HomeMy WebLinkAbout10-509 Zamorski
ADVICE OF COUNSEL
January 8, 2010
Ralph J. Teti, Esquire
Willig, Williams & Davidson
Twenty-Fourth Floor
1845 Walnut Street
Philadelphia, PA 19103
10-509
Dear Mr. Teti:
This responds to your letters dated October 26, 2009, and November 12, 2009,
by which you requested an advisory from the Pennsylvania State Ethics Commission.
Issue:
Whether an individual employed as a Surveyor 2 with the City of
Philadelphia Streets Department under job class specification 3F05 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., and particularly, the requirements for filing
Statements of Financial Interests.
Facts:
You have been authorized by John Zamorski (“Mr. Zamorski”) to request
an advisory from the Pennsylvania State Ethics Commission on his behalf. You have
submitted facts, the material portion of which may be fairly summarized as follows.
Mr. Zamorski is employed as a Surveyor 2 with the City of Philadelphia (“City”)
Streets Department under job class specification 3F05. You have submitted a copy of
job class specification 3F05 for Mr. Zamorski’s position as a Surveyor 2, which
document is incorporated herein by reference.
Job class specification 3F05 provides, in pertinent part, as follows:
GENERAL DEFINITION
This is surveying work supervising the field activities of two or more survey
corps. Employees in this class coordinate field and office operations,
develop corps work assignments and assist survey corps leaders in
resolving difficult surveying problems and in making related computations.
Employees compute and prepare engineered plans, make computations
of assessments of estimates and prepare sketches and plans form [sic]
field notes.
Teti/Zamorski, 10-509
January 8, 2010
Page 2
Conferring with contractors, builders and developers and supervising a
group of survey corps involved in the development of construction and/or
land surveys are significant aspects of the work. Work is performed under
the general supervision of a technical superior.
------------------------------------------------------
TYPICAL EXAMPLES OF WORK (ILLUSTRATIVE ONLY)
Receives and studies new survey assignments to determine priorities and
the amount of time needed to complete the work; designates a
corps leader to direct survey corps in making the study; assists
corps leaders in obtaining all necessary background information;
issues special instructions and directions regarding problems or
obstacles which might be encountered; visits survey corps in the
field to observe, their work and to advise them on technical
problems; reviews corps leaders’ field notebooks for accuracy and
completeness of sketches, notations and calculations; assists
survey corps leaders in resolving difficult surveying problems and in
making related computations.
Prepares time estimates for employees engaged in a given project;
prepares preliminary material estimates for construction of paving
projects; reviews findings of field survey corp. [sic]; re-checks the
amount and kinds of materials used for certification of payment to
contractors.
Prepares and supervises the preparation of sketches, plans and drawings
for field notes; may participate in the preparation of specifications
and contract documents; makes necessary calculations for revised
lines, grades, and arcs; computes assessment bills against
properties for public improvements.
Confers with contractors, builders, developers, lawyers and the general
public upon matters pertaining to surveys.
Performs related work as required.
. . . .
Job Class Specification 3F05, at 1-2.
Mr. Zamorski works in a Streets Department office (“the Office”) in the City. You
state that Mr. Zamorski assesses the nature of a survey job and assigns personnel to
handle the duties. You state that Mr. Zamorski has an immediate supervisor who
approves all projects before they get started. You state that Mr. Zamorski is not the
supervisor of the highest level of the Office where he is assigned or of the division in
which he works.
You note that Mr. Zamorski handles the front counter of the Office where
members of the public make requests to have surveys completed. You state that Mr.
Zamorski informs such individuals what a survey would cost and that he has no
discretion in the amount the City charges for such work. You state that Mr. Zamorski
takes payment in the form of checks, money orders and cash, provides receipts, and
ensures that all such payments are deposited in a bank.
Teti/Zamorski, 10-509
January 8, 2010
Page 3
You state that Mr. Zamorski has no involvement in vendor selection for contracts
and no involvement in spending City funds.
You assert that Mr. Zamorski does not have the authority to make final decisions
or to forward or stop recommendations from being sent to final decision makers and that
he does not make recommendations or take such actions that would affect other
departments, divisions or commissions within the City. You further assert that an
individual employed in the position of Surveyor 2 is not responsible for taking or
recommending official action of a nonministerial nature that would bring such individual
within the definition of “public employee” as set forth in the Ethics Act.
Based upon the above, you ask whether Mr. Zamorski, in his position as a
Surveyor 2 with the City Streets Department under job class specification 3F05, would
be considered a public employee subject to the Ethics Act, and in particular, the
requirements for filing Statements of Financial Interests pursuant to the Ethics Act.
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.
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:
Teti/Zamorski, 10-509
January 8, 2010
Page 4
(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.
(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
Teti/Zamorski, 10-509
January 8, 2010
Page 5
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.
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. Commw. Ct. 1984); Eiben,
Opinion 04-002;Shienvold, Opinion 04-001; Shearer, Opinion 03-011. The
Commonwealth Court of Pennsylvania has specifically considered and approved the
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.
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, e.g., Reese/Gilliland, Opinion 05-
005.
Based upon the above judicial directives, the provisions of the Ethics Act, the State
Ethics Commission Regulations, and the opinions of the State Ethics Commission, in light
of Mr. Zamorski’s duties and responsibilities, the necessary conclusion is that in his
Teti/Zamorski, 10-509
January 8, 2010
Page 6
position as a Surveyor 2 with the City Streets Department under job class specification
3F05, Mr. Zamorski is a "public employee" subject to the Ethics Act, including the
financial reporting and disclosure requirements of the Ethics Act.
It is clear that in his capacity as a Surveyor 2 under job class specification 3F05,
Mr. Zamorski has the ability to take or recommend official action of a nonministerial
nature with respect to subparagraph (5) within the definition of “public employee” as set
forth in the Ethics Act, 65 Pa.C.S. § 1102. The following duties and authority establish
Mr. Zamorski’s status as a public employee:
?
Supervising and providing direction to Streets Department personnel, including
survey corps involved in the development of construction and/or land surveys;
?
Computing and preparing engineered plans;
?
Preparing time estimates for employees engaged in a given project and
preliminary material estimates for construction of paving projects;
?
Re-checking the amount and kinds of materials used for certification of payment
to contractors;
?
Participating in the preparation of specifications and contract documents;
?
Computing assessment bills against properties for public improvements; and
?
Taking checks, money orders, and cash as payment for surveys requested by
the public and ensuring that such payments are deposited in a bank.
The foregoing duties/authority would also meet the criteria for determining Mr.
Zamorski’s status as a public employee under the Regulations of the State Ethics
Commission, specifically at 51 Pa. Code § 11.1, “public employee,” subparagraphs (i)
and (ii).
Therefore, you are advised that in his position as a Surveyor 2 with the City
Streets Department under job class specification 3F05, Mr. Zamorski is a “public
employee” subject to the provisions of the Ethics Act and the Regulations of the State
Ethics Commission, and in particular, the requirements for filing Statements of Financial
Interests pursuant to the Ethics Act.
Conclusion:
As a Surveyor 2 with the City of Philadelphia Streets Department
under job class specification 3F05, John Zamorski is 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., and in
particular, the requirements for filing Statements of Financial Interests pursuant to 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.
Teti/Zamorski, 10-509
January 8, 2010
Page 7
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