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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