HomeMy WebLinkAbout89-572 WestonH.D. Weston
#1 Ellen Drive
Enola, PA 17025
Dear Mr. Weston:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
October 3, 1989
89 -572
Re: Civil Engineer III /Senior Civil Engineer; PennDot; Public
Employee; FIS
This responds to your letter of August 31, 1989 and Financial
Disclosure Appeal, which will be treated as a request for advice
from the State Ethics Commission.
Issue: You ask whether in your capacity as a Civil Engineer III
with the Pennsylvania Department of Transportation, hereinafter,
PennDot, you are to be considered a "public employee" as that term
is defined in the Public Official and Employee Ethics Law, and
therefore, whether you are required to file a Statement of
Financial Interests.
Facts: You question whether your activities and functions fall
within the purview of the definition of "public employee" as that
phrase is defined in the Ethics Law and the regulations of this
Commission. In order to review the question presented, we will
briefly outline the duties and responsibilities associated with
your position as contained in your job description and the
classification specifications for this position. Your duties and
responsibilities, as set forth in these two documents are
incorporated herein by reference. The classification specification
for a senior civil engineer /engineer III provides:
This is advanced professional supervisory civil
engineering work.
An employe in this class supervises civil engineers
who perform journey level work associated with the
H.D. Weston
Page 2
location, design, or construction of roads, bridges,
buildings, dams or related hydrologic structures, water or
sewage treatment facilities, structural life support
systems, Commonwealth facilities, or other civil
engineering projects, transportation planning, traffic
control of highways, and construction materials testing or
sampling, analysis and design of soils. Work involves
supervising and performing preliminary engineering
studies, location or foundation investigations, the review
of plans and specifications or serving as construction
engineer supervisor on large and complex projects. In a
DOT engineering district, the employe would function as a
unit or squad supervisor over other engineers or technical
personnel. In other agencies, employes function as first -
level supervisors of journey civil engineering functions.
Assignments require the independent selection of courses
of action for which well established guidelines are not
available. Supervision is exercised over engineers and
technicians, and may supervise inspectors. Work is
assigned in broad outline by an administrative or
technical supervisor who reviews completed work for
engineering soundness and satisfactory completion of
assigned projects.
Your specific job description sets forth your duties and
responsibilities as follows:
Performs a variety of professional duties associated
with evaluation of new products, materials and
technologies. Responsible for the administration of the
Product Evaluation (PE) program for the Evaluations and
New Products Section. Reviews written or verbal requests
from manufacturers, producers and entrepreneurs, and
coordinates Department's review of these requests.
Participates in the Department's PE Review Board; which
assesses need of new products and technologies submitted
for evaluation. Acts as liaison between the producer and
evaluator. Maintains a computerized PE status register
and tickle file for action. When appropriate, informs the
producer in writing of disposition of his product, within
one calendar week of final assignment. Coordinates
listing of approved products in Bulletin #15, when
appropriate. Recommends and assists in the implementation
of acceptable new products by initiation of specification,
standard drawing or policy changes.
H.D. Weston
Page 3
As a project engineer in the Evaluation and New
Products Section, is responsible for field evaluation of
new or questionable materials, procedures and
technologies. Prepares a work plan for such evaluations,
coordinates installation and evaluation of research
projects with district personnel and bureau
representatives. Writes construction, interim and final
reports as required. Recommends and assists in
implementation of research findings. Makes presentation
of research work at technical seminars, as required.
Participates as project engineer, as described, on
approximately 4 -6 assigned projects. Approximately 30% of
time is spent in the field to accomplish inspections of
assigned research projects.
In your Financial disclosure appeal form, however, you argue
that you do not fit within the satutory definition of public
employee. In particular, you assert that your work is reviewed by a
supervisor, that you do not supervise anyone, that you do not
normally work in the field without supervision and that you do not
have authority to make final decisions or forward or stop final
decisions. You state that your work assignments are received from
your supervisor who reviews and approves your completed work. You
note that you serve as a coordinator who puts a product supplier in
touch with the technical expert in PennDot who does the evaluation
and submits a report to the Board for approval or rejection.
Lastly, you state that you do not normally work in the field unless
accompanied by a supervisor.
Discussion: The question to be answered is whether you, in your
capacity as a Civil Engineer III for PennDot, are to be considered a
"public employee." The Ethics Law defines that term 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 nonministerial nature with
regard to:
(1) contracting or procurement;
(2) administering or monitoring
grants or subsidies;
(3) planning or zoning;
(4) inspecting, licensing,
H.D. Weston
Page 4
regulating or auditing any
person; or
any other activity where the
official action has an economic
impact of greater than a de
minimus nature on the interests
of any person. 65 P.S. 5402.
"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. S402.
(5)
The regulations of the State Ethics Commission similarly define
the term public employee as above and also set forth that the term
includes any individual:
(B) who meets the criteria of either subclause
(I) or (II):
(I) The individual is:
( - -) a person who normally
performs his responsibility in the
field without on -site supervision;
( -b -) the immediate supervisor of
a person who normally performs his
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;
( -2 -) has the authority to
forward or stop recommendations from
being sent to the person or body with
the authority to make final decisions;
H.D. Weston
Page 5
( -3 -) prepares or supervises the
preparation of final recommendations;
or
( -4 -) makes final technical
recommendations; and
( -b -) whose recommendations or
actions:
( -1 -) are an inherent and
recurring part of his position; and
( -2 -) affect organizations other
than his own organization.
(ii) 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.
(iii) Persons in the positions listed below are
generally considered public employees.
(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 before
the public.
(D) Solicitors, engineers, managers,
and secretary- treasurers acting as
managers, police chiefs, chief clerks,
chief purchasing agents, grant and
contract managers, housing and
building inspectors, sewer enforcement
H.D. Weston
Page 6
officers, and zoning officers in all
governmental bodies.
(E) Court administrators, assistants
for fiscal affairs, and deputies for
the minor judiciary.
(F) School business managers and
principals.
(iv) Persons in the positions listed below are
generally not considered public employees.
(A) City clerks, other clerical
staff, road masters, secretaries,
police officers, welfare case
workers, maintenance workers,
construction workers, detectives,
equipment operators, and recreation
directors.
(B) Law clerks, court criers, court
reporters, probation officers,
security guards, and writ servers.
(C) School teachers and clerk of the
schools. 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 job description
and /or classification specifications, under which you operate. Our
inquiry necessarily focuses on the job itself and not on the
individual incumbent in the position, the variable functions of the
position, or the manner in which a particular individual occupying a
position may carry out those functions. See Phillips v. State
Ethics Commission, 79 Pa. Cmwlth. 491, 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
conversely, directs that exclusions from the Ethics Law should be
narrowly construed. Based upon this directive and reviewing the
definition of "public employee" in the statute and the regulations
H.D. Weston
Page 7
and opinions of this Commission, in light of your job functions and
the information available to us, we must conclude that you are a
"public employee" subject to the financial reporting and disclosure
requirements of the State Ethics Act.
It is clear that in your capacity as a Civil Engineer III, you
have the ability to recommend official action with respect to
subparagraph (5) within the definition of "public employee" as set
forth in the Ethics Law, 65 P.S. S402. Specifically, from the
classification specification, you perform supervisory and review
functions and your assignments require the independent selection of
courses of action. In addition to exercising supervision over
engineers and technicians you may also supervise inspectors. From
your job description, you as a Project Engineer in the Evaluation
and New Products Section are responsible for field evaluation of
material and you coordinate installation and evaluation of research
projects with district personnel. You make recommendations and
provide assistance in the implementation of research findings and
spend approximately 30% of your time in the field accomplishing
inspections. These activities fall within the definition of public
employee as contained in the regulations of the Commission in
Section 1.1, subparagraphs B(I)(II). 51 Pa. Code 1.1. Under these
circumstances and given your duties and responsibilities as outlined
above, you are a "public employee" as that term is defined in the
Ethics Law.
The State Ethics Commission has determined in Montaomerv,
Opinion 84 -004 that a Civil Engineer II in PennDot is a public
employe required to file the financial interest statement under the
Ethics Act. Lastly, subparagraph (iii)(D) of the regulations
specifically include engineers within the positions of public
employees.
Conclusion: You are to be considered a "public employee" in your
capacity as a Civil Engineer III with PennDot. Accordingly, you
must file a Statement of Financial Interests for each year in which
you hold the position outlined above and for the year following your
termination of this service.
If you have not already done so, a Statement of Financial
Interests must be filed within 15 days of this Advice. This
Statement of Financial Interests would report information of the
prior calendar year. Please file the original of such a Statement
with this Commission to insure compliance with this Advice, provide
the yellow copy to your Personnel Office and retain the green copy
for your records.
H.D. Weston
Page 8
such.
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
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 Commission
will be scheduled and a formal Opinion from the Commission will be
issued. Any such appeal must be in writing and must be received at
the Commission within 15 days of the date of this Advice pursuant to
51 Pa. Code §2.12.
Sjncerely,
Vincent hf. Dopko
Chief Counsel