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HomeMy WebLinkAbout18-536 GregorPHONE: 717 -783 -1610 TOLL FREE: 1- 800- 932 -0936 To the Requester: Ilk STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120 -0400 ADVICE OF COUNSEL June 13, 2018 Mr. James P. Gregor, Esquire Chief Public Defender Monroe County Office of the Public Defender Dear Mr. Gregor: FACSIMILE: 717- 787 -0806 WEBSITE: www.ethics.pa gov iiE:161911. This responds to your letter dated May 24: 2018, by which you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission "). Issue: Whether an individual serving as an Investigator for the Monroe County Office of the Public Defender under Class Code 1522 would be considered a "Public employyee° subject to the Public Official and Employee Ethics Act ( "Ethics Act'), 65 Pa.C.S. § 110 et se ., and therefore would be subject to the restrictions of Section 1103(a) of the Ethics Act (pertaining to conflict of interest). Facts: You request an advisory from the Commission as to whether an individual serving as an Investigator for the Monroe County (``County ") Office of the Public Defender ( "Public Defender's Office ") under Class Code 1522 would be considered a "public employee" as that term is defined in the Ethics Act, and therefore would be subject to the restrictions of Section 1103(a) of the Ethics Act (pertaining to conflict of interest). You have submitted a copy of a County classification specification- under Class Code 1522 (the "Classification Specification ") for the position of Investigator for the Public Defender's Office, which document is Incorporated herein by reference. The Classification Specification provides as follows: PURPOSE OF CLASSIFICATION The purpose of this classification is to investigate leads and evidence In criminal cases, to interview defendants and witnesses, to serve subpoenas, to prepare case reports, and to perform other duties to assist the legal staff of the Public Defender's Office in preparing cases for trial. ESSENTIAL FUNCTIONS The following duties are normal for this position. These are not to be construed as exclusive or all- inclusive. Other duties may be required and assigned. Gre or, 18 -536 une 3, 2018 Page 2 Locates and interviews defendants regarding history and facts of criminal cases. Interviews witnesses, victims, and others for the defense and prosecution of assigned cases. Gathers and investigates evidence at the scene of the crime; uses VCR; takes photographs; gathers measurements; performs other investigative duties in obtaining facts for assigned cases. Gathers documentary evidence and investigates leads. Searches public records and conducts legal research. Serves subpoenas to defense witnesses; coordinates scheduling and appearance of witnesses in court; supervises witnesses during court sessions. Testifies in court. Maintains and updates case files. Prepares investigation reports for the legal staff of the Public Defender's Office. Serves as liaison between Public Defender's Office and law enforcement agencies regarding assigned cases. ADDITIONAL FUNCTIONS Performs other related duties as required. Classification Specification, at 1. You state that the position of Investigator for the Public Defender's Office under Class Code 1522 is a full -time position. You further state that an Investigator in such position is generally under the direct supervision of the Chief Public Defender or Deputy Chief Public Defender and works with the various attorneys in the Public Defender's Office with respect to their specific requests in individual cases. It is administratively noted that as the Chief Public Defender of the County, with the approval of the County Commissioners, you may provide for the employment of Investigators for the Public Defender's Office, and therefore you have standing to submit the instant advisory request. See, 16 P.S. § 9960.5(a). Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of e Ethi cs 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. The Ethics Act defines the term "public employee" as follows: Grec or, 18 -536 uJ ne 13, 2018 Page 3 § 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: 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 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. 4C) 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. (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. Gregor, 18536 June 13, 2018 Page 4 (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, investi ators, auditors, sewer enforcement officers and zoning officers in all governmental bodies. (E) Court administrators, assistants for fiscal affairs and deputies for the minor judiciary. (1=) 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 d irectors. (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 (Emphasis added). 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 Grime or, 18 -536 June 13, 2018 Page 5 of the person's 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. 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 osition itself. Typically, the powers and duties of the position are established by oNective 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, Philli s v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion 04 002; hienvold, pinion 04 -001; Shearer, Opinion 03 -011. The Commonwealth Court of Pennsy van as specifically consy iced and approved this Commissions 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 by, 2010 Pa. ommw. LEXI 8 (Pa. Cmwith. January 5, 2010), allocatur denied, 607 Pa. 708, 4 A.3d 1056 {2010}; Phil, supra. The first portion of the statutory definition of "public em ployee" 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 tatus 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 in forward 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, etc , Reese /Gilliland, Opinion 05- 005. In applying the objective test in the instant matter, the necessary conclusion is that an individual serving as an Investigator for the Public Defender's Office under Class Code 1522 would be considered a "public employee" subject to the Ethics Act. It is clear that an individual serving in the aforesaid capacity has the ability to take or recommend official action of a nonministerial nature with respect to subparagraph (5) within the definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. § 1102. Specifically, the authority of an Investigator for the Public Defender's Office to investigate leads and gather evidence for the defense and prosecution of criminal cases would be sufficient to establish status as a "public employee" subject to the Ethics Act. The foregoing authority would also meet the criteria for determining status as a public employee under the Regulations of the State Ethics Commission, specifically at 51 Pa. Code § 11.1, "public employee," subparagraphs Q) and (ii). Cf., 51 Pa. Code � 11.1, "public employee," subparagraph (iv) (D) (investigators are generally considered `public employees'). Therefore, an individual serving as an Investigator for the Public Defender's Office under Class Code 1522 would be subject to the restrictions of Section 1103(a) of the Ethics Act (pertaining to conflict of interest). 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 Gre prr, 18 -536 June 13, 2018 Page 6 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 County Code. Conclusion: An individual serving as an Investigator for the Monroe County Office of t e Public Defender under Class Code 1522 would be considered a "public employyee" sub ect to the Public Official and Employee Ethics Act � "Ethics Act`), 65 i 110 et se q., and therefore would be subject to the restrictions of Section 1103(a) of the Ethics Act (pertaining to conflict of interest). Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1 107(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 writing and must be actual) received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § f3.2(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. Si7ly' P)(� ti Robin M. Hittie Chief Counsel