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HomeMy WebLinkAbout25-549 Scannella PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL November 5, 2025 To the Requester: Samuel Scannella 25-549 Dear Mr. Scannella: This responds to your email received October 27, 2025, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as tothe issue presented below: Issue: Whether, as an annuitant providing services to the Governor’s Office of Administration, Enterprise Technology Services Office, under the 95-day “return to state service provision” at 71 Pa.C.S. § 5706(A.1), you would be considered a “public employee” subject to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 etseq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq., such that when you would cease providing services as an annuitant, the post-employment restrictions of Section 1103(g) of the Ethics Act would become applicable to you. Brief Answer:NO. Upon review of the submitted facts, as an annuitant providing services to the Governor’s Office of Administration, Enterprise Technology Services Office, you are not a “public employee” subject to the provisions of the Ethics Act and the Regulations of the State Ethics Commission. Consequently, the post-employment restrictions of Section 1103(g) of the Ethics Act would not become applicable to you when you would cease providing services as an annuitant. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. Scannella, 25-549 November 5, 2025 Page 2 You retired from your Commonwealth employment in April 2023. Following your retirement from the Commonwealth, you returned to work with the Commonwealth as an annuitant under the 95-day “return to state service provision” at 71 Pa.C.S. § 5706(A.1) (“Annuitant Program”). You are currently providing services to the Governor’s Office of Administration, Enterprise Technology Services Office, in support of the Infrastructure and Economic Development Delivery Center and the Pennsylvania Department of Transportation (“PennDOT”). As an annuitant, you are serving in the position of Database Administrator 2. You have been providing IBM mainframe database (IMS and DB/2) support, which is essential for the continuous operations of some of PennDOT’s enterprise level computer applications. You are also very involved in many IT modernization projects to continue moving from mainframe solutions to more modernized service-based architecture. Over the past two and one-half years, it has become apparent that the 95-day limit imposed on your provision of services under the Annuitant Program prevents you from being available to properly support PennDOT’s needs, especially when there are off-hours emergencies or regularly scheduled software upgrades and application maintenance on weekday evenings or weekends. If you could provide your services in a contracted position through the OST Staff Augmentation contract instead of as an annuitant, you would be able to increase your availability from approximately ten to fifteen hours per week to twenty hours per week. You seek guidance as to whether the one-year post-employment restrictions of Section 1103(g) of the Ethics Act would become applicable to you upon termination of your service as an annuitant. In particular, you ask whether Section 1103(g) of the Ethics Act would prohibit you from contracting to provide services in support of the Infrastructure and Economic Development Delivery Center and PennDOT. You have submitted a copy of an email (“the Justification”) pertaining to the request for your services as an annuitant for 2025, which document is incorporated herein by reference. The Justification sets forth the reasons for the request for your annuitant services and lists your proposed duties as an annuitant for 2025 as follows: Provides IMS and DB2 database administration and technical functions including the logical and physical database design and configuration; Responsible for the development and implementation of database recovery, reorganization, and backup procedures as well as the monitoring of database performance; Provides technical assistance to application developers for problems and procedures related to the use of IMS and DB2; Ensures systems have adequate on-line storage resources to support the current operating environment and plan for new development and anticipated expansion of databases; Assists application developers and information center personnel in the use of enterprise server databases for the development of production, test, and end user computing applications; Scannella, 25-549 November 5, 2025 Page 3 Provides administrative and technical services to manage information through centrally managed data sources and repositories and provides an accessible base of information for applications; Provides data requirements and develops data models for new systems development while providing direction to existing systems for future development initiatives; Provides planning, logical data modeling, and related system administrator functions to allow for the development of Client Server based applications; Schedules and performs work activities so that maximum availability of enterprise server databases is maintained; Interfaces with the Executive Software Services Section to develop proper procedures for the use of all software required to maintain an effective and efficient production environment; and Guides operations personnel in proper restart/recovery procedures. Justification, at 1-2. A copy of the job classification specifications for the position of Database Administrator 2 (job code 01533) has been obtained and is incorporated herein by reference. Per the job classification specifications under job code 01533, a Database Administrator 2 performs highly advanced technical and administrative work in directing the management of data resources through the planning, design, implementation, and operation of major database systems. Examples of the work performed by a Database Administrator 2 include: Directs and participates in the creation, maintenance, and modification of physical databases characterized by complex system architecture including the database storage structures and database objects and ensures that appropriate links exist and that keys are established to provide processing efficiency; Directs and participates in the design and planning of large centralized and distributed database structures or system architecture consistent with varied and extensive applications, operations, and networking goals and objectives; Develops and establishes database and data administration policies, procedures, and standards pertaining to database design and use, database structure, database integrity, security, configuration, naming conventions, data elements, data dictionary, data sharing, entity relationship diagrams and methodologies, and quality assurance; Directs and participates in establishing and defining database backup and recovery procedures; Manages system performance through the use of system diagnostic reports; Recommends software and hardware upgrades and enhancements to ensure optimal database performance based on current and future requirements; Directs the development and implementation of security standards and procedures; Directs the development of database management system manuals to document procedures for defining, creating, revising, and controlling databases; Directs the development and documentation of database performance and archiving standards; Leads strategic planning efforts for database administration; Scannella, 25-549 November 5, 2025 Page 4 Develops and administers the disaster recovery and continuity of government plans; Deploys databases and database objects into environments to support enhanced or newly developed applications; Directs the development of ad hoc queries and reports for users on the data housed in the database; Directs the development of reports on the performance and capacity of the database such as metrics, capacity, transactions per second, and user data; Serves as a consultant in information technology planning activities with information technology professionals and business analysts; Directs and participates in the analysis of business processes, procedures, and problems to develop database and data solutions to meet business needs; Directs the design, development, implementation, and maintenance of an agency level data dictionary and metadata repository; and Develops standards and practices that promote the reuse of existing or common data stores, data elements, and components. Job Classification Specifications, Job Code 01533, at 1-2. 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 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 requester to truthfully disclose all of the materialfacts 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. When an individual who has retired from Commonwealth service returns to Commonwealth service as an annuitant to perform services falling within the Ethics Act’s definition of “public employee” (see, 65 Pa.C.S. § 1102), the individual becomes a “public employee” subject to the Ethics Act. See, Graves, Opinion 00-009, McGlathery, Opinion 00-004. Therefore, the answer to the question of whether the post-employment restrictions of Section 1103(g) of the Ethics Act would apply to you when you would cease providing your current services as an annuitant hinges upon whether you became a “public employee” when you began providing those services to the Commonwealth. 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; Scannella, 25-549 November 5, 2025 Page 5 (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 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. Scannella, 25-549 November 5, 2025 Page 6 (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 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. Scannella, 25-549 November 5, 2025 Page 7 The following terms are relevant to your inquiry and are defined in the Ethics Act as follows: § 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 04-002; Shienvold, Opinion 04-001; Shearer, Opinion 03-011. The Commonwealth Court of Pennsylvania has specifically considered and approved this Commission’s objective test and has directed that coverage under the Ethics Act be construed broadly and that exclusions under the Ethics Act be construed narrowly. See, Quaglia v. State Ethics Commission, 986 A.2d 974 (Pa. Cmwlth. 2010), amended by, 2010 Pa. Commw. LEXIS 8 (Pa. Cmwlth. January 5, 2010), allocatur denied, 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 employee”)(ii), include not only individuals with authority to make final decisions but also individuals 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, e.g.,Reese/Gilliland, Opinion 05-005. Conclusion: In applying the definition of "public employee" and the related regulatory criteria to the duties of your current position, the necessary conclusion is that in your capacity as an annuitant providing services to the Commonwealth as a Database Administrator 2 under job code 01533, you are not a "public employee" as that term is defined in the Ethics Act. Based upon an objective Scannella, 25-549 November 5, 2025 Page 8 review of theduties set forth in the Justification and the job classification specifications for the position of Database Administrator 2, you are not responsible for taking or recommending official action of a non-ministerial nature with regard to any of the five categories set forth in the Ethics Act’s definition of the term “public employee.” The post-employment restrictions of Section 1103(g) of the Ethics Act apply only to former public officials/public employees: § 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). Because the duties and responsibilities of your current position do not bring you within the definition of “public employee” as set forth in the Ethics Act, Section 1103(g) of the Ethics Act would not become applicable to you upon termination of your current service as an annuitant with the Commonwealth. Accordingly, Section 1103(g) of the Ethics Act would not restrict you with regard to contracting to provide services in support of the Infrastructure and Economic Development Delivery Center and PennDOT during the first year following termination of your current service as an annuitant. The only provision of the Ethics Act that applies to you is Section 1103(b), which applies to everyone. For your information, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer or give to a public official/public employee anything of monetary value and no public official/public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official/public 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. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve aninterpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Governor’s Code of Conduct. 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. Scannella,25-549 November 5, 2025 Page 9 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 writing and must be actually receivedat the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(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. Respectfully, Bridget K. Guilfoyle, Chief Counsel