HomeMy WebLinkAbout12-004 Klovensky
OPINION OF THE COMMISSION
Before: John J. Bolger, Chair
Donald M. McCurdy
Raquel K. Bergen
Nicholas A. Colafella
Mark Volk
Mark R. Corrigan
DATE DECIDED: 9/24/12
DATE MAILED: 10/5/12
12-004
Scott W. Klovensky, MCEO
Pennsylvania State Police
3033 Old Harrisburg Road
Gettysburg, PA 17325
Dear Mr. Klovensky:
This Opinion is issued in response to the appeal of Advice of Counsel 12-554,
which was issued on August 2, 2012.
I.ISSUE:
Whether an individual employed by the Commonwealth of Pennsylvania as a Motor
Carrier Enforcement Officer with the Pennsylvania State Police under job code 70751
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 memorandum dated August 27, 2012, you appealed Advice of Counsel 12-554,
which was issued on August 2, 2012.
Your initial advisory request presented facts that were summarized in the Advice of
Counsel as follows:
Klovensky, 12-004
October 5, 2012
Page 2
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;
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;
Klovensky, 12-004
October 5, 2012
Page 3
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.
Klovensky, Advice of Counsel 12-554, at 1-2.
Advice of Counsel 12-554 determined 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 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).
Klovensky, 12-004
October 5, 2012
Page 4
The Advice specifically noted your authority to: 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; select
motor carrier vehicles for a variety of inspections and examine operator and vehicle
documents to determine compliance with safety laws; perform technical inspections of
truck and trailer safety parts and equipment and perform size and weight inspections of a
motor carrier vehicle; inspect compliance with hazardous material transportation
requirements; determine inspection violations and use discretion to determine whether a
traffic citation or written warning is issued and whether the violation is issued to the
operator or carrier; place motor carriers and operators out-of-service as prescribed by
safety laws; perform technical safety inspections of school buses; conduct new entrant
safety audits; conduct skills performance evaluations for operators with physical
impairments or individuals attempting to obtain medical certification waivers for motor
carrier operation and determine if the vehicle is equipped with the necessary
accommodations and the individual can demonstrate safe operation; and recommend
approval/disapproval of the operator’s medical certification waiver.
By memorandum dated August 27, 2012, you appealed Advice of Counsel 12-554.
Your appeal memorandum 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 70751) are incorporated herein by reference.
By letter dated August 28, 2012, you were notified of the date, time and location of
the public meeting at which your request would be considered.
At the public meeting on September 24, 2012, you appeared for the purpose of
observing the proceedings.
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
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
Klovensky, 12-004
October 5, 2012
Page 5
"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
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.
Klovensky, 12-004
October 5, 2012
Page 6
(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.
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.
Klovensky, 12-004
October 5, 2012
Page 7
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 (2010); Phillips, supra.
In applying the objective test in the instant matter, we conclude 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 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 70751--establish that as a Motor Carrier
Enforcement Officer with the Pennsylvania State Police, you have the authority, inter alia,
to do the following:
(Per Position Description)
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; and
Perform technical safety inspections of school buses;
(Per Job Classification Specifications)
Select motor carrier vehicles for inspection and examine operator and
vehicle documents to determine compliance with safety laws;
Perform technical inspections of truck and trailer safety parts and equipment
and perform size and weight inspections of a motor carrier vehicle;
Inspect compliance with hazardous material transportation requirements;
Determine inspection violations and use discretion to determine whether a
traffic citation or written warning is issued and whether the violation is issued
to the operator or carrier;
Klovensky, 12-004
October 5, 2012
Page 8
Place motor carriers and operators out-of-service as prescribed by safety
laws;
Conduct new entrant safety audits;
Conduct skills performance evaluations for operators with physical
impairments or individuals attempting to obtain medical certification waivers
for motor carrier operation and determine if the vehicle is equipped with the
necessary accommodations and the individual can demonstrate safe
operation; and
Recommend approval/disapproval of the operator’s medical certification
waiver.
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) 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; (2) perform technical safety
inspections of school buses; (3) select motor carrier vehicles for inspection and examine
operator and vehicle documents to determine compliance with safety laws; (4) perform
technical inspections of truck and trailer safety parts and equipment and perform size and
weight inspections of a motor carrier vehicle; (5) inspect compliance with hazardous
material transportation requirements; (6) determine inspection violations and use
discretion to determine whether a traffic citation or written warning is issued and whether
the violation is issued to the operator or carrier; and (7) conduct new entrant safety audits,
would bring you squarely within the Ethics Act’s definition of “public employee.”
Additionally, your authority to: (1) place motor carriers and operators out-of-service
as prescribed by safety laws; (2) conduct skills performance evaluations for operators with
physical impairments or individuals attempting to obtain medical certification waivers for
motor carrier operation and determine if the vehicle is equipped with the necessary
accommodations and the individual can demonstrate safe operation; and (3) recommend
approval/disapproval of the operator’s medical certification waiver, would provide
additional support for the conclusion that you are a “public employee” subject to the
provisions of the Ethics Act.
Having determined that 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 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 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
12-554.
Lastly, this matter has only been addressed under the Ethics Act.
IV.CONCLUSION:
Klovensky, 12-004
October 5, 2012
Page 9
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 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
12-554 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.
By the Commission,
John J. Bolger
Chair