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HomeMy WebLinkAbout90-009 SharpI. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair G. Sieber Pancoast Dennis C. Harrington James M. Howley DATE DECIDED: March 30, 1990 DATE MAILED: May 3, 1990 Mr. Jeffrey D. Sharp 1129 Baish Road 90-009 Mechanicsburg, PA 17055 Re: Public Employee, Former Public Employee, Governmental Body, Governmental Body with Which a Public Official or Public Employee Is or Has Been Associated, Legislative Assistant, Senate, Section 3(g), Appeal of Advice of Counsel. Dear Mr. Sharp: This Opinion is issued pursuant to your appeal of the Advice of Counsel 90 -514, issued on March 5, 1990. Whether a former legislative assistant to a Pennsylvania Senator is restricted by Section 3(g) of the Public Official and Employee Ethics Law from representing a person before the Pennsylvania Senate for a period of one year after termination of service. II. Factual Basis for Determination: The issue which you presented was originally processed as a request for an advice of counsel and as a result on March 5, 1990 Advice of Counsel No. 90 -514 was issued. That advice concluded that you, as the former Legislative Assistant in the Office of Senator Earl M. Baker, were restricted for a period of one year from representing a person before the Pennsylvania Senate. On March 19, 1990 the Commission received your letter wherein you appealed the above Advice. By letters of March 20, 1990 you were notified that your appeal would go before the full Commission and of the date, time and location of the public meeting. Mr. Jeffrey Sharp Page 2 In your appeal of advice you argue that the Advice unduly restricts your activities and is contrary to the intent of the General Assembly. In particular, you assert that the Advice is flawed because it recites the legislative debate relative to Printer's No. 470 rather than the final version based upon Printer's No. 2027. Because the definition of the term "governmental body with which a public official or public employee is or has been associated" was subsequently amended in the Senate by removing the word "entity" and inserting in lieu thereof the words "governmental body ", you argue that the definition is limited to the immediate office with which an employee is associated. You suggest that the Advice is inconsistent with Advice 89- 525 -S. Since Senator Baker does not as yet chair any committees, you argue that your influence did not extend beyond his office. In a memorandum submitted in support of your appeal, you now raise an additional issue of whether you are a "public employee" under the Ethics Law. In particular, you argue that your job description does not fit within the statutory definition. You reference Harbach, Advice 90 -518 wherein a legislative district assistant was found not to be a public employee and argue that the cited Advice was inconsistent with your Advice on the issue of whether a person in that position is taking or recommending official action of a non - ministerial nature as to any of the five enumerated categories within the definition of "public employee." From your job description which has been obtained from the Chief Clerk of the Senate, the following duties and responsibilities are enumerated: "Mr. Sharp was a staff person in the Harrisburg Office reporting directly to Senator Baker and was under the immediate supervision and control of the Senator. Mr. Sharp was classified as a Research Analyst and primarily conducted research studies and undertook special projects for Senator Baker. More specifically, he designed and conducted research on specialized topics and policy issues, identified any problems associated with those matters, and recommended a variety of solutions for consideration by the Senator. The employe also developed and provided information and analysis concerning pending legislation and existing Commonwealth programs. He was involved in the initiation and development of legislation, gathered pertinent facts for legislative reviews,'and assisted in the direction of legislation and legislative amendments and committee reports. He prepared drafts of reports, memoranda, summaries, and other written materials as required by the Senator. Mr. Jeffrey Sharp Page 3 Mr. Sharp also attended legislative committee meetings and hearings, met with officials of State and Local Agencies, public interest groups and organizations to discuss and access impacts of proposed legislative initiatives, and performed other duties and responsibilities as needed from time to time by Senator Baker." III. Discussion: The threshold question we must address is whether you are a "public employee" as that term is defined under the Public Official and Employee Ethics Law. The Ethics Law defines that term as follows: "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. "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. Our regulations similarly define the term public employee as above and also set forth that the term includes any individual: (B) who meets the criteria of either subclause (I) or (II): (I) The individual is: ( -a -) a person who normally performs his responsibility in the field without on- site supervision; Mr. Jeffrey Sharp Page 4 ( -b -) the immediate supervisor of a person who normally performs his responsibility in the field without on- site supervision; or ( -c -) the supervisor of any highest level field office. (1I) The individual is a person: ( -a -) who: ( -1 -) has the authority to make final decisions; ( -2 -) has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions; ( -3 -) prepares or supervises the preparation of final recommendations; or ( -4 -) makes final technical recommendations; and ( -b -) whose recommendations or actions: ( -1 -) are an inherent and recurring part of his position; and ( -2 -) affect organizations other than his own organization. (ii) 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. (iii) Persons in the positions listed below are generally considered public employees. (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 Mr. Jeffrey Sharp Page 5 organization elements and other governmental body department heads. (C) Staff attorneys engaged in representing the department, agency, or other governmental bodies before the public. (D) Solicitors, engineers, managers, and secretary- treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, housing and building inspectors, 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 business managers and principals. (iv) Persons in the positions listed below are generally not considered public employees. (A) City clerks, other clerical staff, road masters, secretaries, police officers, welfare case workers, maintenance workers, construction workers, detectives, equipment operators, and recreation directors. (B) Law clerks, court criers, court reporters, probation officers, security guards, and writ servers. (C) School teachers and clerk of the schools. 51 Pa. Code Section 1.1. We must review the question you present under the statute and the regulations of the Commission in light of your duties and responsibilities as described in your job description and /or classification specifications, under which you operate. Our inquiry necessarily focuses on the job itself, that is, we must apply an objective test in determining status as a "public employee ". See Phillips v. State Ethics Commission, 79 Pa. Cmwlth. 491, 470 A.2d 659 (1984); and Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982). r Mr. Jeffrey Sharp Page 6 Also in reviewing your question, the Commonwealth Court in its ruling in Phillips, supra, at page 661, directs us to construe coverage of the Ethics Law broadly, rather than narrowly, and conversely, directs that exclusions from the Ethics Law should be narrowly construed. Based upon this statute and the regulations and opinions of this Commission, in light of your job functions and the information available to us, we conclude that you are a "public employee" under the Public Official and Employee Ethics Law. It is clear that in your capacity as .a Legislative Assistant, you have the ability to recommend official action with respect to subparagraph 5 within the definition of "public employee" as set forth in the Ethics Law, 65 P.S. Section 402. Specifically, in your classification as a research analyst, you performed research on specialized and policy issues and made recommendations thereon to the Senator. You also performed legislative analysis and were involved in the development of proposed legislation as well as providing assistance in the direction of legislation and amendments along with other delineated duties and responsibilities. These activities fall within the definition of public employee as contained in the Act and the regulations of the Commission in Section 1.1, subparagraph B(II), 51 Pa. Code 1.1. Under these circumstances and given your duties and responsibilities as outlined above, you are a "public employee" as that term is defined in the Ethics Law. As to the argument that your classification as a "public employee" is inconsistent with Harbach, Advice 90 -528, we note that the job description of Harbach is substantially different from your own. The job description of Harbach states that as a district office assistant he was limited to telephone inquiries, constituent contacts, the preparation of press releases and letters at the direction of the Representative. Those proffered duties are quite limited and relate to ministerial functions. In addition, we note that the cited advisory was issued subject to the qualification that the job description of Harbach "constitute[d] a comprehensive description of [his] duties." We hasten to note that in numerous opinions and advices of counsel, it has been consistently held that individuals performing functions similar to yours are to be considered public employees under the State Ethics Law. We conclude that you as the Legislative Assistant in the Office of Senator Baker were a public employee as that term is defined in the Public Official and Employee Ethics Law and the Regulation of this Commission. 65 P.S. 402; 51 Pa. Code Section 1.1. As such, your conduct is subject to the provisions of that law. Further, upon termination of service, you became a former public employee subject to Section 3(g) of the Ethics Law. Section 3. Restricted activities. Section 2. Definitions. "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. "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body, or other establishment in the Executive, Legislative or Judicial Branch of a State, a nation, or a political subdivision thereof or an agency performing a governmental function. To resolve the issue as to whether you would be limited to the Office of Senator Baker or to all of the Senate, the focus of our attention must be directed to the above quoted definition "Governmental body with which a public official or public employee is or has been associated" since the definition is specifically used within the restrictive language of Section 3(g). In applying the above definition to the instant matter, we must conclude that the governmental body with which you were associated is the Pennsylvania Senate. We arrive at this result based upon our analysis in Sirolli, Opinion 90 -006. You seek to limit the representation restriction to the Office of Senator Baker. Under Act 170 of 1978, this Commission did narrowly limit the former governmental body to only that subdivision where the former public official /employee exercised control and influence. Ewing, Opinion 79 -010. Mr. Jeffrey Sharp Page 7 (g) No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one'year after he leaves that body. In addition, the following terms are defined under the Ethics Law: As we noted in Sirolli, supra, during our sunset review process and during the debate on House Bill 75, criticism was made about our prior decisions regarding the narrow interpretation applied to the term governmental body. Thereafter, on February 15, 1989, an amendment was offered to the definition of "Governmental body with which a public official or employee is or has been associated" to include the phrase Mr. Jeffrey Sharp Page 8 and subdivisions and offices within that entity." The following reflects the reason for the amendment which was subsequently adopted: This amendment deals with a narrow situation which we discovered in hearings on this subject in the Judiciary Committee last session. Employees, for instance, of the Pennsylvania Department of Transportation who worked for one engineering district were found by a decision of the Ethics Commission to be able to, immediately upon retiring or leaving employment, represent clients in practice with other parts of the Pennsylvania Department of Transportation, including their neighboring engineering district. We sought to make particularly clear that when we are prohibiting for 1 year that revolving -door kind of conduct, we are dealing not only with a particular subdivision of an agency or a local government but the entire unit, and my language simply makes it clear in the definition of "governmental body" that we are including subdivisions and offices within that entity. Legislative Journal of House, 1989 Session, No. 15 at 190, 291. Subsequently, on June 12, 1989 the phraseology of the definition was again amended to delete the word "entity" and substitute "governmental body ". The latter amendment was made in Senate Committee without comment. The General Assembly has thus amended the definition at issue with the intent to broaden that definition to include the entire governmental body and not merely the . subdivisions therein. Since the General Assembly has duly enacted this change, we must carry out the legislative intent. See 1 Pa. C.S.A. 1921(A) which provides in part: (a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. See also 1 Pa. C.S.A. 1901. Your argument that your influence did not extend beyond the Office of Senator Baker is unavailing. Although our decision under Act 170 of 1978 limited governmental body to that area where there was influence and control, the General Assembly disagreed with our interpretation and broadened the restriction. We must follow their amendment to our Act. Sirolli, supra. Mr. Jeffrey Sharp Page 9 We also note that we have on seven occasions since the passage of Act 9 of 1989 applied the provisions of Section 3(g) to determine what constituted a former public official /employee's governmental, body. In Popovich, Opinion 89 -005, we determined that a public employee who worked in a district office of PennDot was restricted for a period of one year after termination of service to all of PennDot. The application of former governmental body was extended further in Nixon, Opinion 89 -006. In the cited case, the public employee served as the marketing director in the Department of General Services (DGS). Because the influence and input of the marketing director extended beyond DGS, we found that the former governmental body included all of DGS but could also extend to other agencies as well. In confidential Opinion, 89 -019, we opined that the former governmental body of a public employee who worked in the director's office of a municipality extended to the municipality and not merely the director's office. In Morris, Opinion 89 -026 we found that a former member of the Pennsylvania Health Care Cost Containment Council was restricted for a one year period from representing a person before that Council., We decided in Pollock, Opinion 89 -031, that the former governmental body of a Pittsburgh City Council member was not merely limited to Council but to the entire City of Pittsburgh including other government units and authorities in Pittsburgh. Parenthetically, our decision in the cited case resulted in part from testimony from the Councilmember as to the inter connection and commingling of functions as to the various governmental units within the City of Pittsburgh. In Hitt, Opinion 90 -005, we determined that the former manager of the Commercial and Industrial Section of the Office of the Director of Assessments of Allegheny County was restricted under Section 3(g) of the Ethics Law from representing a person not only before that body but also the County Board of Property Assessment, Appeals and Review. Finally, in Sirolli, supra, we concluded that a former division director of the Case Management Program in the Department of Public Welfare (DPW) was restricted for a period of one year from representing a person before DPW. As to the arguments you proffer in challenging the Advice, we believe that the legislative intent has been followed. The fact that the Senate made another amendment without comment which inserted "governmental body" in place of "entity" does not negate or lessen the stated intent as to the overall purpose of the amendment... Mr. Jeffrey Sharp Page 10 Your assertion that the Advice is inconsistent with Advice No. 89- 525-C is unavailing since the latter was issued under Act 170 of 1978 while the Advice under appeal was issued under Act 9 of 1989 which broadened the definition of governmental body. Finally since the Advice follows the Ethics Law, the intent of the General Assembly and prior precedent of this Commission interpreting Act 9 of 1989, we will accordingly affirm the Advice of Counsel. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. IV. Conclusion: The Legislative Assistant of a Pennsylvania Senator is a public employee subject to the provisions of the Ethics Law. Upon termination of service, the former employee would be restricted for a period of one year from representing a person before the Pennsylvania Senate.. The Advice of Counsel is affirmed. Pursuant to Section 7(9)(i), this Opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any 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, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By t - Commissi n A elena G. hair Commissioner Robert W. Brown, Vice governmental body being the Senate Hughes, Chair, only concurs as to the former