
nonmi ni steri al 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.
"Public employee" shall not include individuals who are
employed by the State or any political subdivision thereof
i n teach i ng as di sti ngui shed from admi ni strati ve duties.
65 P.S. 402.
Ms. Patricia Harry
April 30, 1982
Page 3
The regulations of the Commission further provide as follows:
Section 1.1. Definitions.
Public employee - --
(i) The term includes any individual:
(B) who meets the criteria of either subclause
(I) or (II):
(I) The individual is:
( -a -) a person who normally
performs his responsibility in the field
without on -site supervision;
( -b -) the immediate supervisor of a
person who normally performs his
responsibility in the field without
on -site supervision; or
( -c -) the supervisor of any highest
level field office.
(II) The individual is a person:
( -a -) who:
( -1 -) has the authority to
make final decisions;
( -2 -) has the authority to
forward or stop recommendations
from being sent to the person or
body with the authority to make
final decisions;
( -3 -) prepares or
supervises the preparation of
final recommendations; or
( -4 -) makes the final
technical recommendations; and
( -b -) whose recommendations or
actions:
Ms. Patricia Harry
April 30, 1982
Page 4
( -1 -) are an inherent and
recurring part of his position;
and
( -2 -) affect organizations
other than his own organization.
(iv) Persons in the positions listed below are
generally not considered public employes.
(A) City clerks, other clerical staff, road
masters, secretaries, police officers, welfare case
workers, maintenance workers, construction workers,
detectives, equipment operators, and recreation
di rectors.
(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 1.1.
Based upon the definition of "public employee" and in light of your job
description and the classification specifications for your position, as well
as the language in your 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
Act. This conclusion is based upon our objective review of this information
from which it appears that you have not been responsible for taking or
recommendi ng official action of a non -mi nisterial nature with regard to any of
the five categories set forth in the definition listed above for the term
"public employee." We do not believe that this is the type of service that
was intended to be covered by the restrictions set forth in the State Ethics
Act. See Green, 84 -560; Will, 84 -622.
Finally, it is noted that this determination applies to the
administrative assistant position and does not relate to other positions such
as that of legislative assistant. See, e.g., Arts, 85 -561.
Thus, because you do not fall within the classification of the term
public employee, as defined by the State Ethics Act and the regulations of the
State Ethics Commission, you would not be subject to the restrictions set
forth in the State Ethics Act regarding your post employment activities.
There would be no restrictions, therefore, placed upon you in respect to the
activities that you wish to undertake on behalf of a new employer.
Ms. Patricia Harry
April 30, 1982
Page 5
Conclusion: In your position as an Administrative Assistant to a member of
the House of Representatives, you are not to be considered a public employee
as that term i s defi ned i n the State Ethics Act. This speci fic deferral nation
is based upon the job description which was forwarded regarding the work that
you specifically performed. Accordingly, the one year restriction set forth
in Section 3(e) of the State Ethics Act would not be applicable to you.
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 i n 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 made, in
writing, to the Commission within 15 days of service of this Advice pursuant
to 51 Pa. Code 2.12.
JJC /sfd
Si n
o n i o
Gen- al Counsel