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HomeMy WebLinkAbout13-511 Snyder ADVICE OF COUNSEL February 28, 2013 Josh Snyder Indian Creek Valley Water Authority 2019 Indian Head Road P.O. Box 486 Indian Head, PA 15446-0486 13-511 Dear Mr. Snyder: This responds to your letter dated January 2, 2013 (received January 9, 2013), by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether, in your former capacity as a Highway Drafter 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 which may be fairly summarized as follows. On November 9, 2012, you separated from Commonwealth employment as a Highway Drafter with PennDOT in Engineering District 12-0 (“District 12-0”) and accepted employment with Indian Creek Valley Water Authority (“Authority”) as the Water Production and Distribution Superintendent. You have submitted a copy of your official PennDOT position description, which document is incorporated herein by reference. A copy of the job classification specifications for the position of Highway Drafter (job code 10300) has been obtained and is also incorporated herein by reference. Per your official PennDOT position description, your duties and responsibilities included the following:  Coordinating and directing all activities associated with cost estimating;  Preparing and/or administering an Engineering District Estimate function including preliminary and final estimates;  Preparing and distributing comparison of actual contractor bids versus construction cost estimate;  Preparing and submitting bid justification for any and all items requested by central office; Snyder, 13-511 February 28, 2013 Page 2  Assisting Contract Management Coordinator with request for proposal addendums when required; and  Developing highway plans for construction of County Surface Improvement Projects. Position Description, at 1-2. Per the job classification specifications under job code 10300, a Highway Drafter:  Performs technical duties which follow prescribed methods and procedures and involve the application of basic technical skills and techniques for the completion of a wide variety of drafting and detailing assignments with technical and professional guidance from higher level technical employees;  Assists in the preparation of highway plans from field survey notes;  Performs all drafting and detailing work associated with the development and preparation of highway plans from preliminary sketches to final detailed working plans;  Prepares portions of plans for less complex highway projects such as resurfacing, restoration and rehabilitation, lane widening and safety and intersection improvement projects;  Performs and checks less complex computations;  Prepares a variety of maps of the entire state with guidance from a higher level technician or professional;  Prepares all plans from preliminary sketches to final working plans for highway construction with guidance from a higher level technician or professional; and  Applies and interprets survey notes, aerial photographs, and engineering data. Job Classification Specifications, Job Code 10300, at 1-2. You state that the Authority currently has two construction projects which involve utility coordination. You state that the nature of your coordination at this point is to meet with District 12-0 utility and/or construction staff to ensure that the obligations of the Authority are met and remain on schedule and to discuss any delays or issues which may arise. You seek guidance as to whether Section 1103(g) of the Ethics Act would impose any prohibitions or restrictions upon you in your position as the Water Production and Distribution Superintendent for the Authority, and if so, whether you could obtain a waiver of such restrictions. 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 Highway Drafter 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 Snyder, 13-511 February 28, 2013 Page 3 "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. (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. Snyder, 13-511 February 28, 2013 Page 4 (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 relevant to your inquiry and 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 Snyder, 13-511 February 28, 2013 Page 5 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. In applying the definition of "public employee" and the related regulatory criteria to the submitted facts as to the duties of your former position, the necessary conclusion is that in your former capacity as a Highway Drafter with PennDOT, you would not be considered a "public employee" as that term is defined in the Ethics Act. Cf., Seiler, Advice 96-540. Based upon an objective review of the official position description and the job classification specifications, you were not responsible for taking or recommending official action of a non-ministerial nature with regard to any of the five categories set forth in the Ethics Act’s definition of the term “public employee.” The post-employment restrictions of Section 1103(g) of the Ethics Act only apply to former public officials/public employees: § 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). Because the duties and responsibilities of your former position would not bring you within the definition of “public employee” as set forth in the Ethics Act, Section 1103(g) of the Ethics Act would not apply to restrict you now. The only provision of the Ethics Act that applies to you is Section 1103(b), which applies to everyone. For your information, 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 anything of monetary value 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; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Governor’s Code of Conduct. Conclusion: Based upon the submitted facts, in your former capacity as a Highway Drafter with the Pennsylvania Department of Transportation (“PennDOT”) under job code 10300, you would not be considered a “public employee” as that term is defined by the Public Official and Employee Ethics Act ("Ethics Act”), 65 Pa.C.S. § 1101 et seq. Consequently, upon termination of your employment with PennDOT, Section Snyder, 13-511 February 28, 2013 Page 6 1103(g) of the Ethics Act, which imposes post-employment restrictions upon former public officials/public employees, did not become applicable to you. Section 1103(b) of the Ethics Act applies to everyone. 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