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Home My WebLink About26-517 Davis - Schmidt 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 304 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL March 31, 2026 To the Requester: Leanne Davis, Esquire 26-517 Dear Ms. Davis: This responds to your submissions received between June 16, 2025, and March 3, 2026, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issues presented below: Issues: (1) Whethera Police Lieutenant with the Pittsburgh Bureau of Police (“Bureau of Police”) would be considered a “public employee” subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., and particularly, the requirements for filing Statements of Financial Interests. Brief Answer: YES.Upon review of the applicable City of Pittsburgh (“City”) position description, a Police Lieutenant with the Bureau of Police is a“public employee”subject to the provisions of the Ethics Act and is therefore required to file Statements of Financial Interests pursuant to the Ethics Act. (2) Whether a Police Officer with the Bureau of Police — a position that is not considered a “public employee” position under the Ethics Act — would become subject to the provisions of the Ethics Act, including the requirements for filing Statements of Financial Interests, if the Police Officerwould be designated as a scheduler of secondary employment jobsfor members of the Bureau of Police pursuant to the City’s secondary employment system. Brief Answer: NO. Upon review of the submitted facts, a scheduler of secondary employment jobs under the City’s secondary employment system does not perform duties that would fall within any of the five categories of official actions that would bring an Davis, 26-517 March 31, 2026 Page 2 individual within the Ethics Act’s definition of the term “public employee.” Therefore, a Police Officer with the Bureau of Police would not become subject to the provisions of the Ethics Actand would not be required to file Statements of Financial Interestsas a result of being designated as a scheduler of secondary employment jobs for members of the Bureau of Police pursuant to the City’s secondary employment system. Facts: As Executive Director and Ethics Officer of the City Ethics Hearing Board, you have been authorized by Lee C. Schmidt, Director of the City Department of Public Safety, to request an advisory from the Commission on his behalf with respect to two issues. The first question posed by your advisory request is whether a Police Lieutenant with the Bureau of Police is a “public employee” subject to the Ethics Act and in particular, the requirements for filing Statements of Financial Interests. You have submitted a copy of a City position description (“the Position Description”) for the position of Police Lieutenant with the Bureau of Police, which document is incorporated herein by reference. The Position Description notes that a Police Lieutenant supervises, directs, plans, and monitors the work of Police Sergeants and Police Officers assigned to a shift of duty within a zone or unit of the Bureau of Police to preserve life and property, reduce/deter criminal activities, and enforce City, state, and federal laws. Per the Position Description, the duties of a Police Lieutenant include: Supervising, directing, planning and monitoring the work of assigned Police Sergeants, Police Officers, and civilian personnel and assigning duties to Police Sergeants and Police Officers; Preparing subordinate officers for tour of duty by relaying relevant information, inspecting officers’ appearance and equipment, and providing training on new or updated procedures, policies and operations; conducting roll calls or observing roll calls conducted by subordinate supervisory personnel; Supervising subordinates’ activities to ensure safety, legality of actions, and compliance with Bureau of Police/Departmental policies/procedures; Observing subordinate performance to identify strengths and weaknesses and assess training needs; conducting informal or formal counseling sessions and informal and formal performance evaluation sessions; Planning, developing, scheduling, conducting and evaluating formal and informal training sessions as required; Initiating, coordinating, conducting and supervising investigations of subordinates involving observed infractions/violations or civilian complaints and recommending and implementing disciplinary or corrective action; Assigning or allocating personnel, planning and adjusting schedules, and reviewing plans developed by subordinates to ensure sufficient resources are available to handle workload (e.g., calls for service, cases, projects, etc.), including planning and preparing for holidays, major events and emergencies; Davis, 26-517 March 31, 2026 Page 3 Inspecting or observing the inspection of assigned vehicles and equipment to ensure proper and safe operations and expected longevity and taking action to ensure observed deficiencies are corrected and necessary maintenance is performed; Responding immediately to calls of a nature which may require supervisory attention and assuming responsibility at the scene of serious incidents or special operations to ensure the efficient and appropriate handling of the situation/operation and the safety of all concerned; Supervising or conducting investigations across a variety of situations and settings to obtain and analyze information, which may involve coordinating investigations or conducting hands-on investigatory activities such as examining the incident scene, interviewing relevant parties, collecting and preserving physical evidence, analyzing information, and assuming an undercover role or communicating with a confidential source; Completing, reviewing, filing, and forwarding required forms and reports and ensuring completeness, accuracy and compliance with policies and procedures; Writing letters, memos, and reports involving a significant degree of narrative information, maintaining records, and preparing all relevant contract and fiscal correspondence; Communicating or coordinating activities with other Bureau of Police personnel, City officials, other governmental officials, individuals in other agencies, and members of the community to accomplish work objectives and discuss issues of mutual concern; Performing activities required to secure warrants and to prepare for or give testimony; Patrolling assigned district to monitor subordinates’ performance; Performing activities which have an impact on the Bureau of Police’s image in the community, such as providing information to the media, participating in official functions to represent the Bureau of Police, and providing crime prevention information; and Serving in the capacity of Acting Police Commander as needed, which may include being called upon to serve on review panels. Position Description, at 3-4. The second question posed by your advisory request is whether a Police Officer with the Bureau of Police —a position that is not considered a “public employee” position under the Ethics Act — would become subject to the provisions of the Ethics Act, including the requirements for filing Statements of Financial Interests, if the Police Officer would be designated as a scheduler of secondary employment jobs for members of the Bureau of Police pursuant to the City’s secondary employment system. The facts pertaining to this question are gleaned from the following sources: (1) Pittsburgh Bureau of Police Manual of Procedural Orders, Order No. 29-01, “Secondary Employment”; (2) Secondary Employer Rules and Regulations (2026), issued by the Bureau of Police, Special Events Planning Office; (3) Secondary EmployerApplication Agreement, Bureau of Police Form #219.1; (4) Working Agreement Between the City of Pittsburgh and the Fraternal Order of Police Fort Pitt Lodge No. 1, January 1, 2019 –December 31, 2022;(5) email to you dated February 20, 2026, from Eric A. Baker, Commander, Bureau of Police Special Employment Davis, 26-517 March 31, 2026 Page 4 Division; and (6) Professional Services Agreement dated 11/30/2025, between the City and RollKall Technologies, LLC, for the administration and management of secondary employment scheduling for the City’s Department of Public Safety personnel. The City maintains a policy that governs the employment of a Police Officer, Police Sergeant, or Police Lieutenant with the Bureau of Police (“a Member”) by a private entity outside of the Member’s assigned hours of duty. Where a Member’s employment by a private entity will not require the use or potential use of the Member’s law enforcement powers, the employment is considered “Outside Employment.” Where a Member’s employment by a private entity is conditioned on the actual or potential use of the Member’s law enforcement powers, the employment is considered “Secondary Employment,” and the private entity is a “Secondary Employer.” Secondary Employers may use Members to provide security, traffic control, or other services for businesses, construction sites, and special events. A private entity that seeks to employ Members for Secondary Employment is required to complete and submit a Secondary Employment Application Agreement to the City. Once the Secondary Employment Application Agreement is approved by the City Chief of Police or his/her designee, the private entity becomes a Secondary Employer. A Secondary Employer has two options when scheduling Members for assigned positions, or “Jobs,” through the secondary employment system. The first option is to utilize open bidding, where Jobs are posted on the City’s secondary employment scheduling system website and are open to all qualified Members. Under this option, Jobs are assigned based on seniority. The second option is to select a Member to coordinate and assist with the scheduling of Jobs. The Secondary Employer selects a Member by completing a form, “Designation of a Pittsburgh Police Officer to Coordinate and Assist in Scheduling.” A Member selected by a Secondary Employer to assist with the scheduling of Jobs is a “Scheduler” and, once approved, the Scheduler fills the Jobs. The Bureau of Police Manual of Procedural Orders does not specify a method that the Scheduler must use to fill openings, such as, for example, seniority rotation, first-come first-served, or a points system. The Bureau of Police Manual of Procedural Orders also does not specify what systems may control or audit to prevent favoritism in Scheduler-filled Jobs. A Scheduler may not be employed by, own, or have a pecuniary interest in the Secondary Employer and may not be compensated for coordinating the scheduling of Jobs. 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 material facts 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. Davis, 26-517 March 31, 2026 Page 5 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. 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. Davis, 26-517 March 31, 2026 Page 6 (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. (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. Davis, 26-517 March 31, 2026 Page 7 (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. 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. Davis, 26-517 March 31, 2026 Page 8 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: With respect to your first question, you are advised as follows. In applying the objective test in the instant matter, the necessary conclusion is that an individual serving as a Police Lieutenant with the Bureau of Police is a “public employee”subject to the Ethics Act and in particular, the requirements for filing Statements of Financial Interests. It is clear that a Police Lieutenant has the ability to take or recommend official action of a nonministerial nature with respect to subparagraph (5) within the Ethics Act’s definition of the term “public employee” as set forth above. Specifically, the authority of a Police Lieutenant to: Conduct informal and formal performance evaluation sessions of subordinates; Initiate, coordinate, conduct, and supervise investigations of subordinates involving observed infractions/violations or civilian complaints and implement disciplinary or corrective action; Assign or allocate personnel, plan and adjust schedules, and review plans developed by subordinates to ensure sufficient resources are available to handle workload; Supervise or conduct investigations across a variety of situations and settings to obtain and analyze information, including conducting hands-on investigatory activities or assuming an undercover role or communicating with a confidential source; and Serve in the capacity of Acting Police Commander and serve on review panels, would be sufficient to establish a Police Lieutenant’s status as a “public employee” subject to the Ethics Act. The foregoing authority would also meet the criteria for determining a Police Lieutenant’s status as a “public employee” under the Regulations of the Ethics Commission at 51 Pa. Code § 11.1, “public employee,” subparagraphs (i) and (ii). In response to your second question, you are advised as follows. The answer to the question of whether a Police Officer with the Bureau of Police —who is not considered a “public employee” under the Ethics Act — would become subject to the provisions of the Ethics Act if the Police Officer would be designated as a Scheduler hinges upon whether the duties of a Scheduler, considered alone, would establish status as a “public employee.” Based upon the submitted facts, the duties of a Scheduler clearly do not fall within subparagraphs (1), (2), (3), or (4) of the Ethics Act’s definition of the term “public employee.” With respect to subparagraph (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 submitted objective sources pertaining to the duties of a Davis,26-517 March 31, 2026 Page 9 Scheduler do not definitively establish thatin assisting a Secondary Employer with the scheduling of Jobs, a Scheduler is required to takeor recommendofficial action of a nonministerial nature, or exercisethe Scheduler’s own discretion or judgment, as to the assignment of Jobsto Membersas opposed to making assignments based upon a system thatleaves no room for the exercise of the Scheduler’s discretion or judgment, such as a seniority rotation, first-come first served, or a points system. In the absence of a definitive establishment as to an ability to take or recommend official action of a nonministerial nature, the necessary conclusion is that a Police Officer with the Bureau of Police would not become subject to the provisions of the Ethics Act and the requirements for filing Statements of Financial Interests as a result of serving as a Scheduler under the City’s secondary employment system. 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. 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. 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