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HomeMy WebLinkAbout16-006 Lozanof' u } �A STATE ETHICS COMMISSION 309 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Melanie DePalma DATE DECIDED: 10120/16 DATE MAILED: 10/26/16 16 -006 To the Requester /Appellant: Heidi Lozano, Highway Design Supervisor Pennsylvania Department of Transportation Dear Ms. Lozano: This Opinion is issued in response to the appeal of Advice of Counsel 16 -545, which was issued on July 22, 2016. I. ISSUE: Whether a Highway Design Supervisor with the Pennsylvania Department of Transportation ( "PennDOT ") under job code 10330 would be considered a "public employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. 1 110 yet seq. , and the Regulations of the State Ethics Commission, 51 Pa. Code 11.1 et seg., and would therefore be subject to the requirements for filing Statements of FinanciaC Interests. II. FACTUAL BASIS FOR DETERMINATION: By letter dated August 22, 2016, you appealed Advice of Counsel 16 -545, which was issued on July 22, 2016. Your initial advisory request presented facts that were summarized in the Advice of Counsel as follows: 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 P.O. BOX 11470, HARRISBURG, PA 17108-1470 • 717- 783 -1610 • 1 -800- 932 -0936 • www.ethics.state.pa.us Lozano 16 -006 co3er 26, 2016 Page 2 Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. You specifical y� 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 �esign b classification specifications for the position of Highway 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 trainingg 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; • 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 l projects as necessary to the District Plans Engineer; • Coordinating and monitoring design development and costs and working with other units to ensure that ppra'ect development proceeds smoothly, all appropriate fac�ors 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, Lozano, 16 -006 D tamer 26, 2016 Page 3 improvement, and new construction projects ranging from the simplest to the very complex; • Acting as protect 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; • 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. Lozano, 16 -006 comber 26, 2016 Page 4 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. Lozano, Advice of Counsel 16545, at 1 -3. Advice of Counsel 16 -545 determined 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 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 subparagraph (5) within the statutory definition of "public employee" (pertaining to "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 Re ulations for determining, status as a public em loyee, specifically at 51 Pa. Code § 1.1, "public employee,' subparagraphs (i) and tii). The Advice specifically noted your authority to: control costs within programmed amounts on all projects; act as the project manager on projects; monitor project budgets and provide required changes for all projects as necessary to the District Plans Engineer; coordinate and monitor design development and costs; prepare contract special provisions; supervise the work of highway designers, technicians, draftsman designers, draftsmen, and engineers in the design of highway projects; plan, direct and exercise responsibility for a 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; resolve highway design related problems that develop during construction; interpret and verify that designs conform to PennDOT policy, design guidelines, standards, specifications, and f=ederal Highway Administration requirements; supervise the work of Highway Designers in designing less complex highway projects or phases of complex projects; supervise employees engaged in determining quantities, costs, and placement of materials on proposed projects; supervise an engineenng district's project proposal and estimate preparation function; review complete sets of design plans prepared by consultants for technical standards and adherence to applicable specifications; initiate corrective disciplinary action for minor misconduct by employees and recommend major corrective disciplinary actions or dismissals; interpret contractual and administrative rights and obligations for employees; receive grievances and complaints, conduct initial investigation into causes and conditions, and resolve or recommend resolution of grievance or complaint; prepare employee performance evaluation reports; and approve leave, schedule personnel, and authorize or assign overtime. By letter dated August 22, 2016, you appealed Advice of Counsel 16 -545. In your appeal letter, you contend that contrary to the issue as stated by the Advice of Counsel, your initial advisory request did not seek a determination as to whether, as a Highway Design Supervisor with PennDOT under job code 10330, you are a "public employee' subject to the Ethics Act. You contend that your initial advisory request instead sought to dispute claims made by PennDOT's Bureau of Human Resources as to the responsibilities of your position with PennDOT. The position description and the job classification specifications for the aforesaid position (job code 10330) are incorporated herein by reference. By letter dated September 19, 2016, you were notified of the date, time and location of the public meeting at which your request would be considered. Lozano, 16 -006 ci toFer 26, 2016 Page 5 III. DISCUSSION: It is initially noted that pursuant to Sections 1107 (10) 0) 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. We note that in considering the merits of your appeal, the only question that may be addressed b this Commission is whether you are a 'public dmployee" as that term is defined by the Ethics Act, and therefore are required to file Statements of Financial Interests pursuant to the Ethics Act. Our review of this matter is de novo (Clarke, Opinion 04 -012; S ear, 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'Arci rete v. D'Arci rete, 323 Pa. Super. 430, 470 A.2d 995 (1984) (citations omitted). �See also, ayes v. Donohue Desiciner Kitchen Inc., 2003 Pa. Super. 84, 818 A.2d 128 (2003 }}; Commonwealth v. Krut, 311 Pa. Sup er. 64, 457 A.2d 114 (1983); In re Audit of School CiOtrict, 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. Magnus v. State Ethics Commission, 518 Pa. 592, 544 A.2d 1324 (1988). 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 nonministeriai 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: Lozano, 16 -006 October 26, 2016 Page 6 (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. The individual is the supervisor of a highest level field o ice. (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. (1) 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 -006 October 26, 2016 Page 7 (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. 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 classificationspecifications, 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. Cmwith. 1984); Eiben, Opinion 04 --002; ienvol , pinion 04 -401; hearer, 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, Qua lia v. State Ethics Commission, 986 A.2d 974 (Pa. Cmwlth. 2010), amended by, 2010 Pa. Gommw. LEXIS 8 Pa. Cmwlth. January 5, 2010), allocatur denied, 607 Pa. 708, 4 A.3d 1056 (2010); Phi, supra. In applying the objective test in the instant matter, we conclude 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 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. Likewise, the regulatory criteria for determining status as a public employee, asset 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; and individuals who make final Lozano, 16 -006 cto er 26, 2016 Page 8 technical recommendations. Reese /Gilliland, Opinion 05 -005. The objective sources defining your position - -the official osition description and the job classification specifications under job code 10330-- establU that as a Highway Design Supervisor with PennDOT, you have the authority, inter alia, to do the following: (Per Position Description) Control costs within programmed amounts on all projects; Monitor project budgets and provide required changes for all projects as necessary to the District Plans Engineer; Coordinate and monitor design development and costs; • Prepare contract special provisions; Supervise the work of highway designers, technicians, draftsman designers, draftsmen, and engineers in the design of highway projects; • Plan, direct and exercise 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; • Act as the project manager on projects; • Resolve highway design related problems that develop during construction; and • Interpret and verify that designs conform to PennDOT policy, design guidelines, standards, specifications, and Federal Highway Administration requirements. (Per Job Classification Specifications) • Supervise the work of Highway Designers in designing less complex highway projects or phases of complex projects; • Supervise employees engaged in determining quantities, costs, and placement of materials on proposed projects; • Supervise an engineering district's project proposal and estimate preparation function; • Review complete sets of design plans prepared by consultants for technical standards and adherence to applicable specifications; • Initiate corrective disciplinary action for minor misconduct by employees and recommend major corrective disciplinary actions or dismissals; • Interpret contractual and administrative rights and obligationsforemployees; • Receive grievances and complaints, conduct initial investigation into causes and conditions, and resolve or recommend resolution of grievance or complaint; Lozano, 16 -006 c��er 26, 2016 Page 9 Prepare employee performance evaluation reports; and Approve leave, schedule personnel, and authorize or assign overtime. Based upon the above, we find that your authority includes responsibility for taking or recommending off icial action of a nonministerial nature with regard to category (5) of the � Ethics Act's definition of public employee, specifically, any other activity where the official action has an economic impact of greaterthan a de minimis nature on the interests of an person." 65 Pa.C.S. § 1102. In your position, you have the authority, inter alia, to: (1� control costs within programmed amounts on all projects; (2) monitor protect budgets and provide required changes for all projects as necessary to the District Plans Engineer; (3) coordinate and monitor design development and costs; (4) prepare contract special provisions; (5) act as the project manager on protects; (6) resolve highway. design related problems that develop during construction; (7) supervise others; (8) initiate corrective disciplinary action for minor misconduct by employees and recommend major corrective disciplinary actions or dismissals and (9) approve leave, schedule personnel, and authorize or assign overtime. Such authority, as well as the other authority delineated in the bullet points above, would bring you squarely within the Ethics Act's definition of "public employee." Having determined that as a Highway .Design Supervisor with PennDOT under job code 10330, you are a public employee suhtect 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 16 -545. Lastly, this matter has only been addressed under the Ethics Act. IV. CONCLUSION: In your capacity as a Highway Design Supervisorwith the Pennsylvania Department of Transportation under jjob code 10330, you are a "public empIo ee" 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 sec.. You are required to file Statements of Financial Interests pursuant to the Ethics Ac. The appeal is denied. Advice of Counsel 16 -545 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, i N is o s +oafella Chair