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HomeMy WebLinkAbout09-003 StaffordDear Mr. Stafford: Roland Dale Stafford 1 Shoemaker Lane Mechanicsburg, PA 17050 I. ISSUE: OPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Nicholas A. Colafella Mark Volk DATE DECIDED: 7/22/09 DATE MAILED: 8/4/09 This Opinion is issued in response to the appeal of Advice of Counsel, 09 -535, which was issued on April 3, 2009. Whether an individual employed by the Pennsylvania Department of Transportation ( "PennDOT ") as a probationary Transportation Construction Inspector under job code 10620 would, upon termination of service with PennDOT, 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. II. FACTUAL BASIS FOR DETERMINATION: By faxed letter dated April 30, 2009, you appealed Advice of Counsel, 09 -535, which was issued on April 3, 2009. Your initial advisory request presented facts that were summarized in the Advice of Counsel as follows: On March 26, 2008, you began employment as a probationary Transportation Construction Inspector with PennDOT in Engineering District 8 -0 ( "District 8 -0 "). You state that on January 21, 2009, you were notified by management that you would not obtain permanent employment status. 09 -003 Stafford, 09 -003 August 4, 2009 Page 2 You have submitted a copy of your official PennDOT position description, which document is incorporated herein by reference. A copy of the job classification specifications for the position of Transportation Construction Inspector (job code 10620) has been obtained and is also incorporated herein by reference. You state that as a probationary employee, you were responsible for visual observation and documentation of construction IAW plans, specifications, contracts, and directions of supervisors and managers. You express your view that such work involved ministerial actions with direct supervision and no independent judgment. You state that you received a job offer as a consultant but this offer was rescinded February 8, 2009, due to concerns pertaining to the post - employment restrictions of the Ethics Act. You seek guidance as to whether the Ethics Act would impose any restrictions upon you following termination of your employment with PennDOT. Stafford, Advice of Counsel 09 -535, at 1 -2. Advice of Counsel 09 -535 determined that in your capacity as a probationary Transportation Construction Inspector for PennDOT, you would be considered a "public employee" subject to the Ethics Act and the Regulations of this Commission, 51 Pa. Code § 11.1 et seq. The Advice of Counsel determined that upon termination of service with PennDOT, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. The Advice of Counsel further determined that your former governmental body is PennDOT in its entirety, including but not limited to Engineering District 8 -0. The Advice of Counsel set forth the restrictions of Section 1103(g) of the Ethics Act as applicable to you. By faxed letter dated April 30, 2009, you appealed Advice of Counsel 09 -535. Your appeal letter stated: ... My appeal is based on the Advisory discounting PennDot Publication 408 Section 104 Scope of Work and Section 105 Authority of the Representative. The Advisory relied on the Position Description and the Job Classification. Authority for Inspection is based on Publication 408 section 105. The Inspector In Charge has immediate responsibility for administering the performance of work on the project. Authorized inspectors working under the direction of the Inspector In Charge perform ministerial work of observing and examining materials and workmanship for conformance to plans, drawings, and contract requirements [and] are not authorized to revoke, alter, enlarge, relax, or release any requirements of the specifications[,] approve or accept any portion of the work, or issue instructions contrary to the plans and specifications. (April 30, 2009 appeal letter, at 1). Stafford, 09 -003 August 4, 2009 Page 3 You have submitted a copy of Section 105 of PennDOT Publication 408. It is administratively noted that Section 105 of PennDOT Publication 408 provides, in pertinent part, as follows: Position Description, at 1. 105.09 AUTHORITY AND DUTIES OF INSPECTOR -IN- CHARGE —The Inspector -in- Charge will have immediate responsibility for administering the performance of work on the project. In case a dispute arises concerning material to be furnished or the manner of performing the work, the Inspector - in- Charge will have authority to reject material or suspend the work until the question at issue can be referred to and be decided by the Representative.... 105.10 INSPECTION OF WORK —The work will be subject to the inspection of the Representative or authorized assistants.... 105.11 DUTIES OF THE INSPECTOR — Authorized inspectors, who perform their duties under the direction of the Representative, will be assigned to the project... The inspector is not authorized to do the following: revoke, alter, enlarge, relax, or release any requirements of the specifications; approve or accept any portion of the work; or issue instructions contrary to the plans and specifications.... PennDOT Publication 408, Section 105, at 105 -6. Section 101.03 of PennDOT Publication 408 defines the term "Inspector" as "[t]he person authorized and assigned by the Representative to make inspections of contract performance and of material furnished." PennDOT Publication 408, Section 101.03, at 101 -4. Your official PennDOT position description and the job classification specifications for the position of Transportation Construction Inspector (job code 10620) are incorporated herein by reference. Per your official PennDOT position description, your duties and responsibilities as a probationary Transportation Construction Inspector included the following: • Performing independent inspection of highway occupancy permit locations and work in progress and upon completion to ensure compliance with departmental requirements, approved plans, materials, and workmanship requirements. • Meeting with property owners, developers, contractors, local officials, and others to explain occupancy permit requirements and legal constraints and assist in resolving problems on proposed or existing projects. • Participating and supporting efforts to improve quality and recommending and implementing new initiatives; and • Helping to reorganize and redesign existing functions to eliminate unproductive, inefficient, and redundant operations,and fostering a sense of ownership and pride in both group and individual work results. Stafford, 09 -003 August 4, 2009 Page 4 Per the job classification specifications under job code 10620, the specific duties and authority of a Transportation Construction Inspector include, inter alia: • Performing technical inspections of road or bridge construction projects and materials testing work which involves district construction project safety, project records control, embankment compaction, major highway occupancy construction, reconstruction projects, contractor cost payment, or construction inspection and materials testing work; • Interpreting contract requirements through analysis of specifications and drawings and the application of a variety of testing and inspection techniques; • Resolving specifications, drawings, or construction problems; • Inspecting bridges as part of the bridge inspection program; • Inspecting highway and bridge occupancy plans and sites before and after completion to determine that specifications have been met; • Ensuring proper project safety standards and criteria by inspecting and reviewing such standards and training personnel associated with project construction; • Preparing or assisting the project supervisor in preparing periodic cost estimates and progress reports summarizing the project work activities; • Inspecting bridge structural members, foundations, supports, and components upon completion of an agency approved training program; and • Inspecting and performing tests on concrete and bituminous products at vendor or project locations to assure specification and standard compliance. Job classification specifications, at 1. The job classification specifications state that "[a]ssignments require independent judgment in making technical decisions related to work assignment. Work is assigned with general instructions by a technical supervisor who reviews work for results obtained." Id. By letter dated June 16, 2009, you were notified of the date, time and location of the public meeting at which your request would be considered. On July 14, 2009, this Commission received your Brief, in which you argued that pursuant to Section 105.11 of PennDOT Publication 408, the duties of a Transportation Construction Inspector are ministerial in nature, and full decision making power rests with licensed professional engineers. At the public meeting on July 22, 2009, you appeared and reiterated your view that Section 105.11 of PennDOT Publication 408 prohibits a Transportation Construction Inspector from taking any official action of a nonministerial nature. 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 Stafford, 09 -003 August 4, 2009 Page 5 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). We shall begin our analysis by determining whether in your former capacity as a probationary Transportation Construction Inspector with PennDOT under job code 10620, you would be considered a public employee subject to the Ethics Act. 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 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 Stafford, 09 -003 August 4, 2009 Page 6 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. (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. Stafford, 09 -003 August 4, 2009 Page 7 (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 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, Phillips, supra. In applying the objective test in the instant matter, we conclude that in the former capacity as a probationary Transportation Construction Inspector with PennDOT under job code 10620, 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. 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, Reese /Gilliland, Opinion 05 -005. The objective sources defining your position - -the official position description and the job classification specifications under job code 10620 -- establish that as a probationary Transportation Construction Inspector with PennDOT, you had the authority, inter alia, to do the following: • Perform independent inspection of highway occupancy permit locations and Stafford, 09 -003 August 4, 2009 Page 8 work in progress and upon completion to ensure compliance with departmental requirements, approved plans, materials, and workmanship requirements; • Perform technical inspections of road or bridge construction projects; • Perform materials testing work; • Interpret contract requirements through analysis of specifications and drawings and the application of a variety of testing and inspection techniques; • Resolve specifications, drawings, or construction problems; • Inspect bridges as part of the bridge inspection program; • Inspect highway and bridge occupancy plans and sites before and after completion to determine that specifications have been met; • Prepare or assist the project supervisor in preparing periodic cost estimates and progress reports summarizing the project work activities; and • Inspect and perform tests on concrete and bituminous products at vendor or project locations to assure specification and standard compliance. Based upon the above, we find that your authority includes responsibility for taking or recommending official action of a nonministerial nature with regard to categories (4) and (5) of the Ethics Act's definition of "public employee," specifically, "inspecting, licensing, regulating or auditing any person" and 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. Your authority to perform inspections of highway occupancy permit locations, road or bridge construction projects, and highway and bridge occupancy plans and sites to ensure compliance with departmental requirements, specifications, or standards would bring you squarely within the Ethics Act's definition of "public employee." Additionally, your authority to perform materials testing work, interpret contract requirements, resolve specifications, drawings, or construction problems, inspect bridges as part of the bridge inspection program, and prepare or assist the project supervisor in preparing cost estimates would provide additional support for the conclusion that you are a "public employee" subject to the provisions of the Ethics Act. We reject your assertion that the duties of a Transportation Construction Inspector are ministerial in nature. Per the job classification specifications under job code 10620, the assignments of a Transportation Construction Inspector "require independent judgment in making technical decisions related to work assignment[s]." Job classification specifications, at 1. Based upon the objective sources before us, a Transportation Construction Inspector's actions are non - ministerial because they require the exercise of independent judgment. See, Clarke, Opinion 04 -012. The fact that PennDOT Publication 408, Section 105 does not authorize an inspector to revoke, alter, enlarge, relax, or release any requirements of the specifications, approve or accept any portion of the work, or issue instructions contrary to the plans and specifications, does not evidence a lack of discretionary authority with regard to performing the job duties and responsibilities set forth in the objective sources defining the position of Transportation Construction Inspector. Having determined that you would be considered a public employee subject to the Ethics Act in your former capacity as a probationary Transportation Construction Inspector with PennDOT, it necessarily follows that upon termination of employment with PennDOT, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. Stafford, 09 -003 August 4, 2009 Page 9 We agree with Advice of Counsel 09 -535 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 09 -535 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 Stafford, Advice of Counsel 09 -535. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. IV. CONCLUSION: In the former capacity as a probationary Transportation Construction Inspector with the Pennsylvania Department of Transportation ( "PennDOT ") under job code 10620, 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, 51 Pa. Code § 11.1 et seq. Upon termination of employment with PennDOT, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be PennDOT in its entirety. The appeal is denied. Advice of Counsel 09 -535 is affirmed. Act. The propriety of the proposed conduct has only been addressed under the Ethics Pursuant to Section 1107(10) of the Ethics Act, 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. 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