HomeMy WebLinkAbout80-582 Davisc
TO:
DISCUSSION:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
March 19, 1980
ADVICE OF CHIEF COUNSEL
Edward C. Hussie
Majority Leader
Suite 113, Main Capital
Harrisburg, PA 17120
RE: Coverage by the State Ethics
House of Representatives.
FACTS:
Advice I) 80 -582
Russel Davis
Minority Leader
Room 421, Main Capital
Harrisburg, PA 17120
Act of Employees of the
On January 17, 1980, Edward C. Hussie wrote this office
asking for guidelines concerning the coverage of employees
of the House of Representatives by the State Ethics Act.
The request is attached hereto to this advice and made
a part of it so as to avoid duplication in this fact section.
The answers to the questions presented parallel the letter
paragraph by paragraph.
The central issue presented is where is the line drawn
among employees of the House of Representatives as to who is
a public employee, and who is not a public employee.
(A) ATTORNEYS, COMMITTEE EXECUTIVE DIRECTORS, RESEARCH ANALYSTS AND
OTHER STAFF ADVISORS, IRRESPECTIVE OF TITLE, WHO PERFORM A SEARCH,
LEGAL AND COUNSELING FUNCTIONS INVOLVING LEGISLATIVE MATTERS
Generally, attorneys are subject to the State Ethics Act
as public employees because by training and profession their
role is to "recommend official action of a nonministerial nature
with regard to ... and activity where the official action has
an economic impact of greater than a de minimus nature in the
interests of any person." 65 P.S. 402, definition of public
employee.
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Hussie, Davis
March 19, 1980
Page 2
However, certain attorneys, recent graduates for
example, may have positions which do not require a law
degree and which involve assisting other employees. Where
these attorneys have no direct communication with any public
official, their position is not one which require their
coverage as a public employee under the State Ethics Act.
Therefore, we would hold that attorneys, committee
executive directors, research analysts and other staff
advisors (regardless of title) must file Statements of
Financial Interests whenever their duties involve recommendations
to public officials relating to official legislative action.
Where an individual communicates primarily to a public
official, that person is a public employee in contrast with
the individual who communicates primarily with another public
employee.
(A) STAFF ADMINISTRATORS, EXECUTIVE ASSISTANTS, PURCHASING AGENTS,
STAFF SUPERVISORS AND ADMINISTRATIVE ASSISTANTS.
A Staff administrator who is directed by a legislative
leader to make a purchase is performing a ministerial act, even
though, on occasion, he leaves the selection of a specific
vendor to the descretion of the administrator.
A personnel administrator who has authority to hire and
fire employees does not by reason of this authority become
a public employee. Pursuant to Section 2.10 of the regulations,
a public employee is an individual who engages in activities
which result in a cost being placed upon a group of citizens,
and not on personnel. On the other hand, an individual who
has the ability to "create" openings, set position salaries,
and prepare budgets would be covered as a public employee.
(C) FISCAL EMPLOYEES
Fiscal employees who have the final judgment in "In- House"
pre -audit functions are covered by the State Ethics Act as
public employees.
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Hussie, Davis
March 19, 1980
Page 3
(D) -(G) PUBLIC INFORMATION EMPLOYEES, FIELD SERVICE AND HOME
DISTRICT EMPLOYEES, SECRETARIES, ADMINISTRATIVE ASSISTANTS
Public information employees, field service and home
district employees, secretaries, administrative assistants,
and other House employees as outlined in the opinion request
are not subject to the State Ethics Act as public employees.
We do wish to emphasize however, that Section 3(b) of
the State Ethics Act applies to all persons whether they be
public employees are not. Further, the Commission may address
other areas of possible conflict under Section 3(d) of the Act.
This authority is not limited to public employees or public
officials.
(H) OFFICERS
The chief clerk, secretary, and comptroller, while
officers under Act 104, are public employees under the
State Ethics Act. Similarly, the Parliamentarian is a
public employee.
Secretaries, administrative assistants, clerk - messengers,
specifically designated under Act 417 of 1967 as officers
of the House of Representatives, are neither public employees
nor public officials if their duties are purely ministerial.
Therefore, they have no disclosure obligations under the State
Ethics Act.
CONCLUSION:
Staff attorneys, committee executive directors, research
analysts, and other staff advisors must file Statements of
Financial Interests whenever their duties involve recommendation
to public officials relating to official legislative action. A
staff administrator who is directed by a legislative leader to
make purchases is performing a ministerial act, and is not subject
to the disclosure requirements of the State Ethics Act. Fiscal
employees who have the final judgment in "In House" pre -audit
functions are subject to the disclosure requirements of the State
Ethics Act as public employees.
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Hussie, Davis
March 19, 1980
Page 4
DRM /rdp -2
Public information employees, field service and home
district employees, secretaries, administrative assistants,
sergeants -at -arms, pages, messengers, clerks, superintendents
in charge of supplies or equipment, duplication equipment
operators, custodial and maintenance employees are not subject
to the disclosure requirements of the State Ethics Act. They
are however subject to the restricted activities portion of
the Act.
The chief clerk, secretary, comptroller, and parlimentarian
are public employees.
Pursuant to Section 7(9)(ii), 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, p roviding the
requester has disclosed truthfully all the material facts
and committed the acts complained of in reliance on the
advice given.
A personal appearance before the Commission and a
formal opinion will be issued upon your request if you
feel this reply does not suffice.
This letter is a public record and will be made
available as such.
D it
DAVID RITTENHOUSE MORRISON
Chief Counsel