HomeMy WebLinkAbout96-005 MaatmanOPINION OF THE COMMISSION
Joy Maatman
1 15 Ridgeview Drive
Etters, PA 17319
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
Before: Daneen E. Reese, Chair
Austin M. Lee, Vice Chair
Roy W. Wilt
Allan M. Kluger
Boyd E. Wolff
DATE DECIDED: 11/5/96
DATE MAILED: 11/13/96
96 -005
Re: Public Employee; Executive -Level State Employee; Section 3(i); Section 3(g);
Assistant Scheduler; Governor's Office; Scheduling and Advance Office;
Termination of Service; Employment; Government and Public Relations Firm.
Dear Ms. Maatman:
This Opinion is issued in response to your advisory request on August 20, 1996.
I. ISSUE:
Whether an Assistant Scheduler in the Governor's Office is an executive level
state employee or public employee subject to the restrictions of Section 3(i) and (g)
of the Public Official and Employee Ethics Law following termination of service.
II. FACTUAL BASIS FOR DETERMINATION:
You served as Assistant Scheduler in the Governor's Scheduling and Advance
Office from January 2, 1996 to July 19, 1996. You were also an intern with the
Governor's Scheduling and Advance Office from May, 1995 to December, 1995. You
have submitted copies of your job description as Assistant Scheduler, as well as the
job description for the Scheduler, both of which are incorporated herein by reference.
It is noted that according to your job description, your duties included administering
the Scheduler's duties during periods of excess workload and periods of vacation and
emergencies.
Your primary duties as Assistant Scheduler were organizing the office and
assisting the Scheduler. You did not interact with the Governor's staff concerning
issues or control access to the Governor. Your position was related to operations, not
policy.
Maatman, 96 -005
November 6, 1996
Page 2
On July 29, 1996, you accepted employment with Greenlee Associates, a
government and public relations firm in Harrisburg. You were not hired to serve in a
lobbying capacity.
You believe that your former duties as Assistant Scheduler are outside those of
a "public employee" as defined in the Ethics Law, such that you may not be subject
to the restrictions placed upon former public employees. However, you inquire as to
whether the restrictions as to a former "executive level state employee" would apply
to you.
The job description of an Assistant Scheduler lists the following duties: assisting
the Scheduler and administering his duties during an excess workload or his
unavailability, creating and distributing the Governor's daily schedule and collecting
and distributing all gubernatorial briefing material.
Since the Assistant Scheduler may, under certain circumstances, act in place
of the Scheduler, the job description of that position must also be reviewed. The
Scheduler has the following duties: develop and coordinate the Governor's schedule;
maintain close liaison with the Governor and staff; coordinate logistical support as to
the Governor's movements; notify appropriate parties of events and meetings as to the
Governor; distribute briefing information; issue proper staffing for Governor's events
and meetings; schedule senior staff time requests; and report activities to the Director
of Scheduling and Advance.
III. Discussion:
We must determine whether an Assistant Scheduler for the Governor's
Scheduling and Advance Office is a "public employee" or an "executive level state
employee" within the definition of these terms as set forth in the Public Official and
Employee Ethics Law and the Regulations of this Commission. 65 P.S. §402; 51 Pa.
Code § 1 1.1.
Those two terms are defined in the Ethics Law as follows:
Section 2. Definitions.
"Executive -level State employee." The Governor,
Lieutenant Governor, cabinet members, deputy secretaries,
the Governor's office staff, any State employee with
discretionary powers which may affect the outcome of a
State agency's decision in relation to a private corporation
or business or any employee who by virtue of his job
function could influence the outcome of such a decision.
"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;
Maatman, 96 -005
November 6, 1996
Page 3
follows:
(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 Regulations expand upon the definition of the term "public employee" as
(ii) The following criteria will be used, in part, to determine
whether an individual is within the definition of "public employee ":
(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.
Maatmart, 96 -005
November 6, 1996
Page 4
(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 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 § 1 1.1.
Under the above definition, we conclude that you are an "executive level state
employee." That definition specifically includes ". . . the Governor's office staff..."
Since you are an Assistant Scheduler in the Governor's Office, you are part of the
Governor's office staff and hence are an executive level state employee.
As to the question of whether you are a public employee, we must determine
whether your duties fall within the statutory definitions or regulations quoted above.
Based upon the definition of "public employee" and the job description for the
position, and the explanation of the Assistant Scheduler position as set forth therein,
we conclude that you are not to be considered a "public employee" as that term is
defined in the State Ethics Law. This conclusion is based upon our objective review
of this information from which it appears that you are not responsible for taking or
Maatman, 96 -005
November 6, 1996
Page 5
recommending official action of a non - ministerial nature with regard to any of the five
categories set forth in the definition listed above for the term "public employee."
Since you have now left Commonwealth service and have become a former
executive level state employee, but not a former public employee, we shall advise you
of the restrictions imposed by Section 3(i) of the Ethics Law.
Before making such review, we note that Sections 3(b) and 3(c) of the Ethics
Law provide in part that no person shall offer to a public official /employee anything of
monetary value and no public official /employee shall solicit or accept anything of
monetary value based upon the understanding that the vote, official action, or
judgement of the public official /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.
Section 3(i) of the Ethics Law provides:
Section 3. Restricted Activities
(i) No former executive -level State employee may
for a period of two years from the time that he terminates
his State employment be employed by, receive
compensation from, assist or act in a representative
capacity for a business or corporation that he actively
participates in recruiting to the Commonwealth of
Pennsylvania or that he actively participated in inducing to
open a new plant, facility or branch in the Commonwealth
or that he actively participated in inducing to expand an
existent plant or facility within the Commonwealth,
provided that the above prohibition shall be invoked only
when the recruitment or inducement is accomplished by a
grant or loan of money or a promise of a grant or loan of
money from the Commonwealth to the business or
corporation recruited or induced to expand.
As to Section 3(i) of the Ethics Law, you are subject to that provision of law
since you were an executive -level state employee. Section 3(i) would not restrict you
from the position of employment with Greenlee Associates provided you did not
actively participate in recruiting or inducing Greenlee Associates to open a new facility
or branch in the Commonwealth or participate in inducing Greenlee Associates to
expand an existing plant or facility that was accomplished by a grant or loan of money
or a promise of a grant or loan of money from the Commonwealth of Pennsylvania to
Greenlee Associates. We recognize, given the business nature of Greenlee Associates
and your former position in the Governor's Office, that it is highly unlikely that you
were involved in the recruitment /inducement as to the opening or expansion of any
business.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Law; the applicability of any other statute, code, ordinance, regulation or other
Maatman, 96 -005
November 6, 1996
Page 6
code of conduct other than the Ethics Act has not been considered in that they do not
involve an interpretation of the Ethics Law.
IV. Conclusion:
In the former capacity as Assistant Scheduler for the Governor's Scheduling and
Advance Office, you were not a public employee but an executive -level state employee
subject to the provisions of Section 3(i) of the Ethics Law. Section 3(i) would not
prohibit you from accepting a position of employment with Greenlee Associates based
upon the assumptions that you did not actively participate in recruiting Greenlee
Associates to Pennsylvania, and that you did not actively participate in recruiting or
inducing Greenlee Associates to open or expand a facility or branch in Pennsylvania
through a grant or loan of money or a promise of a grant or loan of money from the
Commonwealth of Pennsylvania. The propriety of the proposed conduct has only been
addressed under the Ethics Law.
Pursuant to Section 7(10), the person who acts in good faith on this opinion
issued to him shall not be subject to criminal or civil penalties for so acting provided
the material facts are as stated in the request.
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 thirty 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.
B y the Commission,
aercuputsAti6 taue„)
Daneen E. Reese
Chair