HomeMy WebLinkAbout84-572 Keener-FarleyLawrence E. Keener - Farley, Esquire
100 North 32 Street
Camp Hill, PA 17011
Mailing Address.
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
June 8, 1984
ADVICE OF COUNSEL
84 -572
RE: Legal Assistant II, Public Utility Commission, Public Employee
Dear Mr. Keener - Farley:
This responds to your letter of March 4, 1984, in which you requested
Advice from the State Ethics Commission.
Issue: You ask, whether, in your capacity as a Legal Assistant II, employed
by the Pennsylvania Public Utility Commission in the Bureau of Safety and
Compliance, you are to be considered a "public employee" within the definition
of Act 170 and therefore, required to file a Statement of Financial Interests.
Facts: Initially, we should note that response to another request which you
had presented, issued an Opinion on February 24, 1984, filed at No. 84 -005 we
have reviewed other questions of the propriety of certain activities you
wished to have us review. In Opinion No. 84 -005 we did not assume that you
were contesting, in the context of that request, your inclusion within the
category of "public employee" and for purposes of our response in Opinion
84 -005, we had assumed that you would be considered a "public employee" in
your capacity as a Legal Assistant II with the Public Utility Commission.
Now, however, you have asked us to analyze this assumption and to reach a
conclusion regarding this matter. While Opinion No. 84 -005 contains some
detail regarding your duties and responsibilities in your capacity as a Legal
Assistant II, we will not simply adopt these by reference, but will refer to
your letter of March 22, 1984, and the job description which you provided
dated February 5, 1984, for purposes of this current response.
These documents indicate, as was stated above, that you are currently
classified as a Legal Assistant II with the Public Utility Commission (PUC)
serving within the Technical Review Division of the Bureau of Safety and
Compliance, hereinafter, the Bureau. In this capacity, as set forth in the
job description dated February 5, 1984, your duties and responsibilities
include the following:
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Lawrence E. Keener - Farley, Esquire
June 8, 1984
Page 2
1. Receiving road checks written by PUC enforcement officers and logging
these checks in on a personal log.
2. Determining the identity of the carrier responsible for a particular
movement including consideration of vehicle marking, leasing, ownership,
shipping documents, driver statements, PUC enforcement officer's reports,
etc.
3. Determining whether movement was within the scope of a common
carrier's certificate, contract carrier's permit, or broker's license. This
analysis includes consideration of the origin, destination, co- signer,
co- signee, commodity, vehicle type, highway routes used, special restrictions,
etc.
4. Determining whether the carrier complied with PUC regulations
primarily 52 Pa. Code Chapters 29, 31, 37, and 39.
5. Determining whether movement is permitted by statutory exemptions.
6. Researching roadchecks that do not indicate "clear violations ". This
process includes review of the carrier's file (especially testimony supporting
the grant or limitations on the certificate); working with the PUC enforcement
officers to obtain answers to specific written questions or to obtain
additional investigative information from the field; researching case law;
conferring with the administrative supervisor or assistant counsel; consulting
with other PUC Bureaus (especially concerning applications, tariffs,
insurance, etc.); and contacting other state and federal agencies (especially
concerning corporate status, school bus contracts, vehicle and driver
registration, interstate operating authority, etc.).
7. Preparing road checks with alleged violations for review by
administrative supervisors. This process includes writing a brief description
of the violation and citing the appropriate section of the law, obtaining
verification of vehicle registration from the Department of Transportation,
and researching the carrier's violation history. In this regard your job
description indicates that you are responsible for "recommend(ing) action as
follows: Rule to Show Cause for repeated major violations; Complaint upon
Commission motion for major violations and repeated minor violations; Letter
of Warning for minor violations."
8. Reviewing conclusions concerning alleged violations and recommending
action with the administrative supervisor. After this process you "follow
Administrative Supervisor's orders for disposition of Road Checks (prosecute,
investigate further, or file)."
Lawrence E. Keener - Farley, Esquire
June 8, 1984
Page 3
9. Reviewing informal complaints submitted to the PUC by the general
public and those referred by other state and federal agencies. In this regard
the analysis of these informal complaints follows essentially the same process
as is undertaken for the "road checks" discussed above in items 1 -8.
10. Preparing taxi -cab reports. This process involves receiving
Philadelphia taxi -cab quarterly log reports, determining monthly totals for
each report, randomly selecting and verifying the addition on these reports,
calculating the percentage of "zone compliance" for each month and preparing a
statistical analysis of compliance for all reporting taxi -cabs, showing the
number and percentage of trips within assigned zones.
We are also cognizant of and have reviewed in the context of providing
this response, your letter of March 22, 1984. That letter and the information
contained therein is incorporated herein by reference. Likewise, we note that
the PUC has provided an "Answer to Petitioner's Request for Advice" which is
made part of our file in this proceeding. We note however, that the Ethics
Act requires us to provide a response to you at your request and that such a
response is to be based primarily upon the information which you have provided
in addition to the objective information, such as your job descriptions,
classifications specifications and correspondence which you have submitted.
Finally, we also note for the record that we have received a "Petition to
Intervene" filed on behalf of the Public Utility Commission with respect to
your request. This Petition to Intervene was subject to my communication
dated April 17, 1984, to Deputy Chief Counsel, Daniel Delaney, of the PUC.
These petitions and this response are incorporated herein by reference as
well. However, as my communication of April 17, 1984 indicated, at the
present time, because this request would be subject to an Advice of Counsel,
unless and until this matter came before the entire State Ethics Commission
for review, it is either inappropriate or premature to consider the PUC's
Petition to Intervene and /or Answer to your request.
Discussion: As set forth above, the question to be answered here is clear.
Specifically, are you, in your capacity as a Legal Assistant II with the PUC
to be considered a "public employee" as those terms are defined in the State
Ethics Act and the regulations of the State Ethics Commission as follows:
Section 2. Definitions.
"Public employee." Any individual employed by the
Commonwealth or a political subdivision who is responsible
for taking or recommending official action of a
nonmi ni steri al nature with regard to:
(1) contracting or procurement;
(2) administering or monitoring grants or
subsidies;
Lawrence E. Keener - Farley, Esquire
June 8, 1984
Page 4
(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
minimus nature on the interests of any person.
"Public employee" shall not include individuals who are
employed by the State or any political subdivision thereof
in teaching as distinguished from administrative duties.
65 P.S. 402.
Section 1.1. Definitions.
Public employee - --
(i) The term includes any individual:
(A) who is employed by the Commonwealth or a
political subdivision and who is responsible for
taking or recommending official action of a
nonministerial nature with regard to:
(I) contracting or procurement;
(II) administering or monitoring grants or
subsidies;
(III) planning or zoning;
(IV) inspecting, licensing, regulating, or
auditing any person; or
(V) any other activity where the official
action has greater than a de minimis economic
impact; and
(B) who meets the criteria of either
subclause (I) or (II):
(I) The individual is:
( -a -) a person who normally
performs his responsibility in the field
without on -site supervi sion;
Lawrence E. Keener - Farley, Esquire
June 8, 1984
Page 5
( -b -) the immediate supervisor of a
person who normally performs hi s
responsibility in the field without
on -site supervision; or
( -c -) the supervisor of any highest
level field office.
(II) The individual is a person:
( -a -) who:
( -1 -) has the authority to
make final decisions;
51 Pa. Code 1.1.
We must review the question you present under these provisions of the
statute and the regulations of the Commission in light of your duties and
obligations as described in your request for advice. This inquiry necessarily
focuses on the job itself and not necessarily on the individual incumbent in
the position, the variable functions or the manner in which a particular
individual occupying a position may carry out those functions. See McClure,
83 -001; Phillips, 82 -008, affirmed on appeal, Pa. Cmwlth. , 470 A.2d 659
(1984); and Mummau v. Ranck, 531 Fed. Supp. 402 E.D. Pa. 1982 .
Also, in reviewing your question, the Commonwealth Court in its ruling in
Phillips, supra at page 661 directs us to construe coverage of the Ethics Act
broadly, rather than narrowly and directs that exclusions from the Act's
coverage should, conversely, be narrowly contrued. Based upon this directive
and reviewing the definition of "public employee" in the statute and the
regulations in light of your job functions and the information which you
provided, on an objective basis, we are led to the conclusion that you are a
"public employee" subject to the financial reporting and disclosure
requirements of the Ethics Act. Further detail on our analysis follows.
It is clear that your duties and responsibilities indicate that you have
the authority to recommend official actions of a non - ministerial nature with
regard to inspecting, licensing, regulating or auditing of any person and also
with respect to category (5) within the definition of "public employee" within
the State Ethics Act which deals with "any other activity where the official
action has an economic impact of greater than deminimus nature on the
interests of any person ". As a Legal Assistant II, you exercise independent
judgment in determining whether a violation has in fact occurred. This is
particularly true where you must review the road checks where there are no
"clear violations" shown. In this capacity you review the carrier's file and
interpret the testimony in that file to determine the extent of a carrier's
certificated authority, for example.
Lawrence E. Keener - Farley, Esquire
June 8, 1984
Page 6
Also, with respect to the preparation of road checks with alleged
violations, you are also required, by your own job description, to review the
carrier' s violation history and to recommend action" to determine whether a
particular carrier should be subject to a rule to show cause for repeated
major violations, issuance of a complaint upon the Commission's motion where
major violations are repeated, minor violations exist, or whether to recommend
a letter of warning in the instance where minor violations are discerned.
These activities surely impact upon the carriers in question and your
recommendation with respect to the penalty to be imposed following your
analysis of a carrier's "violation history" indicates your independent
judgment is being exercised. We are also convinced that with respect to the
review of a motor carrier's file in order to determine the existence of
violations or to make final recommendations regarding the appropriate penalty
you are engaged in "making final technical recommendations" within the scope
of our regulations set forth at 51 Pa. Code 1.1(i)(B)(2)(a)(4). In these
circumstances at least your independent judgment and the recommendations based
thereon constitute actions which are "inherent and recurring part" of your
obligation as a Legal Assistant II at the PUC. See 51 Pa. Code
1.1(i)(B)(2)(b)(1).
In our analysis we should emphasize that similar to the arguments raised
in the Phillips case outlined above, it is not necessary for an individual to
have the final authority to make the decision itself to be covered by the
Ethics Act as a "public employee ". The Act, to be liberally contrued, as the
Courts have directed us, must include persons other than those individuals,
such as members of the PUC, who are in a position to make the final decision
with respect to enforcement or compliance. We refer again to our regulations
in which the definition of "non- ministerial" actions are defined as those
actions "in which the person exercises his own judgment as to the desirability
of the action taken ". See 51 Pa. Code 1.1. Conversely, a ministerial act is
defined as one which is taken "without regard to or the exercise of a person's
own judgment as to desirability of the action taken. See 65 P.S. 402 and 51
Pa. Code 1.1.
Reviewing these definitions in light of the above discussion as well, we
must conclude that particularly with respect to your review of road checks,
your review of a potential violation which is "not clear" and your analysis
and research of a carrier's violation history given your authority to
recommend action as to the nature of the penalty to be considered for being
imposed upon such a carrier, we must conclude that your responsibilities are
"non - ministerial" and involve the exercise of "judgment ". You have the
authority and ability to ascertain and make a recommendation as to the
desirability of the action to be taken. The fact that this judgment is
recorded in a report to a superior who has the final decision - making authority
with regard to that report does not compel the conclusion that your actions
with respect to such review are "ministerial" or compel the conclusion that
you are other than a "public employee" as outlined above.
Lawrence E. Keener - Farley, Esquire
June 8, 1984
Page 7
Conclusion: Based upon the above discussion, we conclude that you are to be
considered a "public employee" as that term is defined in the State Ethics Act
and the regulations of this Commission as interpreted in light of the rulings
of the Courts and this Commission. You are, therefore, required to file a
Statement of Financial Interests as set forth in Section 4 of the State Ethics
Act. If you have not already done so, you are required to do so by May 1 of
each year in which you serve as a "public employee" and for the year following
your termination of service with the Commonwealth.
Pursuant to Section 7(9)(ii), this 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, providing the
requestor 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 request that the full Commission review this Advice.
A personal appearance before the full Commission will be scheduled and a
formal Opinion from the Commission will be issued. Any such appeal must be
made, in writing, to the Commission within 15 days of service of this Advice
pursuant to 51 Pa. Code 2.12.
SSC /na
Si ricerely,
cc: Daniel Delaney, Deputy Chief Counsel, PUC
Bill Bauer, Personnel Director, PUC
Linda Taliafero, Chairman, PUC
andra S. Chri, ianson
General Counsel