HomeMy WebLinkAbout07-583 HARTMANNEd Hartmann
17 Scenic Drive
Myerstown, PA 17067
Dear Mr. Hartmann:
ADVICE OF COUNSEL
September 14, 2007
This responds to your letters dated August 1, 2007, and August 11, 2007, by
which you requested advice from the State Ethics Commission.
Issue: Whether, in your former capacity as a Corrections Water Treatment Plant
Foreman with the Commonwealth of Pennsylvania Department of Corrections ( "DOC "),
you would be considered a "public employee" subject to the Public Official and
Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., and the Regulations of
the State Ethics Commission, such that the restrictions of Section 1103(g) of the Ethics
Act pertaining to former public officials /public employees would now be applicable to
you.
Facts: You were formerly employed as a Corrections Water Treatment Plant
Foreman with DOC at SCI — Camp Hill. The submitted facts do not disclose the date
that your employment in your former position was terminated.
You have submitted a copy of your official DOC position description, which is
incorporated herein by reference. A copy of the job classification specifications for your
former position (job code 98570) has been obtained and is also incorporated herein by
reference.
Per your official DOC position description, your duties and responsibilities
included the following:
• Supervising and performing preventative and operational maintenance of all plant
equipment;
• Operating, maintaining, and repairing water treatment equipment;
• Supervising inmates in mechanical repairs and grounds and building
maintenance, and maintaining all aspects of inmate discipline, assignments,
order, security, and supervision;
• Planning and organizing repairs and operational changes; and
• Receiving, issuing, and controlling inventory of tools and materials.
07 -583
Hartmann, 07 -583
September 14, 2007
Page 2
Per the job classification specifications under job code 98570, a Corrections
Water Treatment Plant Foreman:
• Supervises plant activities;
• Supervises inmates engaged in the operation, maintenance, and repair activities
of a water treatment plant or supervises an assigned shift in a multi -shift
operation;
• Schedules inmate work activities, assigns work, and reviews work performance
for adherence to established operational procedures and guidelines;
• Reads meters, records findings, and makes necessary adjustments for the
continuity of plant efficiency;
• Supervises and performs the sampling and testing of plant influent or effluent,
interprets results of chemical tests, and adds chemical as required;
• Supervises and performs preventative and operational maintenance of all plant
equipment; and
• Maintains adequate supply of treatment materials and requisitions supplies as
stocks are depleted.
To further clarify the job duties of your former position, you have submitted the
following additional facts. You state that with regard to maintaining and repairing
equipment, you were required to grease, clean, and /or fix the equipment within the
water treatment facility at SCI — Camp Hill. The operational changes that you
performed could involve chemical feed rate changes, flow control, and /or plant
shutdown. You state that with regard to requisitioning supplies, you made written
requests for items such as towels and trash bags. You state that requests for chemicals
and equipment parts were submitted to the Maintenance Department Management staff
for review and approval and ordering. You state that you would simply be told what was
needed and would submit requests through channels to the Maintenance Department
Management staff, who approved and forwarded such requests to the Purchasing
Department, which then made contact with vendors /contractors. You further state that
most chemicals and equipment were provided pursuant to state contract(s).
You seek guidance as to whether the Ethics Act would impose any prohibitions
or restrictions upon you following your termination of service with DOC. In particular,
you pose the following specific inquiries: (1) whether you could work as a water plant
operator for DOC at SCI - Camp Hill under a negotiated contract as a consultant; and
(2) whether you could work as a water plant operator for an individual or business that
has a contract with DOC to operate the water treatment facility at SCI - Camp Hill.
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.
In responding to your inquiries, the threshold question to be addressed is
whether, in your former capacity with DOC, you would be considered a public employee
subject to the Ethics Act.
Hartmann, 07 -583
September 14, 2007
Page 3
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.
(F) The individual prepares or supervises the
preparation of final recommendations.
(G) The individual makes final technical recommen-
dations.
Hartmann, 07 -583
September 14, 2007
Page 4
51 Pa. Code § 11.1.
(H) The individual's recommendations or actions are
an inherent and recurring part of his position.
(1) 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.
(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.
Hartmann, 07 -583
September 14, 2007
Page 5
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 persons 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.
It is also noted that pursuant to the Commission's Regulations, the term
"contracting or procurement" does not include contracting /purchasing through master
contracts or purchasing schedules already awarded. 51 Pa. Code § 11.1.
In applying the definition of "public employee" and the related regulatory criteria
to your former position, the necessary conclusion is that in your former capacity as a
Corrections Water Treatment Plant Forman, you would not be considered a 'public
employee" as that term is defined in the Ethics Act. Based upon an objective review of
the official position description and the job classification specifications, you were 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 only apply
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 former position would not bring
1 you within the definition of "public employee" as set forth in the Ethics Act, Section
103(g) of the Ethics Act would not apply to restrict you now.
Therefore, Section 1103(g) of the Ethics Act would not apply to prohibit you from
working as a water plant operator for DOC at SCI -Camp Hill under a negotiated contract
as a consultant. Likewise, Section 1103(g) of the Ethics Act would not apply to prohibit
you from working as a water plant operator for an individual or business that has a
contract with DOC to operate the water treatment facility at SCI - Camp Hill.
The only provisions of the Ethics Act that apply to you are Sections 1103(b) and
1103(c), which apply to everyone. For your information, Sections 1103(b) and 1103(c)
of the Ethics Act provide in part that no person shall offer 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,
Hartmann, 07 -583
September 14, 2007
Page 6
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.
Lastly, 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 an interpretation of the Ethics Act. Specifically not addressed herein is the
applicability of the Governor's Code of Conduct.
Conclusion: Based upon the submitted facts, in your former capacity as a
Corrections Water Treatment Plant Foreman with the Commonwealth of Pennsylvania
Department of Corrections ( "DOC "), you would not be considered a "public employee"
as that term is defined by the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1102. Consequently, upon termination of your Commonwealth employment,
Section 1103(g) of the Ethics Act, which imposes post - employment restrictions upon
former public officials /public employees, did not become applicable to you. Sections
1103(b) and 1103(c) of the Ethics Act apply to everyone. Lastly, the propriety of the
proposed conduct has only been addressed under the Ethics Act.
Pursuant to Section 1107(11), 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
received at 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.
Sincerely,
Robin M. Hittie
Chief Counsel