Loading...
HomeMy WebLinkAbout07-019 GODDARDKeith Goddard 214 S. 29 Street Harrisburg, PA 17103 Dear Mr. Goddard: I. ISSUE: OPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella Reverend Scott Pilarz DATE DECIDED: 10/24/07 DATE MAILED: 11/7/07 07 -019 This Opinion is issued in response to the appeal of Advice of Counsel, 07 -554, which was issued on July 6, 2007. Whether an individual employed as a Clerk Typist 2 with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), would upon termination of Commonwealth service be subject to the restrictions of Section 1103(g) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(g), pertaining to former public officials /public employees, where within the one -year period prior to terminating Commonwealth service, the individual was employed with PennDOT as a Clerical Supervisor I but did not supervise any PennDOT employees. II. FACTUAL BASIS FOR DETERMINATION: By letter dated July 30, 2007, you appealed Advice of Counsel 07 -554. At the time of your initial inquiry, you were employed as a Clerical Supervisor I (Secretary to the Section Chief) in the Consultant Agreement Section of PennDOT. Your Goddard, 07 -019 November 7, 2007 Page 2 initial advisory request presented facts and arguments that were summarized in the Advice of Counsel as follows: You are currently employed as a Clerical Supervisor 1 (Secretary to the Section Chief) in the Consultant Agreement Section of PennDOT. You have submitted a copy of your position description, which is incorporated herein by reference. A copy of the job classification specifications for your position (job code 00190) has also been obtained and is incorporated herein by reference. Per your official PennDOT position description, your duties and responsibilities include the following: • Serving as secretary to the Section Chief, professional engineers, and all other employees in the Consultant Agreement section; • Directly supervising clerical staff by planning and organizing work assignments; • Reviewing legal documents developed in the Consultant Agreement Section and extracting appropriate language and information to develop and type correspondence to the Districts, Central Office, Consultants, Office of Chief Counsel, and Comptroller's Office for review and signature by the Section Chief; • Managing the Section's Quality Assurance Program for processing and paying consultant invoices, which includes reviewing invoices to ensure that the invoice amount is justifiable, in the proper format and allowable under the terms and conditions set forth in the Engineering Agreement, and determining invoice document conformity based on established guidelines; • Performing a variety of fiscal duties including: independently checking fiscal forms for correct coding and amount; independently reviewing current and previous invoices, checking for fiscal accuracy; verifying fiscal information with engineers; verifying wage /overhead rates; and verifying contract amounts to preclude overpayment for unauthorized items; • Generating quarterly reports, agreement backlogs, Disadvantaged Business Enterprise reports, and Agreement /Supplement execution tracking using appropriate systems and databases; • Preparing Employee Progress Review reports, approving employee leave, and taking appropriate disciplinary action, if necessary; and • Finding appropriate solutions to resolve problems with Goddard, 07 -019 November 7, 2007 Page 3 projects according to PennDOT policies and related material. Per the job classification specifications under job code 00190, a Clerical Supervisor 1: • Interviews and recommends the selection of applicants for clerical positions within the section; • Adjusts employee complaints and recommends decisions on formal grievances; • Evaluates the performance of employees in the clerical unit supervised; • Supervises and assigns work to the subordinate clerical staff; • Supervises the typing of documents and maintenance of files, and plans and provides guidance in the establishment and reorganization of filing systems as needed; • Registers, certifies, and insures outgoing mail and demonstrates the operation of office and mail processing machines to clerical staff; • Determines supply needs for the work unit and requisitions office supplies from a central stores unit; and • Reviews the assigning of code numbers to financial and budgetary disbursement of funds and grants. You state that in your position as a Clerical Supervisor 1, your core function is to develop letters and memos and answer office telephones, while serving as secretary to the Section Chief. You further state that during your Commonwealth employment, you have had no involvement with the managing and /or procuring of engineering contracts; administering or monitoring grants or subsidies; planning or zoning; or inspecting, licensing, regulating or auditing any person. Since October 2006, you have been supervising a temporary clerical pool employee, which you assert does not give you the authority to have an economic impact on any person. You state that you have been pursuing an Associates degree in Civil Engineering. You plan to resign from Commonwealth employment effective July 13, 2007, and pursue a career in the private sector. You state that your future employment will consist of performing design tasks which could include horizontal /vertical geometry, drainage design, guide rail design, erosion control, traffic control plans, signing Goddard, 07 -019 November 7, 2007 Page 4 stated: and pavement marking plans, cross sections, quantity takeoffs and cost estimating, and plan preparation. Based upon the submitted facts, you request guidance as to whether you would be subject to the restrictions of Section 1103(g) of the Ethics Act upon termination of employment with PennDOT. Goddard, Advice of Counsel 07 -554 at 1 -3. Advice of Counsel 07 -554 determined that in your capacity as a Clerical Supervisor I with PennDOT, you would be considered a "public employee" subject to the Ethics Act. The Advice of Counsel determined that you had the ability to take or recommend official action of a non - ministerial nature that would satisfy subparagraph (5) of the statutory definition of "public employee" (pertaining to any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person" (65 Pa.C.S. § 1102)), as well as the criteria set forth in this Commission's Regulations for determining status as a public employee, specifically at 51 Pa. Code § 11.1, subparagraphs (i) and (ii). The Advice of Counsel specifically noted your authority to conduct interviews and make recommendations as to the selection of applicants for clerical positions within the Consultant Agreement Section. The Advice of Counsel concluded that in making recommendations with regard to the hiring of clerical staff in the Consultant Agreement Section of PennDOT, your official job duties and responsibilities would have a significant economic impact upon the interests of affected applicants as well as the interests of taxpayers with regard to the expenditure of public funds. The Advice of Counsel noted that your authority to prepare employee progress review reports, take appropriate disciplinary action, recommend decisions on formal grievances, manage the Section's Quality Assurance Program for processing and paying invoices, and perform fiscal duties as detailed in your position description and job classification specifications, would provide additional support for the conclusion that in your capacity as a Clerical Supervisor I with PennDOT, you would be considered a "public employee" subject to the provisions of the Ethics Act. The Advice of Counsel determined that upon termination of public service with PennDOT, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act, 65 Pa.C.S. § 1103(g). The Advice further determined that your former governmental body would be PennDOT in its entirety, including but not limited to the Consultant Agreement Section. The Advice set forth the restrictions of Section 1103(g) of the Ethics Act as applicable to you. The Advice concluded that Section 1103(g) of the Ethics Act would not prohibit you from accepting employment in the private sector. The Advice further concluded, however, that to the extent your job duties would require interaction with PennDOT in a manner that would constitute prohibited "representation," your performance of such activities would be prohibited by Section 1103(g) of the Ethics Act during the first year following termination of your employment with PennDOT. By letter dated July 30, 2007, you appealed Advice of Counsel 07 -554. Your letter . I am not appealing the facts that were provided, because they are herein true as it pertains to a Clerical Supervisor 1, Commonwealth wide. However, I am appealing the facts that I have not actively been supervising any one employee since October 12, 2006, which therefore changes my entire position. (July 30, 2007 appeal letter, at 1). You expressed your view that as of October 12, 2006, Goddard, 07 -019 November 7, 2007 Page 5 you had absolutely no financial impact on an individual. By way of your appeal letter and a faxed transmission received by this Commission on October 5, 2007, you submitted the following additional facts. Immediately following the retirement of the employee whom you had been supervising, you submitted your resignation from Commonwealth employment, to be effective July 13, 2007. You state that your position should have been reclassified by PennDOT months before your departure, but because of your impending departure, a hold was placed on reclassifying your position. At the time you submitted your request for an Advice, the only active and /or legal position description available to you was the one that you submitted with your initial advisory request, specifically, as a Clerical Supervisor 1. You state that you had originally planned to begin working with an engineering firm, Orth- Rogers & Associates ("OR &A "), in the third week of July 2007. However, you state that after you received Advice of Counsel 07 -554, OR &A rescinded its job offer because OR &A had planned for you to work on PennDOT projects. (You note difficulties as to the inability of the prospective employer to submit your "billable hours" to PennDOT.) You then rescinded your resignation, and effective July 16, 2007, you were moved to a different position as a Clerk Typist 11 with PennDOT's Environmental Quality Assurance Division. You state that after you left your position as a Clerical Supervisor 1, said position was reclassified to a Clerk Typist 11 position. You then contacted other engineering firms in an attempt to find ajob that you could do that would not be associated with PennDOT. You state that Greenhorne & O'Mara, Inc. ( "the Firm ") offered you a position working on Pennsylvania Turnpike projects, with the understanding that you would be unable to perform work on PennDOT projects. Since you began employment with the Firm on August 13, 2007, you have been providing Computer Aided Drafting (CADD) support to the engineering staff along with storm water management calculations for the Pennsylvania Turnpike. On October 5, 2007, you submitted a letter dated October 4, 2007, addressed to Chief Counsel, from Michael P. Bougher, P.E., Branch Manager for the Firm's Pennsylvania operations. Mr. Bougher stated that you are currently employed with the Firm as an Engineering Technician 1. Your job responsibilities include providing general engineering /CADD design support to the Firm's highway engineering group, and you have been working internally to provide plan preparation support and general drainage computations for the Firm's existing Pennsylvania Turnpike contracts. Mr. Bougher stated that in your current position with the Firm, you have no involvement with the marketing /client relations aspect of the Firm's operation. Mr. Bougher further stated that the Firm never worked directly with you or marketed you in your previous employment with PennDOT. You have submitted copies of your PennDOT position descriptions for your former positions as a Clerical Supervisor 1 (job code 00190) and a Clerk Typist 11 (job code 00220), which documents are incorporated herein by reference. Copies of the job classification specifications for both of the aforesaid PennDOT positions have been obtained and are also incorporated herein by reference. The Advice of Counsel accurately summarized the material portions of your position description and job classification specifications for your former position as a Clerical Supervisor!, which summarization we incorporate herein by reference. Per your PennDOT Clerk Typist 11 position description and job classification specifications under job code 00220, your duties and responsibilities as a Clerk Typist 11 included the following: Goddard, 07 -019 November 7, 2007 Page 6 • Performing clerical work of moderate complexity. • Utilizing specialized clerical equipment. • Performing skilled typing and proofreading of various documents. • Providing secretarial services to one or more individuals. • Determining supply needs for the mailroom and preparing supply requisitions. • Entering bi- weekly timesheets, maintaining the Division's leave records, and coordinating and submitting expense statements for the Division. • Providing training and guidance to new employees. • Functioning as a lead worker by distributing and interpreting work assignments, providing assistance and on-the-job training, and reviewing the unit's work for adherence to processing standards. • Assisting the public in completing governmental forms. By letter dated August 9, 2007, you were notified of the date, time and location of the public meeting at which your request would be considered. 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 requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester 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 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. Our review of this matter is de novo (Clarke, Opinion 04 -012; Spear, Opinion 04- 011): "De novo review entails, as the term suggests, full consideration of the case anew. The reviewing body is in effect substituted for the prior decision maker and redecides the case." D'Arciprete v. D'Arciprete, 323 Pa. Super. 430, 470 A.2d 995 (1984) (citations omitted). See also, Hayes v. Donohue Designer Kitchen, Inc., 2003 Pa. Super. 84, 818 A.2d 1287 (2003); Commonwealth v. Krut, 311 Pa. Super. 64, 457 A.2d 114 (1983); In re Audit of School District, 354 Pa. 232, 47 A.2d 292 (1946). As an initial matter, we note that to determine whether the restrictions of Section 1103(g) of the Ethics Act became applicable to you upon termination of your Commonwealth service, we must determine whether in either of your former capacities with PennDOT, you would be considered a public employee subject to the Ethics Act. We shall begin our analysis by reviewing the relevant provisions of the Ethics Act and the Regulations of this Commission. 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: Goddard, 07 -019 November 7, 2007 Page 7 (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 this 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. (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. Goddard, 07 -019 November 7, 2007 Page 8 (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. 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. Goddard, 07 -019 November 7, 2007 Page 9 65 Pa.C.S. § 1102. As noted in the Advice of Counsel, 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, Phillips, supra. In applying the objective test in the instant matter, we first conclude that in the former capacity as a Clerical Supervisor I with PennDOT, you would be considered a "public employee" subject to the Ethics Act and the Regulations of this Commission. 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; 51 Pa. Code § 11.1( "public employee ")(ii); see also, Reese /Gilliland, Opinion 05- 005. The objective sources defining your position - -the official position description and job classification specifications -- establish that as a Clerical Supervisor I with PennDOT, you had the authority, inter alia, to do the following: (Per Position Description) • Prepare Employee Progress Review reports, approve employee leave, and take appropriate disciplinary action, if necessary. • Manage the Consultant Agreement Section's Quality Assurance Program for processing and paying consultant invoices, which included reviewing consultant invoices to ensure that invoice amounts were justifiable and contractually allowable. • Perform a variety of fiscal duties including: independently checking fiscal forms for correct coding and amount; independently reviewing current and previous invoices, checking for fiscal accuracy; verifying fiscal information with engineers; verifying wage /overhead rates; and verifying contract amounts to preclude overpayment for unauthorized items. (Per Job Classification Specifications) • Interview and recommend the selection of applicants for clerical positions within the section. • Adjust employee complaints and recommend decisions on formal grievances. • Evaluate the performance of employees in the clerical unit supervised. • Supervise and assign work to the subordinate clerical staff. Based upon the above, we find that your authority included responsibility for taking or recommending official action of a nonministerial nature with regard to category (5) of the Goddard, 07 -019 November 7, 2007 Page 10 Ethics Act's definition of "public employee," specifically, any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person." 65 Pa.C.S. § 1102. While we agree with the Advice of Counsel that your authority to recommend the hiring of individuals would have a significant economic impact upon the interests of affected applicants and taxpayers, more importantly, your fiscal duties and responsibilities as to the review of contractor invoices would bring you squarely within the Ethics Act's definition of "public employee." Your assertions that: (1) as of October 12, 2006, you no longer actively supervised any one employee; and (2) PennDOT would have reclassified your position but for your impending resignation from employment, are not controlling with regard to the determination of your status under the Ethics Act. Rather, as noted above, status as a "public employee" is determined based upon objective sources establishing what an individual has the authority to do in a given position rather than on actual claimed job performance. Given that PennDOT did not reclassify your position as a Clerical Supervisor I while you remained employed in said position, the necessary conclusion is that you possessed the authority provided by the official position description and job classification specifications. In applying the objective test to the functions of your former position as a Clerk Typist II with PennDOT, the necessary conclusion is that in said position, 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, as a Clerk Typist II, 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." Having established that you would be considered a public employee subject to the Ethics Act in the capacity as a Clerical Supervisor I with PennDOT but not in the capacity as a Clerk Typist I I with PennDOT, we shall now apply Section 1103(g) of the Ethics Act to the instant matter. We note that it appears to be a matter of first impression for this Commission to address the applicability of Section 1103(g) of the Ethics Act in circumstances where a public official /public employee shifts to a non - covered position within the governmental body with which he is associated during the one -year period prior to terminating public service. Section 1103(g) of the Ethics Act applies 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). Essentially, the intendment of Section 1103(g) of the Ethics Act is to preclude for the first year following termination of public service the obtainment of financial gain based upon prior associations and connections with the former governmental body, by restricting representation before the former governmental body. Confidential Opinion, 07 -001. Goddard, 07 -019 November 7, 2007 Page 11 Based upon the submitted fact that you served in the capacity as a Clerical Supervisor I within the one -year period prior to terminating your Commonwealth employment as a Clerk Typist 11, it is our conclusion that upon termination of Commonwealth employment, you became a former public employee subject to Section 1103(g) of the Ethics Act with respect to your former position as a Clerical Supervisor 1 with PennDOT. Your shift to a Clerk Typist 11 position approximately three weeks before leaving Commonwealth service would not alter our conclusion. To hold otherwise would undermine the legislative intent by enabling a public official /public employee to circumvent Section 1103(g) of the Ethics Act by simply moving to a non - covered position immediately before leaving public office /public employment. Based upon our analysis above, you are advised that the restrictions of Section 1103(g) of the Ethics Act would apply to you for one year following the date that you terminated service in your former capacity as a Clerical Supervisor 1 with PennDOT. We agree with Advice of Counsel 07-554 that your former governmental body would be PennDOT in its entirety. See, Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion 90 -006; Sharp, Opinion 90- 009 -R. We further determine that Advice of Counsel, 07 -554 accurately apprised you of the nature of the Section 1103(g) restrictions and of certain important Commission precedents pertaining to that Section. Accordingly, we adopt and incorporate herein by reference the Advice's recitation of the Section 1103(g) restrictions. Based upon the above analysis, we deny the appeal and affirm Goddard, Advice of Counsel 07 -554. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. IV. CONCLUSION: As a Clerical Supervisor I employed with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), you 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., even if you did not actually supervise any PennDOT employees. Based upon your position description and job classification specifications for your subsequent position as a Clerk Typist II employed with PennDOT, you would not in that position be considered a "public employee" subject to the provisions of the Ethics Act. Based upon the submitted facts that within the one -year period prior to termination of Commonwealth employment with PennDOT, you held both of the aforesaid positions, you would, upon termination of Commonwealth employment, be considered a former public employee subject to Section 1103(g) of the Ethics Act as to your former position as a Clerical Supervisor I with PennDOT. The restrictions of Section 1103(g) of the Ethics Act would be applicable for one year following the date that you terminated service in your former capacity as a Clerical Supervisor I. The former governmental body would be PennDOT in its entirety. Advice of Counsel 07 -554 is affirmed. Act. The propriety of the proposed conduct has only been addressed under the Ethics 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. Goddard, 07 -019 November 7, 2007 Page 12 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