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To the Requester:
Ms. Erin K. Bruni
Dear Ms. Bruni:
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
March 12, 2020
FACSIMILE: 717-787-0806
WEBSITE: www.ethics.12a.aov
20-516
This responds to your letter dated February 7, 2020, and your email received
February 14, 2020, by which you requested an advisory from the Pennsylvania State
Ethics Commission ("Commission").
Issue: Whether: (1) an individual serving as an OMI Investigator with the Office of
unicipal Investigations of the City of Pittsburgh; or (2) an individual serving as an OMI
Investigator — PBP Detective with the Office of Municipal Investigations of the City of
Pittsburgh would be considered a "public emppIpe" subject to the Public Official and
Employee Ethics Act ("Ethics Act"), 65 Pa.C.S101 et seg., and the Regulations of
the State Ethics Commission, 51 Pa. Code11.1 et seq., and particularly, the
requirements for filing Statements of Financial Interests.
Facts: You request an advisory from the Commission based upon submitted
acts hat may be fairly summarized as follows.
You are the Manager of the Office of Municipal Investigations ("OMI") of the City
of Pittsburgh ("City"). OMI is responsible for investigating citizen and departmentally -
initiated complaints of alleged misconduct by employees of the City. OMI also conducts
pre -employment background investigations on candidates for City public safety jobs and
investigations with regard to City employee compliance with residency requirements.
OMI investigations may be conducted by an "OMI Investigator," who is a civilian
investigator. OMI investigations may also be conducted by an "OMI Investigator — PBP
Detective," who is a Pittsburgh Bureau of Police Detective assigned to OMI. You state
that an individual serving as an OMI Investigator or as an OMI Investigator -- PBP
Detective is a fact finder and has no authority in employee discipline, although
disciplinary action may be taken based upon the findings of an OMI investigation.
You request an advisory from the Commission as to whether an individual
serving as an OMI Investigator or an individual serving as an OMI Investigator — PBP
Detective would be considered a "public employee" subject to the Ethics Act, 65 Pa.C.S.
1 1101 et sue., and the Regulations of the State Ethics Commission, 51 Pa. Code §
1.1, et sew., and particularly, the requirements for filing Statements of Financial
Interests.
You have submitted a copy of a job description for the position of OMI
Investigator (the "OMI Investigator Job Description"), which document is incorporated
Bruni, 20-516
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Page 2
herein by reference. Per the OMI Investigator Job Description, the duties and
responsibilities of an ON Investigator include:
• Investigating and evaluating complaints concerning allegations of police
misconduct and/or misconduct of City employees;
• Determining the nature of the alleged misconduct and developing an
investigative plan;
• Performing lawful investigative assignments (such as stakeouts,
surveillance, and the like) and reporting duties in accordance with
applicable federal, state and local laws and regulations;
• Conducting background investigations for public safety employees;
• Reporting all findings to the OMI Manager;
• Maintaining confidential case files;
• Interviewing complainants, witnesses, and police officers to gather facts,
• Conducting site visits and scene analyses,
• Collecting and analyzing evidence and statements;
• Preparing written investigative reports;
• Testifying as requested or required;
• Performing financial reviews as necessary;
• Preparing case material for review by the OMI Manager; and
• Maintaining records and preparing accurate and comprehensive reports
and correspondence.
OMI InvestigatorJob Description, at 1.
You have further submitted a copy of a "Solicitation of Interest" for the position of
OMI Investigator — PBP Detective (the 'OMI Investigator — PBP Detective Solicitation of
Interest"), which document is also incorporated herein by reference. Per the OMI
Investigator — PBP Detective Solicitation of Interest, the duties and responsibilities of an
OMI Investigator— PBP Detective include:
• Investigating complaints of alleged misconduct by, inter ilia, collecting
documents, canvassing for witnesses and taking witness statements;
• Attending any court -related proceedings relevant to a particular
investigation;
• Conducting pre -employment background investigations of candidates for
City public safety jobs by, inter afa, contacting employers and personal
references of candidates a�nc conducting neighborhood canvases to
obtain information about the character of candidates; and
• Taking statements from citizen complainants or City personnel who wish
to make an alleaation of misconduct.
OMI Investigator— PBP Detective Solicitation of Interest, at 1.
You state that as the Manager of OMI, you have the authority to hire an individual
for —or terminate an individual from —the position of OMI Investigator and to have an
individual serving in the position of ON Investigator — PBP Detective transferred out of
OMI. It is noted that based upon your aforesaid factual submission, you have standing
to submit the instant advisory request.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the 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 en age 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
Bruni, 20-516
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Page 3
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.
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.
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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
d i recto rs.
(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:
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10Fairch 12, 2020
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 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 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
04-0 2; Shienvold,pinion 04-00 ; Shearer, Opinion 03-011. The Commonwealth Court
of Pennsylvania has specifically consiced and approved this Commission's objective
test and has directed that coveragge 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 �2010 a. Commw. LEXIS
$ Pa. Cmwlth. January 5, 2010), allocatur dens 4,__607 pa. 708, 4 A.3d 1056 (2010);
Phillips, 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 Pa.C.S. § 1102. Likewise, the regulatory criteria for determining status as a public
employee, as set forth in 51 Pa. Code § 11.1("public employyee")(iii)), include not only
individuals with authority to make final decisions but also indivduals 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 ON Investigator and an individual serving as an OMI
Investigator — PBP Detective would each be considered a "public employee" subject to
the Ethics Act and the Regulations of the State Ethics Commission, and in particular, the
requirements for filing Statements of Financial Interests pursuant to the Ethics Act.
It is clear that an individual serving as an OMI Investigator and an individual
serving as an OMI Investigator — PBP Detective both 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 authority of an OMI Investigator and of an OMI Investigator --
PBP Detective to investigate complaints of alleged misconduct by City employees and
conduct pre -employment background investigations on candidates for City public safety
jobs 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
Bruni, 20-516
1CI—arc-h 12, 2020
Page 6
public employee under the Regulations of the State Ethics Commission, specificall at 51
Pa. Code § 11.1, "public employee," subparagraphs (i) and (ii). Cf., 51 Pa. Code 11.1,
"public employee," subparagraph (iv)(D) (investigators are generally considered public
employees').
Therefore, you are advised that an individual serving as an OMI Investigator and
an individual serving as an OMI Investigator — PBP Detective would each be considered a
"public employee" subject to the provisions of the Ethics Act and the Regulations of the
State Ethics Commission, and in particular, the requirements for filing Statements of
Financial Interests pursuant to the Ethics Act.
Conclusion: An individual serving as an OMI Investigator with the Office of
Municipal Investigations of the City of Pittsburgh and an individual serving as an OMI
Investigator — PBP Detective with the Office of Municipal Investigations of the City of
Pittsburgh would each be considered a "public employee" subject to the Public Official
and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seg., and the Regulations
of the Pennsylvania State Ethics Commission, 51 Pa. Code § 11.1 et seq., and in
particular, the requirements for filing Statements of Financial Interests pursuant to 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 a�ctua�ll
received at the Commission within thirty(30) days of the date of this
Advice pursuant to 59 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.
Sincerely,
4 1
Robin . Hi tie
Chief Counsel