HomeMy WebLinkAbout18-575 HillPHONE: 717 - 783 -1610
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To the Requester:
Ms. Beth Hill
Dear Ms. Hill:
ADVICE OF COUNSEL
December 18, 2018
FACSIMILE: 717- 787 -0806
WEBSITE: www.ethics.oa.gov
18 -575
This responds to your letter dated November 16, 2018, by which you requested
an advisory from the Pennsylvania State Ethics Commission ( "Commission ").
Issue: Whether, as an Information Technology Generalist 2 for the
U-o—mmonwealth of Pennsylvania ( "Commonwealth' under job code 01542, you would
be considered a "public empplo ee" 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
Commission, 5 Pa. Code 11.1 Wt se-.� such that u p on termination of your
Commonwealth employment, the proFibitionslrestrictions of Section 1103(g) of the
Ethics Act would be applicable to you.
Facts: You request an advisory from the Commission based upon submitted
facts hat may be fairly summarized as follows.
You state that you are an Information Technolo y Generalist 2 for the Governor's
Office of Administration ( "Office of Administration, Infrastructure and Economic
Development Delivery Center, ITC Division. You have submitted a copy of your official
Commonwealth position description ( "Position Description"), which lists your department
as the Pennsylvania Department of Transportation "PennDOT "), your organization as
the Bureau of Infrastructure and Operations, and your organization code as 3300. You
have additionally submitted a copy of an organizational chart ( "Organizational Chart ")
which identifies your position as falling under the Infrastructure and Economic
Development Delivery Center, Bureau of Infrastructure and Operations, IT Coordinator
Division (organization code 3300). The Position Description and the Organizational
Chart are incorporated herein by reference. A copy of the job classification
specifications for the position of Information Technology Generalist 2 (job code 01542)
has been obtained and is also incorporated herein by reference.
Per the Position Description, you perform a variety of support and system
management enhancement activities in support of all eleven PennDOT Engineering
Districts, the Bureau of Project Delivery and other divisions within PennDOT's Central
Office, and external business partners. Your duties and responsibilities include the
following:
Hill, 18 -575
Eiecember 18, 2018
Page 2
• Making independent decisions dealing with day -to -day CADD operations and
support, including managing all service desk calls and tickets within the Systems
Support Section as appropriate by assigning and monitoring tickets, day -to -day
issues and tasks;
• Serving as the lead worker over lower level or less senior staff, interns, and
contracted staff, providing mentoring and direction, assigning and monitoring
tasks, and providing input on performance evaluations as appropriate;
• Utilizing network administration tools to monitor, isolate, diagnose, and/or resolve
client network issues and create content;
• Performing and assisting in the writing, modifying, debugging, testing,
documenting, and training of system management and/or engineering application
programs;
• Monitoring, managing, and maintaining compliance for all CADD client
workstations to ensure usability, security, and network compliance and managing
twenty -two physical and five virtual CADD servers;
• Leading implementation on all major CADD projects, creating all related project
documentation, instructing other CADD/IT staff on processes and procedures for
each project, and ensuring consistency and accuracy of all work performed;
• Conducting meetings with PennDOT's highway administration program areas to
analyze and define CADD/IT business needs and technology requirements within
the CADD program area, determining feasibility, and recommending appropriate
training, programming, or product matching to improve business processes;
• Analyzing outputs or systems developed to ensure compatibility with user
requirements and PennDOT standards;
• Providing guidance on the proper use of System Center Configuration
Management (SCCM) and Remote Desktop (RDP) remote tools and software
utility programs to diagnose and troubleshoot hardware and software problems,
ensuring that all day -to -day problems are resolved, and performing routine
follow -up to ensure that the work is completed and documented appropriately;
• Providing guidance to other staff members with troubleshooting hardware issues
and, when necessary, assisting them with determining if a call should be placed
to contracted maintenance vendors;
• Monitoring and ensuring that work performed by a vendor is documented and
ensuring that equipment is repaired correctly and according to contractual
agreement;
• Providing prioritized recommendations for annual CADD/IT budget items;
• Researching products to ensure recommended products meet needs and
obtaining cost estimates for budget purposes;
• Testing and evaluating products and applications associated with needs and
making recommendations on software and hardware purchases; and
Hill, 18 -575
Tecember 18, 2018
Page 3
• Managing projects and day -to -day requests and services and providin lead
worker assistance and direction to all other lower level or less senior CAD D staff,
including assigning work and evaluating work performance.
Position Description, at 1 -4.
Your Position Description further provides:
Self - direction and independent decision making are required
in order to provide immediate, on- the -spot, direction to other
members of the CADD /IT staff as well as users. Included in
this decision making is the ability to know when to defer to
others. User level issues can be resolved by the employee
but decisions that relate to policy and impacts to the
enterprise must be deferred.
Position Description, at 5.
Per the job classification specifications under job code 01542, an Information
Technology Generalist 2:
• Leads a team of technical staff involved in recommending and coordinating the
purchase of software and hardware needed to upgrade agency capability
consistent with the agency's IT strategic plan;
• Reviews and monitors contractor performance in accordance with specifications;
• Participates in the development of the IT strategic plan through coordination with
agency managers to align IT systems with the agency's mission;
• Researches, analyzes, reports, and makes recommendations on the capabilities
and limitations of industry technologies relative to the environment;
• Develops IT components of the agency's continuity of government and disaster
recovery plans, plans and organizes IT continuity of government tests, and
coordinates IT asset recovery and replacement;
• Maintains, improves, and customizes the agency's project management
methodology processes, standards, and associated documentation;
• Conducts comprehensive quality reviews for projects managed by agency project
managers to ensure that project plans are complete, that projects are completed
on time, within budget, and within project scope, and that project goals are met;
• Manages complex IT projects following the agency's or Commonwealth's project
management methodology;
• Plans and constructs test plans for highly complex systems and system
components and performs testing;
• Develops quality audit plans and conducts audits across IT functions to ensure
quality standards are being met;
• Develops and maintains hardware and software asset management procedures,
processes, systems, and measurements and makes recommendations on
complex asset management activities and decisions,
Hill, 18 -575
ITRember 18, 2018
Page 4
• Develops standards and guidelines for IT technical writing for the agency; and
• Functions as a lead worker for technical IT work by assigning and reviewing
work, training employees, and performing quality control functions for the work.
Job Classification Specifications, Job Code 01542, at 1 -2.
You state that you are considering retiring from your Commonwealth employment
in January 2019 and working as an independent consultant with the Office of
Administration, Infrastructure and Economic Development Delivery Center, Bureau of
infrastructure and Operations at the PennDOT Server Farm. You state that your job
responsibilities as an independent consultant would be similar to your current job
responsibilities but broader in scope with the potential to mana a some of the System
Center Configuration Manager (SCCM) and Active Directory (AD3 projects.
Based upon the above submitted facts, you ask whether, in your current capacity
as an Information Technology,, 2 for the Commonwealth, you would be
considered a "public employee" as that term is defined in the Ethics Act, and if so,
whether the Ethics Act would impose prohibitions or restrictions upon you with regard to
working as an independent consultant with the Office of Administration, Infrastructure
and Economic Development Delivery Center, Bureau of infrastructure and Operations at
the PennDOT Server Farm.
Discussion: It is initials noted that pursuant to Sections 1107(10) and 1107(11) of
e tics Act, 65 Pa.C.S. y§§ 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:
§ 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.
Hill, 18 -575
D—ecember 18, 2018
Page 5
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.
(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
Hill, 18 -575
Uecember 18, 2018
Page 6
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:
§ 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.
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 position
itself. Typically, the powers and duties of the position are established by objective
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,
Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion
04 -002; ienvo pinion 04 -00 ; Shearer, Opinion 03 -011. The Commonwealth Court
Hill, 18 -575
U766ember 18, 2018
Page 7
of Pennsylvania has specifically considered and approved this Commission's objective
test and has directed that coverage under the Ethics Act be construed broadly and that
exclusions under the Ethics Act 6e construed narrowly. See, Qua lia v. State Ethics
Commission, 986 A.2d 974 (Pa. Cmwlth. 2010), amended by, 20 1 0 Pa. ommw.
mwlth. January 5, 2010), allocatur denied, 7 Pa. 708, 4 A.3d 1056 (2010);
Philli s, supra.
The first portion of the statutory definition of "public employee" includes
individuals with authority to take or recommend official action of a nonministerial nature.
65 P&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 individuals 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 in your capacity as an Information Technology Generalist 2 for the Commonwealth,
you would be considered a "public employee subject to the Ethics Act and the
Regulations of the State Ethics Commission.
It is clear that as an Information Technology Generalist 2 for the Commonwealth
under job code 01542, you have 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 following
duties and authority set forth in the Position Description and the job classification
specifications under job code 01542 would be sufficient to establish your status as a
"public employee" subject to the Ethics Act:
• Providing guidance to other staff members with troubleshooting hardware issues
and, when necessary, assisting them with determining if a call should be placed
to contracted maintenance vendors;
• Monitoring and ensuring that work performed by a vendor is documented and
ensuring that equipment is repaired correctly and according to contractual
agreement;
• Providing prioritized recommendations for annual CADDIIT budget items;
• Researching products to ensure recommended products meet needs and
obtaining cost estimates for budget purposes;
• Testing and evaluating products and applications associated with needs and
making recommendations on software and hardware purchases;
• Managing projects;
• Leading a team of technical staff involved in recommending and coordinating the
purchase of software and hardware needed to upgrade agency capability
consistent with the agency's IT strategic plan;
• Reviewing and monitoring contractor performance in accordance with
specifications;
Hill, 18 -575
becember 18, 2018
Page 8
• Coordinating IT asset recovery and replacement in relation to the agency's
continuity of government and disaster recovery plans;
• Maintaining, improving, and customizing the agency's project management
methodology processes, standards, and associated documentation;
• Conducting comprehensive quality reviews for projects managed by agency
project managers to ensure that protect plans are complete, that projects are
completed on time, within budget, and within project scope, and that project
goals are met;
• Performing quality control functions for technical IT work and developing quality
audit plans and conducting audits across IT functions to ensure quality standards
are being met; and
• Developing and maintaining hardware and software asset management
procedures, processes, systems, and measurements and making
recommendations on complex asset management activities and decisions.
The foregoing duties /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 (i) and (ii).
Consequently, upon termination of your Commonwealth employment, you would
become a "former public employee" subject to Section 1103(g) of the Ethics Act.
While Section 11030 does not prohibit a former public official/public employee
from accepting a position of employment, it does restrict the former public officiallpublic
employee with regard to "representing" a "person" before "the governmental body with
which he has been associated ":
§ 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 bemire the
governmental bodv with which he has been associated Tar
one year after he leaves that body.
65 Pa.C.S. § 1103(g) (Emphasis added).
The terms "represent," "person," and "governmental body with which a public
official or public employee is or has been associated" are specifically defined in the
Ethics Act as follows:
§ 1102. Definitions
"Represent." To act on behalf of any other person in
any activity which includes, but is not limited to, the
following: personal appearances, negotiations, lobbying and
submitting bid or contract proposals which are signed by or
contain the name of a former public official or public
employee.
Hill, 18 -575
D— Rember 18, 2018
Page 9
"Person." A business, governmental body,
individual, corporation, union, association, firm, partnership,
committee, club or other organization or group of persons.
"Governmental body with which a public official
or public employee is or has been associated." The
governmental body within State government or a political
subdivision by which the public official or employee is or has
been employed or to which the public official or employee is
or has been appointed or elected and subdivisions and
offices within that governmental body.
65 Pa.C.S. § 1102.
The term "person" is very broadly defined. It includes, inter alia, corporations and
other businesses. It also includes the former public officia pTi1iu ifc employee himself,
Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur,
Up—in—ion _95-00-7.
The term "represent" is also broadly defined to prohibit acting on behalf of any
person in activit(. Examples of prohibited representation include: �1) personal
appearances before the former governmental body or bodies; (2) attempts o influence;
(3) submission of bid or contract proposals which are signed by or contain the name of
the former public official/public employee; (4) participating in any matters before the
former governmental body as to acting on behalf of a person; and (5) lobbying.
Popovich, Opinion 89 -005.
During the one -year period of applicability of Section 1103(g� of the Ethics Act,
Section 1103(8) generally would prohibit a former public official)pu lic employee from
contracting with the former governmental body see, Shaub, Order 1242; Confidential
O inon, 97 -008; Confidential Opinion, 93 -005) or proving consulting services tot the
orf mer
governmen_tal body with promised or actual compensation see, Claycomb,
Opinion 14 -004).
Listing one's name as the person who will provide technical assistance on a
ppro osal, document, or bid, if submitted to or reviewed by the former governmental
b�dy, constitutes an attempt to influence the former governmental body. Section
33(8) also generally prohibits the inclusion of the name of a former public
officiallpublic employee on invoices submitted by his new employer to the former
governmental body, even if the invoices pertain to a contract that existed prior to
termination of service with such governmental body. Shay, Opinion 91 -012. However,
if such a pre- existing contract does not involve the unit where a former public employee
worked, the name of the former public employee may appear on routine invoices if
required by the regulations of the agency to which the billing is being submitted.
AbramslWebster, Opinion 95 -011.
A former public official/public employee may assist in the preparation of any
documents presented to his former governmental body. However, the former public
official/public employee may not be identified on documents submitted to the former
governmental body. The former public official/public employee may also counsel any
person regarding that person's appearance before his former governmental body. Once
again, however, the activity in this respect should not be revealed to the former
governmental body. The Ethics Act would not prohibit or preclude making general
informational inquiries to the former governmental body to secure information which is
available to the general public, but this must not be done in an effort to indirectly
influence the former governmental body or to otherwise make known to that body the
representation of, or work for, the new employer.
Hill, 18 -575
URember 18, 2018
Page 10
Section 1103(g) only restricts the former public official /public employee with
regard to representation before his former governmental body. The former public official/
public employee is not restricted as to representation before other agencies or entities.
However, the "governmental body with which a public official/public employee is or has
been associated" is not limited to the particular subdivision of the agency or other
governmental body where the public official/public employee had influence or control
but extends to the entire body. See, Legislative Journal of House, 1989 Session, No.
15 at 290, 291; Sirolli, Opinion 90 -00 ; Shar p, Opinion 90- 009 -R.
Based upon the submitted facts, the governmental body with which you would be
deemed to have been associated upon termination of your employment with the
Commonwealth, hereinafter collectively referred to as "your former governmental body,"
would include: (1) the Office of Administration in its entirety; and (2) PennDOT in its
entirety. Cf., Parker, Advice 18 -541.
Therefore, for the first year following termination of your Commonwealth
employment, Section 1103(g) of the Ethics Act would apply and restrict "representation"
of a "person'— including butt not limited to yourself as an independent consultant —
before your former governmental body as delineated above.
Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are
advised that during the first year following termination of your Commonwealth
employment, Section 1103(g) of the Ethics Act would prohibit you from working as an
independent consultant with the Office of Administration, Infrastructure and Economic
Development Delivery Center. Bureau of infrastructure and Operations at the PennDOT
Server Farm as such activity(ies) would constitute prohibited representation of a
person -- yourself — before your former governmental body. Cf., Shaub, supra;
Claycomb, supra; Confidential O_ pinion, 97 -008; Confidential Opinion, 93- 5.
Based upon the facts that have been submitted, this Advice has addressed the
applicability of Section 1103(g) only. It is expressly assumed that there has been no
use of authority of office or employment, or confidential information received by being in
the public position, for a private pecuniary benefit as prohibited by Section 1103(a) of
the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics
Act provide in part that no person shall offer or give to a pubic official/ public employee
and no public officiallpublic 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: As an Information Technology Generalist 2 for the Commonwealth
of ennsy vania ("Commonwealth") under job code 015442, you would be considered a
"public employee' subject to the Public Official and Employee Ethics Act ( "Ethics Act "),
65 Pa.C.S. § 1101 et se q., and the Regulations of the State Ethics Commission, 51 Pa.
Code § 11.1 et sue. Upon termination of your employment with the Commonwealth,
you would become a "former public employee" subject to Section 1103(g) of the Ethics
Act.
Hill, 18 -575
i�ecember 18, 2018
Page 11
Based upon the submitted facts, the governmental body with which you would be
deemed to have been associated upon termination of your employment with the
Commonwealth, hereinafter collectively referred to as "your former governmental body,"
would include: (1) the Governor's Office of Administration in its entirety; and (2) the
Pennsylvania Department of Transportation ( "PennDOT ") in its entirety.
For the first year following termination of your Commonwealth employment,
Section 1103(g) of the Ethics Act would apply and restrict "representation of a
"person includding but not limited to yourself as an independent consultant— before
your former governmental body. During the first year following termination of your
Commonwealth employment, Section 1103(g) of the Ethics Act would prohibit you from
working as an independent consultant with the Office of Administration, Infrastructure
and Economic Development Delivery Center, Bureau of infrastructure and Operations at
the PennDOT Server Farm as such activity(ies) would constitute prohibited
representation of a person -- yourself — before your former governmental body. The
restrictions as to representation outlined above must be followed.
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 dateotthT s
Advice ursuant to 59 Pa. Code § 13.2(h). The appeal may be
received p at the Commission by hand delivery, United States mail,
delivery service, or by FAX transmission (797 - 787 -0806. Failure to
Me such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
Robin M. Hittie
Chief Counsel