HomeMy WebLinkAbout11-005 Fitzgerald
OPINION OF THE COMMISSION
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Raquel K. Bergen
Nicholas A. Colafella
Mark Volk
DATE DECIDED: 9/27/11
DATE MAILED: 10/13/11
11-005
John E. Fitzgerald
Box 81
Harrisburg, PA 17108
Dear Mr. Fitzgerald:
This Opinion is issued in response to the appeal of Advice of Counsel 11-542,
which was issued on July 14, 2011.
I.ISSUE:
Whether an individual employed by the Commonwealth of Pennsylvania as an
Environmental Engineering Specialist with the Pennsylvania Department of Environmental
Protection under job code 14520 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 in particular,
the requirements for filing Statements of Financial Interests pursuant to the Ethics Act.
II.FACTUAL BASIS FOR DETERMINATION:
By letter dated August 11, 2011, you appealed Advice of Counsel 11-542, which
was issued on July 14, 2011.
Your initial advisory request presented facts that were summarized in the Advice of
Counsel as follows:
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
Fitzgerald, 11-005
October 13, 2011
Page 2
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;
?
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;
Fitzgerald, 11-005
October 13, 2011
Page 3
?
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;
?
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,
Fitzgerald, 11-005
October 13, 2011
Page 4
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.
Fitzgerald, Advice of Counsel 11-542, at 1-3.
Advice of Counsel 11-542 determined that 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 this Commission, and in particular, the requirements for filing
Statements of Financial Interests pursuant to the Ethics Act. The Advice determined that
you have the ability to take or recommend official action of a nonministerial nature that
would satisfy subparagraphs (4) and (5) within the statutory definition of “public employee”
(respectively pertaining to “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)), 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, “public employee,” subparagraphs (i) and (ii).
The Advice specifically noted your authority to: provide 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; perform reviews of site
assessments, characterization, and remediation plans; make recommendations to the
Responsible Engineer in Charge relative to engineering review of designs and standards;
review site plans for locating and siting storage tanks for compliance with sound
engineering practices and operations and provide recommendations/observations/
conclusions to the Responsible Engineer in Charge; evaluate the effectiveness of current
departmental procedures, policies, guidelines, rules, regulations, and other standards and
develop, coordinate, and recommend modification to such standards to the Professional
Fitzgerald, 11-005
October 13, 2011
Page 5
Engineer in Charge; inspect complex toxic release sites and remediation projects when
under construction and after completion of construction to assure adherence to approved
plans and specifications; document and track Department staff work hours associated with
the oversight of projects administered by the Bureau and submit invoices to companies for
reimbursement of oversight costs accrued by Department staff each fiscal year; make
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; perform 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; investigate 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; conduct field inspections to determine the compliance
status or operational efficiency of a permitted facility from an engineering standpoint,
prepare inspection reports to summarize observations, and recommend appropriate action
or adjustments; conduct 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; participate in the development of the engineering
components of a statewide environmental regulatory program, including regulations,
policies, standards, procedures, methods and technical guidance, and participate in
program evaluations; review and evaluate permit applications and make technical
recommendations for agency action; participate 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;
conduct engineering services in the survey, design and evaluation of waterway
obstructions and wetlands restoration projects; and investigate abandoned mine sites or
problem areas in order to determine the extent of environmental degradation, threat to
public safety, and eligibility for funding.
By letter dated August 11, 2011, you appealed Advice of Counsel 11-542. Your
appeal letter did not state any particular basis for the appeal, but merely exercised the
right to appeal the Advice of Counsel.
The position description and the job classification specifications for the aforesaid
position (job code 14520) are incorporated herein by reference. It is noted that the
position description is dated July 24, 2009, and the job classification specifications are
dated March 30, 2007.
By letter dated August 16, 2011, you were notified of the date, time and location of
the public meeting at which your request would be considered.
On September 19, 2011, this Commission received your letter of same date, with
attachments, which further elaborated on your claim that your Commonwealth Position
Description includes duties beyond your actual duties and abilities.
At the public meeting on September 27, 2011, you appeared and stated that you are
unable to perform any of the duties in your Commonwealth Position Description that are
related to engineering because you do not have a Professional Engineer license. You
stated that you were assigned new job duties that you have not been trained to perform
and are unable to perform.
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
Fitzgerald, 11-005
October 13, 2011
Page 6
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).
We shall begin our analysis by noting the established principle that the Ethics Act,
as remedial legislation, is to be liberally construed. Maunus v. State Ethics Commission,
518 Pa. 592, 544 A.2d 1324 (1988).
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
Fitzgerald, 11-005
October 13, 2011
Page 7
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 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,
Fitzgerald, 11-005
October 13, 2011
Page 8
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 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.
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,
Quaglia v. State Ethics Commission, 986 A.2d 974 (Pa. Cmwlth. 2010), allocatur denied,
607 Pa. 708, 4 A.3d 1056 (Pa. 2010); Phillips, supra.
In applying the objective test in the instant matter, we conclude 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 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”); see also, Gilliland/Reese, Opinion 05-005.
The objective sources defining your position--the official position description and the
job classification specifications under job code 14520--establish that as an Environmental
Engineering Specialist with DEP, you have the authority, inter alia, to do the following:
(Per Position Description)
?
Provide engineering support in the review of landfill permit applications,
development of engineering standards for hazardous, residual and municipal
Fitzgerald, 11-005
October 13, 2011
Page 9
waste management facilities applications and review of hazardous waste
facilities and for sound operating management;
?
Perform reviews of site assessments, characterization, and remediation
plans;
?
Make recommendations to the Responsible Engineer in Charge relative to
engineering review of designs and standards;
?
Review site plans for locating and siting storage tanks for compliance with
sound engineering practices and operations and provide
recommendations/observations/conclusions to the Responsible Engineer in
Charge;
?
Evaluate the effectiveness of current departmental procedures, policies,
guidelines, rules, regulations, and other standards and develop, coordinate,
and recommend modification to such standards to the Professional Engineer
in Charge;
?
Inspect complex toxic release sites and remediation projects when under
construction and after completion of construction to assure adherence to
approved plans and specifications; and
?
Document and track Department staff work hours associated with the
oversight of projects administered by the Bureau and submit invoices to
companies for reimbursement of oversight costs accrued by Department staff
each fiscal year.
(Per Job Classification Specifications)
?
Make 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;
?
Perform 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;
?
Investigate 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;
?
Conduct field inspections to determine the compliance status or operational
efficiency of a permitted facility from an engineering standpoint, prepare
inspection reports to summarize observations, and recommend appropriate
action or adjustments;
?
Conduct 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;
?
Participate in the development of the engineering components of a statewide
environmental regulatory program, including regulations, policies, standards,
Fitzgerald, 11-005
October 13, 2011
Page 10
procedures, methods and technical guidance, and participate in program
evaluations;
?
Review and evaluate permit applications and make technical
recommendations for agency action;
?
Participate 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;
?
Conduct engineering services in the survey, design and evaluation of
waterway obstructions and wetlands restoration projects; and
?
Investigate abandoned mine sites or problem areas in order to determine the
extent of environmental degradation, threat to public safety and eligibility for
funding and prepare preliminary reclamation schemes.
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: (1) in spect complex toxic release sites and remediation projects
when under construction and after completion of construction to assure adherence to
approved plans and specifications; (2) make 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; (3) perform 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; (4) conduct field inspections to determine the
compliance status or operational efficiency of a permitted facility from an engineering
standpoint, prepare inspection reports to summarize observations, and recommend
appropriate action or adjustments; (5) conduct 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; and (6) review and evaluate
permit applications and make technical recommendations for agency action, would bring
you squarely within the Ethics Act’s definition of “public employee.”
Additionally, your authority to: (1) provide 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; (2) perform reviews of site assessments,
characterization, and remediation plans; (3) make recommendations to the Responsible
Engineer in Charge relative to engineering review of designs and standards; (4) review site
plans for locating and siting storage tanks for compliance with sound engineering practices
and operations and provide recommendations/observations/conclusions to the
Responsible Engineer in Charge; (5) evaluate the effectiveness of current departmental
procedures, policies, guidelines, rules, regulations, and other standards and develop,
coordinate, and recommend modification to such standards to the Professional Engineer in
Charge; (6) d ocument and track Department staff work hours associated with the oversight
of projects administered by the Bureau and submit invoices to companies for
reimbursement of oversight costs accrued by Department staff each fiscal year; (7)
Fitzgerald, 11-005
October 13, 2011
Page 11
investigate 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; (8) participate in the development of the
engineering components of a statewide environmental regulatory program, including
regulations, policies, standards, procedures, methods and technical guidance, and
participate in program evaluations; (9) participate 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;
(10) conduct engineering services in the survey, design and evaluation of waterway
obstructions and wetlands restoration projects; and (11) investigate abandoned mine sites
or problem areas in order to determine the extent of environmental degradation, threat to
public safety and eligibility for funding and prepare preliminary reclamation schemes,
would provide additional support for the conclusion that you are a “public employee”
subject to the provisions of the Ethics Act.
As for your claim that in 2009, duties beyond your actual duties and abilities were
added to your position description, this Commission would not have jurisdiction to resolve
such an issue. In any event, the job duties set forth in your job classification specifications
are sufficient to establish your status as a public employee subject to the Ethics Act,
regardless of any issues as to the content of your position description.
Having determined that 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 this Commission, it necessarily follows that you are required to file Statements of
Financial Interests pursuant to the Ethics Act. The Ethics Act requires that a public
official/public employee file a Statement of Financial Interests by May 1 each year that he
holds the public position and the year after he leaves it. 65 Pa.C.S. § 1104(a).
Based upon the above analysis, we deny the appeal and affirm Advice of Counsel
11-542.
Lastly, this matter has only been addressed under the Ethics Act.
IV.CONCLUSION:
In your capacity 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. You are required to file Statements of Financial Interests pursuant to the Ethics Act.
The appeal is denied. Advice of Counsel 11-542 is affirmed.
This matter has only been addressed under the Ethics Act.
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.
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).
Fitzgerald, 11-005
October 13, 2011
Page 12
By the Commission,
Louis W. Fryman
Chair