Loading...
HomeMy WebLinkAbout15-519 Scalise ADVICE OF COUNSEL March 16, 2015 Joseph Scalise 118 Locust Street Carnegie, PA 15106 15-519 Dear Mr. Scalise: This responds to your undated letter postmarked February 10, 2015, received February 12, 2015, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether, as a Traffic Control Specialist 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., such that upon termination of your employment with PennDOT, the restrictions of Section 1103(g) of the Ethics Act would be applicable to you. Facts: You request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You have been employed as a Traffic Control Specialist with PennDOT in District 11-0. 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 Traffic Control Specialist (job code 10859) has been obtained and is also incorporated herein by reference. Per your official Commonwealth position description, your duties and responsibilities have included the following:  Ensuring that work zones are in compliance with traffic control plans and PennDOT regulations by performing work zone traffic control reviews on PennDOT construction, maintenance and permit work zones in Allegheny, Beaver and Lawrence Counties;  Conducting nighttime work zone traffic control reviews for long term lane closures on all freeways at the start of each new phase;  Providing work zone traffic control training for PennDOT personnel; Scalise, 15-519 March 16, 2015 Page 2  Preparing and/or reviewing the development of traffic control plans and specifications for PennDOT construction and maintenance projects to assure compliance with regulations and traffic control principles;  Promoting safety by implementing new ideas concerning work zone traffic control during the design phase of projects for maintenance and protection of traffic during construction;  Attending pre-bid and job conferences for all contract construction projects to explain and answer questions regarding traffic control plans and contract provisions for traffic control;  Reviewing contractor’s submissions for revisions to traffic control plans;  Providing technical assistance to the District Construction and Maintenance Units for field implementation of traffic control plans and PennDOT regulations in work zone traffic control;  Coordinating and reviewing the development of traffic control plans for construction projects involving locally owned highways to assure compliance with regulations and traffic control principles when State or federal highway funds are involved; and  Reviewing road closing requests from local municipalities for the purpose of conducting special events and activities on State highways, and assuring that regulations regarding temporary road closures are followed. Position Description, at 1-2. Per the job classification specifications under job code 10859, a Traffic Control Specialist:  Prepares and/or reviews special provisions for maintenance and protection of traffic contracts for highway and bridge projects;  Performs a technical review of high traffic volume highway occupancy permit applications;  Reviews data, prepares justifications, and develops traffic control signal systems for multiple traffic problem areas;  Performs a statewide inspection of maintenance and protection of traffic sites for adherence to departmental regulations;  Reviews and recommends improvements for existing signal systems in high traffic volume areas;  Writes specifications for the necessary equipment and materials to complete signal installations according to State standards; and  Prepares initial alternatives to resolve hazardous accident areas and designs the safety improvement project proposals for high traffic volume hazardous locations. Job Classification Specifications, Job Code 10859, at 1. Scalise, 15-519 March 16, 2015 Page 3 You state that as a PennDOT employee, you were not responsible for allocating funds. You further state that you were not involved in the selection of consultants for PennDOT projects and that you were not a supervisor or manager in any capacity. You ask whether, as a Traffic Control Specialist for PennDOT, you would be considered a “public employee” as that term is defined in the Ethic Act, such that upon termination of employment with PennDOT, you would be subject to the post- employment restrictions of Section 1103(g) of the Ethics Act. 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. 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. Scalise, 15-519 March 16, 2015 Page 4 (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. (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. Scalise, 15-519 March 16, 2015 Page 5 (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. 65 Pa.C.S. § 1102. 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), amended by, 2010 Pa. Commw. LEXIS 8 (Pa. Cmwlth. January 5, 2010), allocatur denied, 607 Pa. 708, 4 A.3d 1056 (Pa. 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 Scalise, 15-519 March 16, 2015 Page 6 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 former capacity as a Traffic Control Specialist for PennDOT, you would be considered a “public employee” subject to the Ethics Act and the Regulations of the State Ethics Commission. Cf., Moskel, Advice 05-571; Robbins, Advice 04-590; Shirley, Advice 99-593; Orlando, Advice 97-547; Marino, Advice 96-553. It is clear that as a Traffic Control Specialist for PennDOT under job code 10859, you had 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 10859 would be sufficient to establish your status as a “public employee” subject to the Ethics Act:  Ensuring that work zones are in compliance with traffic control plans and PennDOT regulations by performing work zone traffic control reviews;  Preparing and/or reviewing the development of traffic control plans and specifications for PennDOT construction and maintenance projects to assure compliance with regulations and traffic control principles;  Reviewing contractor’s submissions for revisions to traffic control plans;  Coordinating and reviewing the development of traffic control plans for construction projects involving locally owned highways to assure compliance with regulations and traffic control principles when State or federal highway funds are involved;  Reviewing road closing requests from local municipalities for the purpose of conducting special events and activities on State highways, and assuring that regulations regarding temporary road closures are followed;  Preparing and/or reviewing special provisions for maintenance and protection of traffic contracts for highway and bridge projects;  Performing a technical review of high traffic volume highway occupancy permit applications;  Performing a statewide inspection of maintenance and protection of traffic sites for adherence to departmental regulations;  Writing specifications for the necessary equipment and materials to complete signal installations according to State standards; and  Preparing initial alternatives to resolve hazardous accident areas and designing the safety improvement project proposals for high traffic volume hazardous locations. The foregoing duties/authority would also meet the criteria for determining 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). Scalise, 15-519 March 16, 2015 Page 7 Consequently, upon termination of employment with PennDOT, you would become 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: § 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 official/public employee himself, Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur, Opinion 95-007. The term “represent” 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. Scalise, 15-519 March 16, 2015 Page 8 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 a 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 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 would be deemed to have been associated upon termination of your employment with PennDOT would be 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. 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. Conclusion: As a Traffic Control Specialist for the Pennsylvania Department of Transportation (“PennDOT”) under job code 10859, 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 would become a "former public employee" subject to the restrictions of Section 1103(g) of the Ethics Act. The former governmental body would be PennDOT in its entirety, including Scalise, 15-519 March 16, 2015 Page 9 but not limited to District 11-0. 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. 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