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