HomeMy WebLinkAbout12-502 McLaughlin
ADVICE OF COUNSEL
January 24, 2012
Paul McLaughlin
138 Route 908 Extension
Tarentum, PA 15084
12-502
Dear Mr. McLaughlin:
This responds to your faxed transmission received December 5, 2011, by which
you requested an advisory from the Pennsylvania State Ethics Commission.
Issue:
Whether, in your former capacity as a Finals Unit Manager with the
Pennsylvania Department of Transportation (“PennDOT”), 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., such that the restrictions of Section 1103(g) of the Ethics Act would
now be applicable to you.
Facts:
You have requested an advisory from the Pennsylvania State Ethics
Commission based upon submitted facts, the material portion of which may be fairly
summarized as follows.
On August 12, 2011, you resigned from Commonwealth employment as the
Finals Unit Manager in PennDOT Engineering District 11-0 (“District 11-0”). You state
that the position of Finals Unit Manager was classified as a Transportation Construction
Manager 1. You further state that once you left PennDOT, the Finals Unit Manager
position was reclassified as a Civil Engineer Supervisor. You have submitted a copy of
a position description (“Position Description”) for the position of Civil Engineer
Supervisor, which document is incorporated herein by reference. You state that the
duties and responsibilities in the Position Description are the same as those of your
previous position with PennDOT and that only the job classification is different. Copies
of the job classification specifications for the positions of Civil Engineer Supervisor (job
code 11118) and Transportation Construction Manager 1 (job code 10640) have been
obtained and are incorporated herein by reference.
Per the Position Description, the duties and responsibilities of a Civil Engineer
Supervisor include:
?
Providing support for the Construction Division from the start of a construction
project through finalization and archiving of project information;
?
Managing a staff that supports the functions in the areas of documentation, CDS
NeXtGen, ECMS, DBE/EEO, labor compliance, subcontractor request approval,
construction safety issues, work order reviews, field reviews, and final auditing of
project records;
McLaughlin, 12-502
January 24, 2012
Page 2
?
Generating position descriptions, interviewing and recommending employee
selection, assigning work, reviewing work performance, evaluating employee
performance, preparing and reviewing employee performance reviews, and
approving payrolls, leave requests, and expense vouchers;
?
Monitoring labor contract compliance regarding payment of specified wages and
recommending action to be taken with the investigation of reports of non-
compliance in payments of prevailing wages;
?
Managing the District’s work order procedure, including review and monitoring of
work orders through approval status in accordance with department procedures;
?
Monitoring the audit of ongoing construction projects and their compliance with
required documentation procedures, reviewing audit schedules and establishing
completion dates for various operations;
?
Ensuring audits conform to Department standards and policies, and providing for
the accountability, effective management and utilization of construction funds
administered by the District;
?
Conferring with the Assistant Construction Engineers and Design Engineers and
conducting meetings with contractor representatives to resolve disputes over
final quantities and costs;
?
Overseeing the preparation of support data required to request overpayments
from contractors for discrepancies found as a result of the final audit;
?
Computing and submitting for processing all final quantities involving Municipality
Reimbursement Agreements;
?
Developing and approving the methods of correcting deficiencies, violations,
and/or noncompliance and deviations found as a result of the final audit and
technical conference;
?
Serving as the Inspector-in-Charge of highway and bridge construction projects
on an as needed basis as determined by the ADE-Construction;
?
Ensuring the inspection of materials and workmanship for compliance with the
contract requirements and established Departmental standards and
specifications;
?
Ensuring that contract and Departmental specifications and requirements are
followed by the contractor and reporting, as required, operations deviating from
contract specifications; and
?
Interpreting contract requirements to contractors and subordinates and
instructing subordinate sampling, testing, and inspection techniques when
necessary.
Position Description, at 1-3.
Per the job classification specifications under job code 11118, a Civil Engineer
Supervisor performs a variety of engineering duties in the design, construction, or
maintenance of roads, bridges, flood control, mine reclamation, recreational structures
and facilities or other civil engineering projects by serving as a project engineer and
supervising technicians and/or inspectors in ensuring contractors complete work in
accordance with established agreements in the maintenance and construction areas.
Examples of the work performed by a Civil Engineer Supervisor include:
?
In a transportation engineering environment--supervising the quality control or
quality acceptance inspection and field testing of construction and maintenance
material sources;
?
In any civil engineering environment--serving as a construction engineer for
roadways, bridges, and other civil engineering projects, checking contractors’
work for compliance with contract stipulations and specifications, making
changes in design as indicated by on-site conditions, and estimating amount of
work completed for purposes of making payments to contractors;
McLaughlin, 12-502
January 24, 2012
Page 3
?
In a transportation engineering environment--performing or reviewing
mathematical calculations for design geometrics, grade lines, alignments, stress
analysis, and hydraulic reviews, and conducting market analysis and computing
cost of work in the preparation of project cost estimates and schedules;
?
In a transportation environment--coordinating and participating in the monitoring
of work units completed, work hours spent, equipment utilization, and materials
usage and reviewing output data to identify reasons for work program problems
in roadway programs management; and
?
In any civil engineering environment--performing the full range of supervisory
functions.
Job Classification Specifications, Job Code 11118, at 1-2.
Per the job classification specifications under job code 10640, a Transportation
Construction Manager 1:
?
Directs, through subordinate supervisors, the inspection of highway or bridge
projects encompassing new construction or reconstruction of pavement, single
span bridge structures or limited interchanges such as those at grade level
without cloverleafs and multiple overpasses;
?
Supervises or prepares periodic cost estimates and progress reports
summarizing, in detail, the project work activities including records of labor,
material, and equipment used;
?
Ensures that construction is in conformance with approved codes, plans, and
specifications;
?
Reviews performance and prepares or reviews and signs employee performance
evaluation reports;
?
Receives grievances and complaints, conducts initial investigation into causes
and conditions, discusses with employees, and resolves or recommends
solutions to grievances and complaints;
?
Receives, reviews, and approves or disapproves leave requests; and
?
Interprets contractual and administrative rights and obligations for employees
and modifies work environment or process to conform to changing conditions.
Job Classification Specifications, Job Code 10640, at 1-2. You state that the
Transportation Construction Manager 1 job classification specifications for your former
position would be different from those of a normal Transportation Construction Manager
1 because the classification is used for both inside the district office and for Inspectors-
in-Charge running PennDOT highway construction projects.
You state that as the Finals Unit Manager, you worked in the District Office and
never performed work as an Inspector-in-Charge. You state that one of your
subordinates was given a small project to manage as an Inspector-in-Charge, and that
he went directly to his Assistant Construction Engineer for any issues as to which he
needed guidance.
You state that you never performed duties out on a PennDOT construction
project and that you were never called upon to run any projects. You further state that
your job duties were strictly administrative and supportive in nature and that you did not
perform any inspection duties or control the approval of monies being paid out. You
additionally state that your job responsibilities never required you to have direct contact
with a contractor on pay issues.
You state that you managed a staff of six individuals whose responsibilities
included the oversight of project audits and the review of project work orders. You have
submitted extensive facts describing the work and oversight provided by the Finals Unit
as to final audits/reviews conducted to verify that contract items and adjustments have
McLaughlin, 12-502
January 24, 2012
Page 4
been documented and paid correctly. You state that the Finals Unit, including yourself
as the Finals Unit Manager, had no authority to approve or disapprove the changing of
overall contract dollar value and that executives within the District had such authority.
You assert that in your former capacity as the Finals Unit Manager, you were not
responsible for taking or recommending official action of a nonministerial nature that
would bring you within the definition of the term “public employee” as set forth in the
Ethics Act.
You are interested in pursuing employment as a transportation construction
inspector or a transportation construction inspector supervisor with a consulting
engineering firm. You state that you would also like “verification” on performing
documentation reviews on PennDOT construction projects to ensure that PennDOT
document procedures are being followed. You state that you would not come in contact
with contractors.
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would impose any restrictions upon you with regard to: (1) working as a
transportation construction inspector or a transportation construction inspector
supervisor with a consulting engineering firm; (2) performing documentation reviews on
PennDOT construction projects to ensure that PennDOT documentation procedures are
being followed; or (3) working on local projects being run by a municipality or city, where
PennDOT would have more of an oversight position because of the inclusion of federal
money in such projects.
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.
In responding to your inquiry, the threshold question to be addressed is whether,
in your former capacity as a Finals Unit Manager with PennDOT, 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.
McLaughlin, 12-502
January 24, 2012
Page 5
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
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.
McLaughlin, 12-502
January 24, 2012
Page 6
(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 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, Quaglia v. State
Ethics Commission, 986 A.2d 974 (Pa. Cmwlth. 2010), allocatur denied, 4 A.3d 1056
(Pa. 2010); Phillips, supra.
In applying the objective test in the instant matter, the necessary conclusion is that,
in your former capacity as a Finals Unit Manager with PennDOT, you would be
considered a “public employee” subject to the Ethics Act. Such status is fully established
by the duties and authority set forth in the Position Description that you submitted.
McLaughlin, 12-502
January 24, 2012
Page 7
Per the Position Description, in your capacity as a Finals Unit Manager with
PennDOT, you had 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. Such duties and authority included, inter alia:
?
Interviewing and recommending employee selection, managing staff, evaluating
employee performance, preparing and reviewing employee performance reviews,
and approving payrolls, leave requests, and expense vouchers;
?
Managing the District’s work order procedure, including review and monitoring of
work orders through approval status in accordance with department procedures;
?
Monitoring the audit of ongoing construction projects and their compliance with
required documentation procedures;
?
Providing for the accountability, effective management and utilization of
construction funds administered by the District;
?
Conducting meetings with contractor representatives to resolve disputes over
final quantities and costs;
?
Serving as the Inspector-in-Charge of highway and bridge construction projects
on an as needed basis as determined by the ADE-Construction;
?
Ensuring the inspection of materials and workmanship for compliance with the
contract requirements and established Departmental standards and
specifications; and
?
Ensuring that contract and Departmental specifications and requirements are
followed by the contractor and reporting, as required, operations deviating from
contract specifications.
Position Description, at 1-3.
The aforesaid duties/authority set forth in the Position Description would be
sufficient to establish status as a public employee subject to the Ethics Act.
The duties/authority set forth in the job classification specifications for your
former position would, at most, provide additional support for the conclusion that as a
Finals Unit Manager for PennDOT, you were a public employee subject to the Ethics
Act.
Consequently, upon termination of employment with PennDOT, you became a
"former public employee" subject to Section 1103(g) of the Ethics Act.
While Section 1103(g) does not prohibit a former public official/public employee
from accepting a position of employment, it does restrict the former public official/public
employee with regard to “representing” a “person” before “the governmental body with
which he has been associated”:
§ 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) (Emphasis added).
The terms “represent,” “person,” and "governmental body with which a public
official or public employee is or has been associated" are specifically defined in the
Ethics Act as follows:
McLaughlin, 12-502
January 24, 2012
Page 8
§ 1102. Definitions
"Represent."
To act on behalf of any other person in
any activity which includes, but is not limited to, the
following: personal appearances, negotiations, lobbying and
submitting bid or contract proposals which are signed by or
contain the name of a former public official or public
employee.
"Person."
A business, governmental body,
individual, corporation, union, association, firm, partnership,
committee, club or other organization or group of persons.
"Governmental body with which a public official
or public employee is or has been associated."
The
governmental body within State government or a political
subdivision by which the public official or employee is or has
been employed or to which the public official or employee is
or has been appointed or elected and subdivisions and
offices within that governmental body.
65 Pa.C.S. § 1102.
The term "Person" is very broadly defined. It includes, inter alia, corporations and
other businesses. It also includes the former public employee himself, Confidential
Opinion, 93-005, as well as a new governmental employer. Ledebur, Opinion 95-007.
The term "representation" is also broadly defined to prohibit acting on behalf of
any person in any activity. Examples of prohibited representation include: (1) personal
appearances before the former governmental body or bodies; (2) attempts to influence;
(3) submission of bid or contract proposals which are signed by or contain the name of
the former public official/public employee; (4) participating in any matters before the
former governmental body as to acting on behalf of a person; and (5) lobbying.
Popovich, Opinion 89-005.
Listing one's name as the person who will provide technical assistance on a
proposal, document, or bid, if submitted to or reviewed by the former governmental
body, constitutes an attempt to influence the former governmental body. Section
1103(g) also generally prohibits the inclusion of the name of a former public official/
public employee on invoices submitted by his new employer to the former governmental
body, even if the invoices pertain to a contract that existed prior to termination of service
with such governmental body. Shay, Opinion 91-012. However, if such a pre-existing
contract does not involve the unit where the former public employee worked, the name
of the former public employee may appear on routine invoices if required by the
regulations of the agency to which the billing is being submitted. Abrams/Webster,
Opinion 95-011.
A former public official/public employee may assist in the preparation of any
documents presented to his former governmental body. However, the former public
official/public employee may not be identified on documents submitted to the former
governmental body. The former public official/public employee may also counsel any
person regarding that person's appearance before his former governmental body. Once
again, however, the activity in this respect should not be revealed to the former
governmental body. The Ethics Act would not prohibit or preclude making general
informational inquiries to the former governmental body to secure information which is
available to the general public, but this must not be done in an effort to indirectly
McLaughlin, 12-502
January 24, 2012
Page 9
influence the former governmental body or to otherwise make known to that body the
representation of, or work for, the new employer.
Section 1103(g) only restricts the former public official/public employee with
regard to representation before his former governmental body. The former public
official/public employee is not restricted as to representation before other agencies or
entities. However, the “governmental body with which a public official/public employee
is or has been associated” is not limited to the particular subdivision of the agency or
other governmental body where the public official/public employee had influence or
control but extends to the entire body. See, Legislative Journal of House, 1989
Session, No. 15 at 290, 291; Sirolli, Opinion 90-006; Sharp, Opinion 90-009-R.
The governmental body with which you are deemed to have been associated
upon termination of employment with PennDOT is PennDOT in its entirety, including but
not limited to District 11-0. Therefore, for the first year following termination of your
employment with PennDOT, Section 1103(g) of the Ethics Act would apply and restrict
“representation” of a “person” before PennDOT.
Turning to your specific questions, you are advised that Section 1103(g) of the
Ethics Act would not prohibit you from accepting employment with a consulting
engineering firm. However, during the first year following termination of your
employment with PennDOT, Section 1103(g) of the Ethics Act would prohibit you from
performing any job duty(ies) that would involve prohibited representation before
PennDOT. The submitted facts do not detail the duties of your proposed employment
positions. You are advised that during the period of applicability of Section 1103(g) of
the Ethics Act, it would appear to be impossible, as a practical matter, for you to perform
inspection duties on PennDOT projects without running afoul of Section 1103(g).
Section 1103(g) of the Ethics Act would not prohibit you from performing documentation
reviews on PennDOT construction projects or working on local projects being run by a
municipality or city, subject to the condition that in so doing, you would not engage in
any activity(ies) that would constitute prohibited representation before PennDOT.
Based upon the facts that have been submitted, this Advice has addressed the
applicability of Section 1103(g) only. It is expressly assumed that there has been no
use of authority of office or employment for a private pecuniary benefit as prohibited by
Section 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and
1103(c) of the Ethics Act provide in part that no person shall offer or give to a public
official/public employee and no public official/public employee shall solicit or accept
anything of monetary value based upon the understanding that the vote, official action,
or judgment of the public official/public employee would be influenced thereby.
Reference is made to these provisions of the law not to imply that there has been or will
be any transgression thereof but merely to provide a complete response to the question
presented.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act. Specifically not addressed herein is the applicability of the Governor’s Code
of Conduct.
Conclusion:
In your former capacity as a Finals Unit Manager for the
Pennsylvania Department of Transportation (“PennDOT”), 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 your employment with PennDOT, you became
a "former public employee" subject to the restrictions of Section 1103(g) of the Ethics
Act. The former governmental body is PennDOT in its entirety, including but not limited
to Engineering District 11-0. Section 1103(g) of the Ethics Act would restrict you from
engaging in any activity(ies) that would involve prohibited representation before
McLaughlin, 12-502
January 24, 2012
Page 10
PennDOT for one year following termination of your employment with PennDOT. The
restrictions as to representation outlined above must be followed. Lastly, the propriety
of the proposed conduct has only been addressed under 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.
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