HomeMy WebLinkAbout18-507 HenryPHONE: 717 -783 -1610
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To the Requester:
Ms. Lisa S. Henry
Dear Ms. Henry:
ADVICE OF COUNSEL
February 27, 2018
FACSIMILE: 717- 787 -0806
WEBSITE: www.ethics,pa.gov
18 -507
This responds to your letter dated January 2, 2018, and your email dated
February 25, 2018, by which you requested an advisory from the Pennsylvania State
Ethics Commission ("Commission").
).
Issue: Whether, as an Administrative Assistant 1 for the Pennsylvania
impartment of Transportation ( "PennDOT ") under job code 08210, you would be
considered a "public employee" subject to the Public Official and Employee Ethics Act
"Ethics Act "), 65 Pa.C.S. § 1101 et seg., and the Regulations of the State Ethics
ommission, 51 Pa. Code § 1'I T et seq., such that upon termination of your
employment with PennDOT, the restrictions of Section 1103(g) of the Ethics Act would
be applicable to you.
Facts: You request an advisory from the Commission based upon submitted
acfs that may be fairly summarized as follows.
You are currently employed as an Administrative Assistant 1 for PennDOT in
Engineering District 8 -0. You Have submitted a copy of your official Commonwealth
position description, which document is incorporated herein by reference. A copy of the
job classification specifications for the position of Administrative Assistant 1 (job code
08210) has been obtained and is also incorporated herein by reference.
Per your official Commonwealth position description, you provide confidential
administrative and secretarial support to the District Executive and the Community
Relations and Quality Coordinators. Your duties and responsibilities include the
following;
• Providing lead work direction to other District clerical staff in matters of office
operations and administration;
Assisting in setting District customer service standards for proper handling of
visitors, telephone calls, correspondence preparation and routing, and follow -up
procedures;
Coordinating and serving as leader and contact person for special programs
such as SECA and employee recognition awards programs;
Henr 18 -507
February 27, 2018
Page 2
• Keeping the District Executive's calendar and daily itinerary;
• Researching, copying, organizing and distributing back -up materials for the
District Executive;
• Making travel arrangements and preparing the District Executive's travel expense
voucher;
• Helping the Community Relations Coordinator with the provision of routine
legislative, media and public information and providing clerical and administrative
support on unusual or complex projects; and
• Researching information and drafting correspondence for the District Executive's
signature, taking and transcribing dictation from the District Executive and staff
on sensitive confidential matters, and preparing file notes or minutes of special
meetings.
Position Description, at 1 -2.
Per the job classification specifications under Job code 08210, an Administrative
Assistant 1 is responsible for performing a variety of administrative staff assignments,
with specific examples of such work including the following:
• Studies and analyzes operational procedures and prepares detailed and
comprehensive reports of findings and recommendations;
• Conducts research and studies in connection with the development and
evaluation of agency programs;
• Performs occasional public relations duties and assists in the preparation of
news releases and speeches;
• Reviews and replies to routine correspondence and disposes of other
administrative details as directed;
• Assists administrative superiors in establishing and maintaining cooperative
working relationships with other governmental agencies; and
• Assists in the preparation of budget estimates and other fiscal and statistical
reports.
Job Classification Specifications, Job Code 08210, at 1. The job classification
specs ications state that since all positions in this class involve a staff relationship to an
administrator, supervision over other employees is not normally exercised. Id.
You plan to retire from your employment with PennDOT on March 23, 2018, and
you are considering two post - employment scenarios that would involve providing
services to PennDOT at the Eastern Regional Traffic Management Center and/or the
Statewide Traffic Management Center. In the first scenario, you would return to work
with PennDOT as an annuitant under the 95 -day "return to state service" provision at 71
Pa.C.S. § 5706(A.1. In the second scenario, you would provide services to PennDOT
through a firm { " }he Firm ") that supplies consultant operators for PennDOT.
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would impose prohibitions or restrictions upon you with regard to your post -
retirement employment activities.
Hence, 18 -507
February 27, 2018
Page 3
Discussion: It is initial) 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
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 Administrative Assistant 1 with PennDOT, 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 employed by the
Commonwealth or a political subdivision who is responsible
for taking or recommending official action of a nonministenal
nature with regard to:
III 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.
Henn 18 -507
February 27, 2018
Page 4
(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,
construction workers, equipment operators and recreation
directors.
Hen , 18 -507
e ruary 27, 2018
Page 5
(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 Administrative Assistant 1 with PennDOT, 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 official position description and the job classification
specifications, 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." In this respect, it is noted that your job
duties and responsibilities as set forth in your official Commonwealth position
description differ from those of other individuals employed in the position of
Administrative Assistant 1 who were determined to fall within the definition of " ublic
employee." See, Troutman, Advice 11 -526 (Administrative Assistant 1 with the
Pennsylvania Uepartmennt o IGliilitary and Veterans Affairs); see also, Kanarr, Advice 02-
583, Hammaker, Advice 02 -578, and Donley, Advice 02 -575 (7Uffi inistr t e Assistant
1s with the Bureau of Benefits and Allowances, Claims Information Section,
Pennsylvania Department of Labor and Industry).
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(g) of the Ethics Act would not be applicable to you upon termination of your
Hewn , 18 -507
February 27, 2018
Page 6
employment as an Administrative Assistant 1 with PennDOT and would not restrict you
with regard to your post - retirement employment activities.
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 the Ethics
Act provide in part that no person shall offer or e to a public off icial/public employee
anything of monetary value and no public official /publi(., 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. Specifically not addressed herein is the
applicability of the Governor's Code of Conduct.
Conclusion: Based upon the submitted facts, in your current capacity as an
ministra ive Assistant 1 with the Pennsylvania Department of Transportation
( "PennDOT') under job code 08210, you are not to be considered a "public employee"
as that term is defined by the Public Official and Emplo ee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1101 et seq. Consequently, Section 1103(9) of the Ethics Act would not be
applicable to you upon termination of your employment as an Administrative Assistant 1
with PennDOT and would not restrict you with regard to your post - retirement
employment activities. 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(l 1) 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 actually
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,
Robin M. Hittie
Chief Counsel