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HomeMy WebLinkAbout04-001 BrantAdam M. Shienvold, Esq. Eckert, Seamans, Cherin & Mellott, LLC Eighth Floor, 213 Market Street Harrisburg, PA 17101 Re: Public Employee; Vocational Rehabilitation Pre - Vocational Instructor; Hiram G. Andrews Center; Office of Vocational Rehabilitation; Department of Labor and Industry; Section 1103(g); Appeal of Advice. Dear Mr. Shienvold: OPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Donald M. McCurdy Michael J. Healey Paul M. Henry Raquel K. Bergen DATE DECIDED: 3/12/04 DATE MAILED: 326/04 04 -001 This Opinion is issued in response to the appeal of Advice of Counsel, 03 -597, which was issued on October 22, 2003. I. ISSUE: Whether a former Vocational Rehabilitation Pre - Vocational Instructor with the Office of Vocational Rehabilitation, Department of Labor and Industry, would be considered a "former public employee" subject to the post-employment restrictions of the Public Official and Employee Ethics Act subject Act "), 65 Pa.C.S. § 1101. II. FACTUAL BASIS FOR DETERMINATION: As counsel for Tim Brant "Brant" , a former Vocational Rehabilitation Pre - Vocational Instructor at the Hiram G. Andrews Center in the Office of Vocational Rehabilitation, Department of Labor and Industry, you have questioned Zatko, Advice of Counsel, 03 -597, issued to Brant on October 22, 2003, through his former attorney. Specifically, you have requested clarification or, in the alternative, supplemental advice, which request has been treated as an appeal of the Advice of Counsel. The initial advisory request letter indicated that following 11 years of teaching at the Shienvold /Brant 04 -001 March 26, 2004 Page 2 Hiram G. Andrews Center, Brant left his Commonwealth position to open his own business as a private instructor. The question posed was whether Brant could accept contract work from the Hiram G. Andrews Center without transgressing the Ethics Act. Various arguments were presented that Section 1103(g) of the Ethics Act, a one -year revolving door provision applicable to former public officials and former public employees, should not apply to Brant. These arguments were based upon the contention that Brant fell within an exclusion in the statutory definition of the term "public employee" for individuals who are employed by the Commonwealth or a political subdivision of the Commonwealth in teaching as distinguished from administrative duties. (See, 65 Pa.C.S. § 1102). Specifically, it was argued that Brant's role was identical to the role of "other teachers" at the Hiram G. Andrews Center; that Brant could evaluate potential students for entrance into the program and could schedule enrolled students for evaluations with occupational therapists, but could not control the scheduling of students whom the administration would ultimately enroll; and that Brant could submit requests for necessary supplies, but could not control the ordering of or payment for such supplies. Copies of the job description and job classification specifications for Brant's former position were submitted to this Commission, which documents are incorporated herein by reference. Per the incorporated documents, Brant's former job duties included, but were not limited to, the following: (1) assisting the supervisory and administrative staff in program development, evaluation and implementation; (2) objectively evaluating potential students for entrance into the Driver Education Program; (3) scheduling evaluations involving occupational therapists and referring parties; (4) developing curriculum materials and teaching techniques; (5) researching, developing and evaluating methods for adapting machinery, equipment, and techniques to make appropriate adaptations to compensate for students with special needs; (6) assisting when necessary in preparing and adapting all instructional activities and materials, and in determining and preparing Agency Purchase Requests for supplies and equipment needed for instruction; and making decisions relative to providing direction and coordination of communications to other instructors and staff providing rehabilitation /instruction services to students enrolled in the Driver Education Program. Advice of Counsel, 03 -597, determined that in his former Commonwealth position as a Vocational Rehabilitation Pre - Vocational Instructor at the Hiram G. Andrews Center, Brant would be considered a "public employee" subject to the Ethics Act, such that upon termination of Commonwealth service, Brant became a "former public employee" subject to Section 1103(g ) of the Ethics Act. The Advice of Counsel determined that the governmental body with which Brant had been associated was the Department of Labor and Industry in its entirety including, but not limited to, the Office of Vocational Rehabilitation. The Advice of Counsel set forth the restrictions of Section 1103(g) of the Ethics Act as applicable to Brant. The Advice of Counsel specifically determined that Brant would not be permitted to accept contract work from the Hiram G. Andrews Center within one year of terminating service with the Department of Labor and Industry, as he would be engaging in prohibited representation before his former governmental body in contravention of Section 1103(g) of the Ethics Act. In your letter of November 21, 2003, which has been deemed an appeal of Advice of Counsel, 03 -597, you have proffered the following arguments /points. (7) Shienvold /Brant 04 -001 March 26, 2004 Page 3 You contend that Brant was employed in teaching as distinguished from administrative duties, so as to qualify for the teacher exclusion to the definition of "public employee." In support of your contention, ou state that the position of vocational rehabilitation pre- vocational instructor at the Hiram G. Andrews Center is a teaching position. You quote portions of the job description, which describe the position as professional education work requiring six college level credits in teaching methods, or one year of training or instructing, and successfully passing the qualifying examination. You note that Brant has a degree in health and physical education as well as a teaching certificate. You state that when Brant was hired by the Hiram G. Andrews Center, he was advised that a valid and current certification from the Pennsylvania Department of Education was a prerequisite to any offer of employment. You contend that the Advice of Counsel did not address whether Brant qualified under the teacher exclusion within the definition of "public employee." You contend that a vocational rehabilitation pre - vocational instructor has no management responsibility, no scheduling authority, no signature authority, and no supervisory role. You further contend that the responsibilities of a vocational rehabilitation pre- vocational instructor are limited and ministerial in nature, or have only a de minimis economic impact on any person, and that Brant should therefore be exempted from the restrictions of the Ethics Act. You note the Advice's reference to the "Position Purpose" portion of Brant's job description, which states, inter alia, that Brant had the authority to assist where necessary in determining and preparing Agency Purchase Requests for supplies and equipment needed for instruction. Although you acknowledge that Brant's former position did include such authority to prepare Agency Purchase Requests, you note that the 'Description of Duties" portion of Brant's job description contained no reference to preparation of Agency Purchase Requests. You assert that such requests were limited to supplies necessary for classroom instruction and could only be prepared with the permission and supervision of the vocational rehabilitation instructor supervisor. You contend that Brant's authority to assist in the preparation of Agency Purchase Requests for supplies and equipment needed for instruction was such a limited, conditional authority as to render it ministerial in nature and unlikely to have an economic impact of greater than a de minimis nature on the interests of any person. By letter dated February 2, 2004, you were notified of the date, time and location of the public meeting at which your request would be considered. On March 5, 2004, this Commission received your Brief in which you contend that no person in Brant's former Commonwealth position has any authority to take or recommend nonministerial action with respect to any of the delineated areas in the Ethics Act's definition of the term "public employee." Specifically with regard to purchasing, you state that a person in Brant's former position has no authority to approve or authorize Agency Purchase Requests or any other expenditure of funds, but only has the ministerial task of completing Agency Purchase Requests for necessary supplies. Citing the requirements of the Statutory Construction Act, 1 Pa.C.S. § 1901 et seq., definitions of the words "teaching" and "administrative," and a prior Advice of Counsel, you argue that the teacher exclusion is mandatory and applies to Brant. You state that Brant's duties were confined to teaching, monitoring, evaluating and testing students in the field of driver education, and that Brant had no administrative responsibilities or authority. You reiterate that the job classification specifications for Brant's former position describe the position as professional education work that includes providing instruction and developing curriculum materials and teaching techniques, and that requires, inter alia, six college level credits in teaching methods or one year of training or instructing. You assert that neither the Hiram G. Andrews Center, Office of Vocational Rehabilitation, nor the Department of Labor & Industry ever considered Brant to be a "public employee," having never required Brant —or to Brant's knowledge, any other Vocational Shienvold /Brant 04 -001 March 26, 2004 Page 4 Rehabilitation Pre - Vocational Instructor at the Hiram G. Andrews Center - -to file Statements of Financial Interests. Finally, based upon your view that Brant was not a public employee, you contend that it is impossible for him to now be a "former public employee" within the meaning of Section 1103(g). You note that in determining legislative intent, all sections of a statute must be read together and in conjunction with each other. At the public meeting on March 12, 2004, you appeared and offered commentary that may be fairly summarized as follows. Factually, you have only submitted the first of four pages of Brant's job description because you have been unable to secure the entire job description. You contend that Brant's former position did not include duties /authority falling within the Ethics Act's definition of the term "public employee." You argue that the "Position Purpose" portion of Brant's job description did not define duties, and the "Duties" section did not include administrative responsibilities. You submit that Brant's involvement in purchasing was limited to requesting supplies necessary to conduct his role as a teacher, which you characterize as a necessary incident to teaching. You state that the Agency Purchase Requests went through several stages of review by other individuals and that it was the Business Office that ultimately decided who bought what from where. You assert that Brant falls within the teacher exemption to the definition of public employee and that a contrary conclusion would overrule the determination by the Hiram G. Andrews Center, the Office of Vocational Rehabilitation, and the Department of Labor and Industry that persons in this position need not file Statements of Financial Interests. Our review of this matter is de novo. III. 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 requestor based upon the facts that the requestor has submitted. In issuing the advisory based upon the facts that the requestor has submitted, this Commission does not engage 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 requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. The instant matter pertains to the post - employment restrictions of Section 1103(g) of the Ethics Act. Section 1103(g) restricts a former public official /public employee with regard to "representing" a "person" before "the governmental body with which he has been associated ": § 1103. Restricted activities (g) Former official or employee. - -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. 65 Pa.C.S. § 1103(g) (Emphasis added). The terms "represent," "person," and "governmental body with which a public official or public employee is or has been associated" are specifically defined in the Ethics Act as follows: Shienvold /Brant 04 -001 March 26, 2004 Page 5 § 1102. Definitions "Represent." To act on behalf of any other person in any activity which includes, but is not limited to, the following: personal appearances, negotiations, lobbying and submitting bid or contract proposals which are signed by or contain the name of a former public official or public employee. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. "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. 65 Pa.C.S. § 1102. This Commission has held that a former "public official" or former "public employee" may not contract with his former governmental body during the first year following termination of public service, because such contracting would constitute prohibited representation before the former governmental body in contravention of Section 1103(g) of the Ethics Act. See, Shaub, Order 1242; Confidential Opinion, 97 -008; Confidential Opinion, 93 -005. The restrictions of Section 1103(g ) only apply to persons qualifying as former public officials and former public employees under the definitions and criteria set forth in the Ethics Act and Commission Regulations. Therefore, the key issue before this Commission is whether in his former position, Brant was within the Ethics Act's definition of "public employee," so as to now be a former public employee subject to Section 1103(g). 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: (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. Shienvold /Brant 04 -001 March 26, 2004 Page 6 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. (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 Shienvold /Brant 04 -001 March 26, 2004 Page 7 inspectors, investigators, auditors, sewer enforcement officers and zoning officers in all governmental bodies. (E) Court administrators, assistants for fiscal affairs and deputies for theminorjudiciary. (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 an objective test. The objective test applies the above definition and 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. Thus, the objective test considers what an individual has the authority to do in a given position, rather than the variable functions that the individual may actually perform in that position. See, Philips v. State Ethics Commission, 470 A.2d 659 (Pa. Commw. Ct. 1984); Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982); Shearer, Opinion 03 -011. Furthermore, the Commonwealth Court of Pennsylvania has directed that coverage under the Ethics Act be construed broadly and that exclusions under the Ethics Act be construed narrowly. See, Phillips, supra. In the instant matter, the Advice of Counsel applied the objective test and concluded that in his former Commonwealth position, Brant was a "public employee" as defined by the Ethics Act. However, having considered the facts and arguments brought forth through this appeal, and having reviewed the key language in Brant's former job description that formed the basis for the Advice of Counsel, we have determined that the Advice of Counsel reached an erroneous conclusion as the result of imprecise and ambiguous language in the job description. In particular, the language in the "Position Purpose" portion of the job description that Brant had authority to assist "where necessary ... in determining and preparing Agency Purchase Requests for supplies and equipment needed for instruction" (Job Description at 1) is capable of multiple meanings. With the clarity that has been afforded through this appeal, the correct meaning would be as to the ministerial preparation of Agency Purchase Requests, as opposed to any 'determination" in the sense of authorizing the requests or selecting from among vendors or brands. Therefore, we hold specifically as to Brant, and without addressing any other employees, that in his former capacity as a as a Vocational Rehabilitation Pre - Vocational Instructor at the Hiram G. Andrews Center, Brant was within the teacher exclusion to the definition of "public employee," such that now, he is not a former public employee and is not subject to the restrictions of Section 1103(g) of the Ethics Act. Shienvold /Brant 04 -001 March 26, 2004 Page 8 Based upon the above analysis, your other arguments need not be addressed. We grant the appeal and reverse Zatko, Advice of Counsel 03 -597. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. IV. CONCLUSION: As a former Vocational Rehabilitation Pre - Vocational Instructor at the Hiram G. Andrews Center in the Office of Vocational Rehabilitation, Department of Labor and Industry, Tim Brant is not a "former public employee" and is not subject to the restrictions of Section 1103() of the Public Official and Employee Ethics Act, 65 Pa. C.S. §1103(g). The appeal is granted. Advice of Counsel 03 -597 is reversed. The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(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, a party 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 party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). By the Commission, Louis W. Fryman Chair Commissioner Donald M. McCurdy, Esquire, dissents.