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HomeMy WebLinkAbout12-554 Klovensky ADVICE OF COUNSEL August 2, 2012 Scott W. Klovensky, MCEO Pennsylvania State Police 3033 Old Harrisburg Road Gettysburg, PA 17325 12-554 Dear Mr. Klovensky: This responds to your memorandum dated June 20, 2012, received June 26, 2012, which will be treated as a request for advice from the Pennsylvania State Ethics Commission. Issue: Whether, as a Motor Carrier Enforcement Officer with the Pennsylvania State Police under job code 70751, you would be considered a “public employee” subject to the Public Official and Employee Ethics Act (the “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 a Motor Carrier Enforcement Officer with the Pennsylvania State Police under job code 70751, 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 (“SFIs”). You have submitted a copy of your official Commonwealth position description, which document is incorporated herein by reference. A copy of the job classification specifications for the position of Motor Carrier Enforcement Officer, job code 70751, has been obtained and is also incorporated herein by reference. Per your official Commonwealth position description, you perform technical safety, size and weight, and hazardous material inspections of motor carrier vehicles and operators to determine compliance with and enforce state and federal motor carrier safety laws. Your job duties and responsibilities include:  Selecting motor carrier vehicles for a variety of inspections, interviewing operators, and reviewing vehicle and operator documents;  Performing inspections of truck and trailer safety parts and equipment;  Consulting and interpreting laws, issuing traffic citations and warnings, and notifying operators of required corrective action;  Performing technical safety inspections of school buses and completing required reports to include documentation of violations;  Operating and assuring proper condition of equipment and van; Klovensky, 12-554 August 2, 2012 Page 2  Ensuring scales are inspected/certified in a timely manner; and  Performing weighing of all types of vehicles for weight violations. Position Description, at 1. Per the job classification specifications under job code 70751, a Motor Carrier Enforcement Officer:  Determines safe location for monitoring traffic and selects motor carrier vehicles for inspection;  Informs the operator about the purpose for the stop, interviews the operator, and examines operator and vehicle documents to determine compliance with safety laws;  Performs technical inspections of truck and trailer safety parts and equipment;  Performs size and weight inspections by measuring the height, width, length, and weight of a motor carrier vehicle;  Directs motor carrier movement to and from scales and carries, sets up, verifies the accuracy of, and performs minor adjustments to weighing equipment;  Inspects compliance with hazardous material transportation requirements by examining shipping documents, vehicle placards, CDL endorsements, and material security, packaging, separation, and labeling;  Records inspection data by preparing reports, performing mathematical calculations, consulting and interpreting laws, and preparing citations/warnings;  Determines inspection violations, using discretion to determine whether a traffic citation or written warning is issued and whether the violation is issued to the operator or carrier;  Informs operator of violations and the mandatory corrective actions, places motor carriers and operators out-of-service as prescribed by safety laws and maintains a professional demeanor in potentially hostile situations;  Conducts new entrant safety audits by reviewing safety management procedures, operational practices, and a sample of required records;  Informs, upon completion of new entrant safety audits, the motor carrier of the results and mandatory corrective actions and prepares federally- mandated audit reports;  Conducts skills performance evaluations for operators with physical impairments or individuals attempting to obtain medical certification waivers for motor carrier operation and determines if the vehicle is equipped with the necessary accommodations and the individual can demonstrate safe operation; and  Recommends approval/disapproval of the operator’s medical certification waiver. Job Classification Specifications, at 1-2. 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. Klovensky, 12-554 August 2, 2012 Page 3 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: (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. Klovensky, 12-554 August 2, 2012 Page 4 (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, 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 Klovensky, 12-554 August 2, 2012 Page 5 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), amended by, 2010 Pa. Commw. LEXIS 8 (Pa. Cmwlth. January 5, 2010), allocatur denied, 607 Pa. 708, 4 A.3d 1056 (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 a Motor Carrier Enforcement Officer with the Pennsylvania State Police under job code 70751, you are a "public employee" subject to the Ethics Act and the Regulations of the Commission, and in particular, the requirements for filing SFIs pursuant to the Ethics Act. As a Motor Carrier Enforcement Officer under job code 70751, 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 the official Position Description and the job classification specifications under job code 70751 would be sufficient to establish your status as a “public employee” subject to the Ethics Act:  Performing technical safety, size and weight, and hazardous material inspections of motor carrier vehicles and operators to determine compliance with and enforce state and federal motor carrier safety laws;  Selecting motor carrier vehicles for a variety of inspections and examining operator and vehicle documents to determine compliance with safety laws;  Performing technical inspections of truck and trailer safety parts and equipment and performing size and weight inspections of a motor carrier vehicle;  Inspecting compliance with hazardous material transportation requirements;  Determining inspection violations and using discretion to determine whether a traffic citation or written warning is issued and whether the violation is issued to the operator or carrier;  Placing motor carriers and operators out-of-service as prescribed by safety laws;  Performing technical safety inspections of school buses;  Conducting new entrant safety audits; Klovensky, 12-554 August 2, 2012 Page 6  Conducting skills performance evaluations for operators with physical impairments or individuals attempting to obtain medical certification waivers for motor carrier operation and determining if the vehicle is equipped with the necessary accommodations and the individual can demonstrate safe operation; and  Recommending approval/disapproval of the operator’s medical certification waiver. 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 a Motor Carrier Enforcement Officer with the Pennsylvania State Police under job code 70751, you are 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 SFIs pursuant to the Ethics Act. Cf., Master, Advice 90-555. Conclusion: As a Motor Carrier Enforcement Officer with the Pennsylvania State Police under job code 70751, 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 Pennsylvania 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