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HomeMy WebLinkAbout18-510 LevinePHONE: 717- 783 -1610 TOLL FREE: 1 -800 -932 -0936 a % STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120 -0400 ADVICE OF COUNSEL March 6, 2018 To the Requester: Mr. Jeffrey A. Levine, Esquire Herlands & Levine Dear Mr. Levine: FACSIMILE: 717- 787 -0806 WEBSITE: www.ethics.pa.00v 18 -510 This responds to your letter dated January 18, 2018, by which you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission "). Issue: Whether an individual serving as an Adult Basic Education Teacher, orrection Education for the Pennsylvania Department of Corrections under dob code 25900 would be considered a `,public employee" subject to the Public Official and Employee Ethics Act ("Ethics Act ), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et sje , and if so, whether the Ethics Act would impose prohibitions or restrictions upon such individual with regard to receiving supplemental income as an independent contractor providing early intervention services through a county. Facts: You request an advisory from the Commission on behalf of an individual ("the Individual"). You have submitted facts that may be fairly summarized as follows. The Individual recently began employment as an Adult Basic Education Teacher, Correction Education with the Pennsylvania Department of Corrections ( "Department of Corrections "). You have submitted a copy of the job classification specifications for the position of Adult Basic Education Teacher, Correction Education (lob code 25900), which document is incorporated herein by reference. Per the job classification specifications under job code 25900, an Adult Basic Education Teacher, Correction Education is responsible for developing and adapting curriculum, course outlines, and lesson plans to meet the educational needs of inmates at state correctional facilities. Examples of work performed by an Adult Basic Education Teacher, Correction Education include the following: • Preparing instructional objectives that will achieve the goals of the Planned Educational Program; • Preparing lesson plans specifying content and activities to be covered, sequence of instruction, materials needed, and standards for lesson accomplishment; Levine, 18 -510 March 6, 2018 Page 2 • Preparing instructional aids and materials and reviewing and recommending tests, study guides, workbooks, and other learning materials for use in the classroom; • Preparing assessments and analyzing the information gathered to determine inmate capabilities and readiness for learning; • Instructing inmates on the content of a variety of subjects; • Training and supervising inmate assistants for a tutorial environment; • Selecting and employing a variety of teaching techniqques and approaches in presenting subject matter to a group of inmates or individual inmates; • Preparing and administering quizzes, tests, and exercises; • Analyzing inmates' achievement in class using tests and other evaluative information to identify the strengths and learning needs of individual inmates; • Establishing classroom rules and procedures, maintaining order in class, and maintaining inmate attendance and learning records; and • Preparing requests for equipment, materials, and supplies and completing reports and maintaining records on inventory assigned to the inmates, classroom, and school. Job Classification Specifications, Job Code 25900, at 1 -2. Before the Individual began employment with the Department of Corrections, she was approved to receive supplemental income as. an independent contractor providing early intervention services through a county. The Individual has not received the supplemental income while she has been employed with the Department of Corrections. The supplemental income would be paid to the Individual through the state Medical Assistance program. Based upon the above submitted facts, the question that is presented is whether, in her capacity as an Adult Basic Education Teacher, Correction Education with the Department of Corrections, the Individual would be considered a public employee subject to the Ethics Act, and if so, whether the Ethics Act would impose prohibitions or restrictions upon the Individual with regard to receiving supplemental income as an independent contractor providing early intervention services through a county. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of fie 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 disc osed all of the material facts. In this regard, it is noted that the submitted facts do not include a Position Description specific to your client, but rather, only the .lob Classification Specifications for Job Code 25900. Therefore, this Advice does not take into account any job Levine, 18 -510 arc 6, 2018 Page 3 duties /authority your client may have beyond the scope of the .lob Classification Specifications. The Ethics Act defines the term "public employee" as follows: §'1'102. Definitions "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonmmisterial 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. 4(C) The individual is the supervisor of a highest level field o ice. (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. (G) The individual makes final technical recommen- dations. Levine, 18 -510 arc 6, 2018 Page 4 (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. (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: Levine, 18 -510 arc 6, 2018 Page 5 § 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 erson exercises his own judgment as to the desirability of Fhe 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 the Individual's current position, the necessary conclusion is that in her capacity as an Adult Basic Education Teacher, Correction Education with the Department of Corrections, the Individual is not to be considered a "public employee" as that term is defined in the Ethics Act. Based upon an objective review of the job classification specifications, the individual is 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 only provision of the Ethics Act that applies to the Individual 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 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. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: Based upon the submitted facts, in her current capacity as an Adult Basic Education Teacher, Correction Education with the Pennsylvania Department of Corrections ( "Department of Corrections ") under job code 25900, the individual ( "Individual ") on whose behalf you have inquired is 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. 5 1101 et se q. 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. Levine, 18 -510 arc 6, 2018 Page 6 Finally, if you disagree with this Advice or if you have an yy 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 writing and must be actuall received at the Commission within thirty (30) days of the date o t is vice 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 Me such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sinc fy, Robin M. Hittie Chief Counsel