Loading...
HomeMy WebLinkAbout26-554 Aiello 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 August 18, 2026 To the Requester: George Robert Aiello 26-554 Dear Mr. Aiello: This responds to your letter dated August 6, 2026, by which you requestedan advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: Whetherthe Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an individual employed as a Driver License Examiner Assistant with the Pennsylvania Department of Transportation (“PennDOT”), who is the owner of a limited liability company that is developing portable software and related tools for possible future commercial use by driver licensing agencies, with respect to either performing the duties of his position with PennDOT or engaging in business activities involving his limited liability company. Brief Answer: NO. Upon review of the individual’s official Commonwealth position description and the job classification specifications for the individual’s Commonwealth position, as a Driver License Examiner Assistant with PennDOT, the individual is not a “public employee” subject to the provisions of the Ethics Act. Consequently, the Ethics Act would not impose prohibitions or restrictions upon the individual with regard to either performing the duties of his position with PennDOT or engaging in business activities involving his limited liability company. Facts: You request an advisory from the Commission based upon the following submitted facts. You are currently employed as a Driver License Examiner Assistant with PennDOT. You have submitted a copy of your official Commonwealth position description (the “Position Aiello, 26-554 August 18, 2026 Page 2 Description”), which document is incorporated herein by reference. Per the Position Description, a Driver License Examiner Assistant is assigned to a Driver License Center to assist with the processing of counter customers. The duties of a Driver License Examiner Assistant include the following: Verifying applicant identification through direct contact with customersand the examination of identity documents; Completing application forms; Disseminating applicable forms and informational brochures based on customer need; Administering standardized knowledge tests to evaluate the applicant’s understanding of the motor vehicle code, driving laws, and associated traffic control devices; Screening an applicant’s vision for visual acuity by using a tele-binocular instrument; Data entering applicants’ test results and customer applications for driver license services in on-line software systems by using a PC terminal; Independently responding to questions or concerns posed by the public, which requires being knowledgeable about the services provided and the requirements associated with each service, including but not limited to the minimum requirements to obtain REAL ID or non-REAL ID products; Providing customers with information or services relating to driver’s license or identification card renewals, duplicates, out-of-state transfers, obtaining a motorcycle license, and obtaining and maintaining a commercial driver’s license; Producing Restoration Requirements Letters upon request for customers appearing in person; Complying with all aspects of the Fee Waiver Guidelines and ensuring that the correct fee waiver code is used and properly documented whenever a fee waiver is necessary to process a customer transaction; Strictly adhering to all aspects of Driver and Vehicle Services Customer Service Policy; and Issuing and scanning Non-Native Born US Citizen/Non-US Citizen Courtesy Form – Additional Information Required to Process (DL-160) as required. Position Description, at 1-2. A copy of the job classification specifications for the position of Driver License Examiner Assistant (job code 71039) has been obtained and is incorporated herein by reference. Per the job classification specifications under job code 71039, a Driver License Examiner Assistant performs limited technical work administering the application and knowledge testing processes of Pennsylvania’s commercial or non-commercial driver licensing program. Examples of the work performed by a Driver License Examiner Assistant include: Reviews and processes documents, such as applications, birth certificates, Social Security cards, marriage certificates, court documents, proof of residency documents, or documents issued by federal agencies or foreign countries to Aiello, 26-554 August 18, 2026 Page 3 establish identity and eligibility for driver license/identification card products and to identify irregularities to mitigate, detect, and deter fraud; Accesses multiple systems and databases to authenticate various documents presented by customers; Produces driver license and identification card products by entering test results or data into a computer and operating equipment which generates the physical product; Conducts tele-binocular, color perception, and other vision tests; Conducts the commercial or non-commercial driver license knowledge examination both orally and by computer to individuals or groups; Orally communicates information related to the driver license application, testing, and complaint processes to customers; Calculates fees for driver license products; and Attends training related to driver license requirements, laws, and regulations as well as fraud identification. Job Classification Specifications, Job Code 71039, at 1. You are the owner and founder of a Pennsylvania limited liability company, Galpra LLC (the “Company”), which is developing portable software and related tools intended for possible future commercial use by driver licensing agencies. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to engaging in commercial activities related to the Company. In particular, you pose the following questions: (1) Whether, and under what conditions, would you be permitted to develop, own, and commercially market software and related products through the Company while you are employed with PennDOT; (2) Whether there would be any restrictions applicable to seeking private funding, pilot programs, or contracts for the software with governmental or non-governmental entities; (3) Whether, and under what conditions, would you be permitted to contact other PennDOT employees to discuss the potential use of the Company’s software; and (4) Whether there would be any required disclosures, recusals, or other steps that you must take to avoid prohibited conflicts of interest, use of public resources, or an appearance of impropriety with respect to the Company’s business activities. Discussion/Conclusion: 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 Aiello, 26-554 August 18, 2026 Page 4 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. In responding to your inquiry, the threshold issue to be addressed is whether you are a “public employee” subject to the provisions of the Ethics Act in your capacity as a Driver License Examiner Assistant with PennDOT. 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. Aiello, 26-554 August 18, 2026 Page 5 (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. (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. Aiello, 26-554 August 18, 2026 Page 6 (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. 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), allocator denied, 607 Pa. 708, 4 A.3d 1056 (2010); Phillips, supra. Aiello,26-554 August 18, 2026 Page 7 The first portion of the statutory definition of “public employee” includes individuals with authority to take orrecommend official action of a nonministerialnature. 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. In applying the definition of “public employee” and the related regulatory criteria to the duties of your current position as set forth in the Position Description and the job classification specifications under job code 71039, the necessary conclusion is that in your capacity as a Driver License Examiner Assistant with PennDOT, you are not a “public employee”as that term is defined in the Ethics Act. Based upon an objective review of the Position Description and the job classification specifications, 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.” Consequently, the Ethics Act would not impose prohibitions or restrictions upon you with regard to either performing the duties of your positionwith PennDOTor engaging in business activities involving theCompany. 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