HomeMy WebLinkAbout11-542 Fitzgerald
ADVICE OF COUNSEL
July 14, 2011
John E. Fitzgerald
Box 81
Harrisburg, PA 17108
11-542
Dear Mr. Fitzgerald:
This responds to your letter dated June 10, 2011, styled a Financial Interest
disclosure appeal, which will be treated as a request for advice from the Pennsylvania
State Ethics Commission.
Issue:
Whether, as an Environmental Engineering Specialist with the
Pennsylvania Department of Environmental Protection under job code 14520, 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., and particularly, the requirements for
filing Statements of Financial Interests.
Facts:
You seek a determination as to whether, in your capacity as an
Environmental Engineering Specialist with the Pennsylvania Department of
Environmental Protection (“DEP”) under job code 14520, you are a “public employee”
subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65
Pa.C.S. § 1102; 51 Pa. Code § 11.1. You specifically question whether you are
required to file Statements of Financial Interests.
Copies of your official Commonwealth position description and the job
classification specifications for the position of Environmental Engineering Specialist, job
code 14520, have been obtained and are incorporated herein by reference.
Per your official Commonwealth position description, your duties and
responsibilities include the following:
?
Providing engineering support in the review of landfill permit applications,
development of engineering standards for hazardous, residual and
municipal waste management facilities applications and review of
hazardous waste facilities and for sound operating management;
?
Performing reviews of site assessments, characterization, and remediation
plans;
Fitzgerald, 11-542
July 14, 2011
Page 2
?
Evaluating feasibility studies relating to the implementation of remedial
actions, response actions and other abatement measures associated with
various projects;
?
Under the direction of the Responsible Engineer in Charge for the Division
of Municipal and Residual Waste, reviewing landfill permit applications for
the Division for engineering soundness and compliance with rules and
regulations;
?
Making recommendations to the Responsible Engineer in Charge relative
to engineering review of designs and standards;
?
Reviewing site plans for locating and siting storage tanks for compliance
with sound engineering practices and operations and providing
recommendations/observations/conclusions to the Responsible Engineer
in Charge;
?
Evaluating the effectiveness of current departmental procedures, policies,
guidelines, rules, regulations, and other standards and developing,
coordinating, and recommending modification to such standards to the
Professional Engineer in Charge;
?
Inspecting complex toxic release sites and remediation projects when
under construction and after completion of construction to assure
adherence to approved plans and specifications;
?
Performing cost analysis of proposed regulations or other departmental
standards which may impact upon construction costs; and
?
Documenting and tracking Department staff work hours associated with
the oversight of projects administered by the Bureau and submitting
invoices to companies for reimbursement of oversight costs accrued by
Department staff each fiscal year.
Position Description, at 1-2.
Per the job classification specifications under job code 14520, an Environmental
Engineering Specialist:
?
Makes technical recommendations on the agency’s approach to a
particular permit application, case or project, with final technical decisions
to be made by a professional engineer and/or program manager;
?
Performs professional environmental engineering work in the review of
applications for permits, plans or variances to determine if the proposed
action conforms to engineering standards and federal and state laws and
regulations;
?
Investigates complaints directed toward a facility, operation or landowner
by conducting site visits, interviewing individuals, performing engineering
analyses and preparing technical reports outlining findings and
recommendations;
?
Conducts field inspections to determine the compliance status or
operational efficiency of a permitted facility from an engineering
standpoint, prepares inspection reports to summarize observations, and
recommends appropriate action or adjustments;
Fitzgerald, 11-542
July 14, 2011
Page 3
?
Conducts facility and project inspections during construction and after
completion to determine adherence to engineering design plans and
specifications, to detect deficiencies in materials, work methods or
procedures, and to resolve problems resulting from unusual site
conditions;
?
Participates in the development of the engineering components of a
statewide environmental regulatory program, including regulations,
policies, standards, procedures, methods and technical guidance, and
participates in program evaluations;
?
Reviews and evaluates permit applications and makes technical
recommendations for agency action;
?
Participates in the evaluation of more complex treatment facilities, such as
conventional filtration, membrane filtration, pilot studies, air stripping, and
ion exchange systems, by participating in the engineering analysis of filter
plant performance evaluations and making technical recommendations for
agency action;
?
Conducts engineering services in the survey, design and evaluation of
waterway obstructions and wetlands restoration projects; and
?
Investigates abandoned mine sites or problem areas in order to determine
the extent of environmental degradation, threat to public safety and
eligibility for funding and prepares preliminary reclamation schemes.
Job Classification Specifications, at 1-3.
You state that in July 2009, your position description was revised to add the job
duties of an Environmental Engineer who had retired and that you were not trained to
perform such new duties. You state that you have a mining engineering degree and not
a civil engineering degree and that you do not know how to perform job duties such as
reviewing landfill permits, inspecting complex toxic release sites, and the like. You
further state that you were assigned work to prepare bills for the Comptrollers Office to
bill the United States military for reimbursement of Pennsylvania’s oversight costs at
military sites in Pennsylvania and that you are qualified to perform such work. You
additionally state that your position description has not been revised to reflect the actual
work that you currently perform.
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:
Fitzgerald, 11-542
July 14, 2011
Page 4
(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.
(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
Fitzgerald, 11-542
July 14, 2011
Page 5
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.
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. 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
Fitzgerald, 11-542
July 14, 2011
Page 6
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), allocatur denied, 4 A.3d 1056 (Pa. 2010); 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.
In applying the objective test in the instant matter, the necessary conclusion is that,
in your capacity as an Environmental Engineering Specialist with DEP under job code
14520, you are a “public employee” subject to the Ethics Act and the Regulations of the
Commission, and in particular, the requirements for filing Statements of Financial
Interests pursuant to the Ethics Act.
As an Environmental Engineering Specialist under job code 14520, you have the
ability to take or recommend official action of a nonministerial nature with respect to
subparagraphs (4) and (5) within the definition of “public employee” as set forth in the
Ethics Act, 65 Pa.C.S. § 1102. Specifically, the following duties and authority set forth in
your official position description and the job classification specifications under job code
14520 would be sufficient to establish your status as a “public employee” subject to the
Ethics Act:
?
Providing engineering support in the review of landfill permit applications,
development of engineering standards for hazardous, residual and
municipal waste management facilities applications and review of
hazardous waste facilities and for sound operating management;
?
Performing reviews of site assessments, characterization, and remediation
plans;
?
Making recommendations to the Responsible Engineer in Charge relative
to engineering review of designs and standards;
?
Reviewing site plans for locating and siting storage tanks for compliance
with sound engineering practices and operations and providing
recommendations/observations/conclusions to the Responsible Engineer
in Charge;
?
Evaluating the effectiveness of current departmental procedures, policies,
guidelines, rules, regulations, and other standards and developing,
coordinating, and recommending modification to such standards to the
Professional Engineer in Charge;
?
Inspecting complex toxic release sites and remediation projects when
under construction and after completion of construction to assure
adherence to approved plans and specifications;
?
Documenting and tracking Department staff work hours associated with
the oversight of projects administered by the Bureau and submitting
Fitzgerald, 11-542
July 14, 2011
Page 7
invoices to companies for reimbursement of oversight costs accrued by
Department staff each fiscal year;
?
Making technical recommendations on the agency’s approach to a
particular permit application, case or project, with final technical decisions
to be made by a professional engineer and/or program manager;
?
Performing professional environmental engineering work in the review of
applications for permits, plans or variances to determine if the proposed
action conforms to engineering standards and federal and state laws and
regulations;
?
Investigating complaints directed toward a facility, operation or landowner
by conducting site visits, interviewing individuals, performing engineering
analyses and preparing technical reports outlining findings and
recommendations;
?
Conducting field inspections to determine the compliance status or
operational efficiency of a permitted facility from an engineering
standpoint, preparing inspection reports to summarize observations, and
recommending appropriate action or adjustments;
?
Conducting facility and project inspections during construction and after
completion to determine adherence to engineering design plans and
specifications, to detect deficiencies in materials, work methods or
procedures, and to resolve problems resulting from unusual site
conditions;
?
Participating in the development of the engineering components of a
statewide environmental regulatory program, including regulations,
policies, standards, procedures, methods and technical guidance, and
participating in program evaluations;
?
Reviewing and evaluating permit applications and making technical
recommendations for agency action;
?
Participating in the evaluation of more complex treatment facilities, such
as conventional filtration, membrane filtration, pilot studies, air stripping,
and ion exchange systems by participating in the engineering analysis of
filter plant performance evaluations and making technical
recommendations for agency action;
?
Conducting engineering services in the survey, design and evaluation of
waterway obstructions and wetlands restoration projects; and
?
Investigating abandoned mine sites or problem areas in order to
determine the extent of environmental degradation, threat to public safety,
and eligibility for funding.
The foregoing duties/authority would also meet the criteria for determining your
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 as an Environmental Engineering Specialist
with DEP under job code 14520, you are a “public employee” subject to the provisions
of the Ethics Act and the Regulations of the State Ethics Commission, and in particular,
Fitzgerald, 11-542
July 14, 2011
Page 8
the requirements for filing Statements of Financial Interests pursuant to the Ethics Act.
Cf., Brenchley, Advice 08-593.
Conclusion:
As an Environmental Engineering Specialist with the Pennsylvania
Department of Environmental Protection under job code 14520, you are 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. Accordingly, you must file a Statement of Financial
Interests each year in which you hold the aforesaid position and the year following
termination of such service.
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
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