HomeMy WebLinkAbout16-545 Lozano
ADVICE OF COUNSEL
July 22, 2016
Heidi Lozano
715 Jordan Avenue
Montoursville, PA 17754
16-545
Dear Ms. Lozano:
This responds to your letter dated May 17, 2016, styled as a Financial Interest
Disclosure appeal, which will be treated as a request for an advisory from the
Pennsylvania State Ethics Commission (“Commission”).
Issue:
Whether, as a Highway Design Supervisor with the Pennsylvania
Department of Transportation (“PennDOT”) under job code 10330, 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 Highway
Design Supervisor with PennDOT under job code 10330, 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. Additionally, a copy of the job
classification specifications for the position of Highway Design Supervisor, job code
10330, has been submitted and is incorporated herein by reference.
Per your official Commonwealth position description, you function as a Roadway
Design Squad Leader, and you supervise the work of highway designers, technicians,
draftsman designers, draftsmen, and engineers in the design of highway projects. Your
job duties and responsibilities include:
Ensuring that all Joint Permit and Individual NPDES Permit applications
are administratively complete and submitted seven months before the
scheduled letting date;
Controlling costs within programmed amounts on all projects;
Including specific training objectives on all directly assigned employees’
EPRs;
Training draftsmen, technicians, and lower level designers in highway
design skills, plans presentation, and PennDOT policy and procedures;
Lozano, 16-545
July 22, 2016
Page 2
Maintaining Open Plan or ASTA schedules as the lead project manager
on projects;
Attending Scoping Field View (or sending a representative) as the lead
project manager on projects and providing a Scoping Form with project
information and proposed design criteria;
Holding a formal constructability review on all projects at the
approximately 50% and 80% plan complete stage;
Monitoring project budgets and providing required changes for all projects
as necessary to the District Plans Engineer;
Coordinating and monitoring design development and costs and working
with other units to ensure that project development proceeds smoothly, all
appropriate factors are included, and scheduled letting dates are met;
Preparing all submissions to the central office, including federal and state
documentation, and obtaining project-related approvals;
Preparing contract special provisions;
Supervising the work of highway designers, technicians, draftsman
designers, draftsmen, and engineers in the design of highway projects;
Planning, directing and exercising responsibility for all squad activities
including performing basic highway design studies, preliminary designs on
complete projects, and preparing complete final design, right-of-way, and
construction plans for highway betterment, improvement, and new
construction projects ranging from the simplest to the very complex;
Acting as project manager for assigned projects and ensuring that projects
are developed on the established schedule and that ECMS is utilized
during the design process;
Responding to inquiries and complaints and resolving highway design
related problems that develop during construction;
Interpreting and verifying that designs conform to PennDOT policy, design
guidelines, standards, specifications, and Federal Highway Administration
requirements; and
Conducting and participating in field views as necessary to evaluate
existing field conditions and terrain and their potential impacts and effects
on the highway design project.
Position Description, at 1-3.
Per the job classification specifications under job code 10330, a Highway Design
Supervisor performs professional supervisory work in designing highway projects, with
specific examples of such work including the following:
Supervises the work of Highway Designers in designing less complex
highway projects or phases of complex projects;
Supervises employees engaged in determining quantities, costs, and
placement of materials on proposed projects;
Trains and supervises Highway Design Technicians and Highway
Designers;
Supervises an engineering district’s project proposal and estimate
preparation function to include special provisions and indicating
specifications, quantities, and descriptive material as indicated in related
specifications;
Reviews complete sets of design plans prepared by consultants for
technical standards and adherence to applicable specifications;
Initiates corrective disciplinary action for minor misconduct by employees
and recommends major corrective disciplinary actions or dismissals;
Interprets contractual and administrative rights and obligations for
employees and modifies work environment or process to conform to
changing conditions;
Lozano, 16-545
July 22, 2016
Page 3
Receives grievances and complaints, conducts initial investigation into
causes and conditions, discusses with employee, and resolves or
recommends resolution of grievance or complaint;
Prepares employee performance evaluation reports; and
Approves leave, schedules personnel, and authorizes or assigns overtime.
Job Classification Specifications, at 1-2.
You assert that you are not responsible for taking or recommending official action
of a non-ministerial nature that would bring you within the definition of “public employee”
as set forth in 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.
Lozano, 16-545
July 22, 2016
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.
Lozano, 16-545
July 22, 2016
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 (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
Lozano, 16-545
July 22, 2016
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 capacity as a Highway Design Supervisor with PennDOT under job code 10330,
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.
Cf., Garwood, Advice 01-552; Glitz, Advice 99-584; Nash, Advice 98-632; Krause,
Advice 98-572; Pryor, Advice 98-501; Berkheimer, Advice 97-568.
It is clear that as a Highway Design Supervisor under job code 10330, you have
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. Specifically, the following duties and authority set forth in the official
Position Description and the job classification specifications under job code 10330 would
be sufficient to establish your status as a “public employee” subject to the Ethics Act:
Controlling costs within programmed amounts on all projects;
Acting as the project manager on projects;
Monitoring project budgets and providing required changes for all projects
as necessary to the District Plans Engineer;
Coordinating and monitoring design development and costs;
Preparing contract special provisions;
Supervising the work of highway designers, technicians, draftsman
designers, draftsmen, and engineers in the design of highway projects;
Planning, directing and exercising responsibility for all squad activities
including performing basic highway design studies, preliminary designs on
complete projects, and preparing complete final design, right-of-way, and
construction plans for highway betterment, improvement, and new
construction projects ranging from the simplest to the very complex;
Resolving highway design related problems that develop during
construction;
Interpreting and verifying that designs conform to PennDOT policy, design
guidelines, standards, specifications, and Federal Highway Administration
requirements;
Supervising the work of Highway Designers in designing less complex
highway projects or phases of complex projects;
Supervising employees engaged in determining quantities, costs, and
placement of materials on proposed projects;
Supervising an engineering district’s project proposal and estimate
preparation function;
Reviewing complete sets of design plans prepared by consultants for
technical standards and adherence to applicable specifications;
Initiating corrective disciplinary action for minor misconduct by employees
and recommending major corrective disciplinary actions or dismissals;
Interpreting contractual and administrative rights and obligations for
employees;
Receiving grievances and complaints, conducting initial investigation into
causes and conditions, and resolving or recommending resolution of
grievance or complaint;
Preparing employee performance evaluation reports; and
Approving leave, scheduling personnel, and authorizing or assigning
overtime.
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).
Lozano, 16-545
July 22, 2016
Page 7
Therefore, you are advised that as a Highway Design Supervisor with PennDOT
under job code 10330, 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.
Conclusion:
As a Highway Design Supervisor with the Pennsylvania Department
of Transportation under job code 10330, 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