Loading...
HomeMy WebLinkAbout98-628 GambinoDominick Gambino 9921 Legrand Dr. Wexford, PA 15090 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL December 22, 1998 98-628 Re: Former Public Employee; Section 1103(g); Administrative Assistant to the County Controller; Allegheny County Controller's Office; Real Estate Tax Liens; Sale; Independent Contractor; Tax Lien Project Manager. Dear Mr. Gambino: This responds to your letter of November 12, 1998 and your faxed transmission of November 19, 1998 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act presents any restrictions upon employment of an Administrative Assistant to the Allegheny County Controller following termination of service with the Allegheny County Controller's Office. Facts: You are currently employed as an Administrative Assistant to the Allegheny County ( "County ") Controller. You state that this is a non -civil service "at- will" position in which you report directly to the Controller and Deputy Controller. Your duties include: researching issues; gathering information relating to governmental policy and procedures; reporting the information gathered to the Controller; preparing special reports for the Controller as directed; and responding to correspondence. You have submitted a five -line description of your job, as well as examples of special reports which you have prepared, which documents are incorporated herein by reference. In September, 1997, the Allegheny County Commissioners requested that the Controller's Office act as the financial advisor to the sale (via bids) of $35 million in real estate tax liens. The Controller's Office prepared the real estate tax portfolio. You assisted by gathering public tax information, drafting documents, and preparing a Request for Proposals which was sent to prospective bidders. The Controller's Solicitor then assisted in negotiating the sale of the tax liens to the highest bidder. Subsequent sales of real estate tax liens occurred in December, 1997 and October, 1998. The role of the Controller's Office in the subsequent sales was limited to providing financial information requested by the Commissioners' "negotiating team." You state that the sale of the tax liens has created a need for a "tax lien project manager" to oversee continuing details of the sales and to act as the County's liaison FAX : (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: sec @state.pa.us Gambino, 98 -628 December 22, 1998 Page 2 to the buyer(s). You have submitted a copy of the "job description" for this position, which document is incorporated herein by reference. It is noted that the tax lien project manager would contract with the Department of Economic Development. You are considering terminating your current position in order to pursue this new position as an independent contractor. You would provide tax lien management services to the Allegheny County Department of Economic Development and to other municipalities. You request an advisory from the State Ethics Commission as to whether you are a "public employee" subject to the restrictions of the Ethics Act, and whether you may accept the above - mentioned position. You state your belief that you are not a "public employee" subject to the restrictions of the Ethics Act. In support of your position, you cite the Ethics Act's definition of "public employee" and state: ". . . it has never been my responsibility to recommend any action, "official" or otherwise with regard to any of the categories listed...." (Letter of November 12, 1998 at 2). Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11 ( "Ethics Act "), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. In responding to your request for an advisory, the key issue is whether, in your current position as an Administrative Assistant to the Allegheny County Controller, you are a "public employee" as defined in the Ethics Act, and are therefore subject to the restrictions of the Ethics Act. The Ethics Act defines the term "public employee" as follows: Section 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: (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. Act 93 of 1998, Chapter 1 1, §1102. Gambino, 98 -628 December 22, 1998 Page 3 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. office. (C) The individual is the supervisor of a highest level field (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 recommendations. (H) The individual's recommendations or actions are an inherent and recurring part of his position. (I) 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. Gambino, 98 -628 December 22, 1998 Page 4 (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. Status as a "public employee" subject to the Ethics Act is determined by applying the above definition and criteria to the position held. The focus is necessarily upon the position itself, and not upon the individual incumbent in the position, the variable functions of the position, or the manner in which a particular individual occupying the position may carry out those functions. See Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Commw. Ct. 1984); and JVlummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982). In applying the above definition and criteria to the facts which you have submitted, it is noted that the submitted job description for your current position is extremely limited. However, you have expressly represented that it has never been your responsibility to recommend any action, "official" or otherwise, with regard to any of the categories enumerated in the Ethics Act's definition of "public employee." (Letter of November 12, 1998 at 2). Therefore, conditioned upon the assumption that in your position as an Administrative Assistant to the Allegheny County Controller, there is no power to take or recommend official action of a non - ministerial nature with respect to contracting; procurement; planning; inspecting; administering or monitoring grants; leasing; regulating; auditing; or other activities where the economic impact is greater than de minimis on the interests of another person, the necessary conclusion is that you are not to be considered a "public employee" subject to the Ethics Act or the Regulations of the State Ethics Commission. See, Act 93 of 1998, Chapter 11; 51 Pa.Code §11.1. Conditioned upon the same assumption, upon termination of your service as an Administrative Assistant to the Allegheny County Controller, you would not be subject to the restrictions of Section 1 103(g) of the Ethics Act, and Section 1 103(g) of the Ethics Act would not preclude your entering into a contract with Allegheny County to perform the functions of "tax lien project manager." This Advice is conditioned upon the assumption that all of the material facts have been accurately and fully disclosed. This Advice has addressed the applicability Gambino, 98 -628 December 22, 1998 Page 5 of Section 1103(g) only. You are advised that Sections 1 103(b) and 1 103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee 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. Conclusion: Conditioned upon the assumption that in your position as an Administrative Assistant to the Allegheny County Controller, there is no power to take or recommend official action of a non - ministerial nature with respect to contracting; procurement; planning; inspecting; administering or monitoring grants; leasing; regulating; auditing; or other activities where the economic impact is greater than de minimis on the interests of another person, the necessary conclusion is that you are not to be considered a "public employee" subject to the Ethics Act or the Regulations of the State Ethics Commission. See, Act 93 of 1998, Chapter 11; 51 Pa. Code §11.1. Conditioned upon the same assumption, upon termination of your service as an Administrative Assistant to the Allegheny County Controller, you would not be subject to the restrictions of Section 1 103(g) of the Ethics Act, and Section 1 103(g) of the Ethics Act would not preclude your entering into a contract with Allegheny County to perform the functions of "tax lien project manager." The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), this 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, 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 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 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. Since ly, t, _ TAG Vincent J. Dopk Chief Counsel