HomeMy WebLinkAbout84-606 GibsonMr. William L. Gibson
153 Avenue A
Pittsburgh, PA 15220
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
September 13, 1984
ADVICE OF COUNSEL
84 -606
Re: Civil Engineer II, Public Employee
Dear Mr. Gibson:
This responds to your letter of appeal of June 18, 1984, in which you
requested advice from the State Ethics Commission.
Issue: You ask whether in your capacity as a Civil Engineer II, Design
Division with the Department of Transportation, hereinafter, PennDot, you
are to be considered a "public employee" as that term is defined in the Ethics
Act, and therefore, whether you are required to file a Statement of Financial
Interests pursuant to the Ethics Act.
Facts: You indicate that you do not believe that your activities and
functions fall within the purview of the definition of "public employee" as
that phrase is defined in the State Ethics Act 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, and as
contained in your job description and the classification specifications for
this position. Your duties and responsibilities, as set forth in these two
documents which are incorporated herein by reference, include the following
responsibilities and functions:
1. Participating in the preparation of proposals on contract construction
and acting as liaison between the District Office and the Central Office.
2. Processing contract construction projects from completion of the design
stage to the "lettering" of same.
Mr. William L. Gibson
September 13, 1984
Page 2
3. Working independently and performing preliminary engineering studies,
conducting location or foundation investigations, preparing plans and
specifications, and serving as construction engineer on less complex
projects.
4. Participating in the collection, validation, analysis and projection of
multi -modal transportation planning data, and assigning travel data to the
existing and committed transporation networks and assisting in developing
alternative transporation plans.
5. Serving as construction engineer as listed above, including assigning
inspection of section of projects to assistants,- making changes in design as
indicated by on -site conditions, and estimating the amount of work completed
for purposes of making payment to contractors.
6. Performing preliminary highway location studies for less complex
projects.
7. Reviewing highway design plans for less complex projects to insure the
proper and effective traffic controls.
Discussion: As set forth above, the question to be answered here is clear.
Specifically, are you, in your capacity as a Civil Engineer II serving with
the Design Division of PennDot to be considered a "public employee" as those
terms are defined in the State Ethics Act and the regulations of the
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
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
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.
Mr. William L. Gibson
September 13, 1984
Page 3
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
nonmini steri al 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 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:
make fina1 decisionsuthority to
Mr. William L. Gibson
September 13, 1984
Page 4
( -2 -) has the authority to
forward or stop recommendations
from being sent to the person or
body with the authority to make
final decisions;
( -3 -) prepares or
supervises the preparation of
final recommendations; or
( -4 -) makes the 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.
Mr. William L. Gibson
September 13, 1984
Page 5
(0) 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 enfor=cement 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 employes.
(A) City clerks, other clerical staff, road
masters, secretaries, police officers, welfare case
workers, maintenance workers, construction workers,
detectives, equipment operators, and recreation
di rectors.
(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 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 and /or appeal, the
classification specifications, and the job description 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 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 conversely, directs that exclusions
from the Ethics Act should be narrowly construed. Based upon this directive
and reviewing the definition of "public employee" in the statute and the
regulations and opinions of this Commission, in light of your job functions
and the information available to us, we are led to the conclusion that while
Mr. William L. Gibson
September 13, 1984
Page 6
you serve in this capacity, you are a "public employee" subject to the
financial reporting and disclosure requirements of the State Ethics kt.
Further detail on our analysis follows.
It is clear that in your capacity as a Civil Engineer II, you have the
ability to recommend official action with respect to subparagraphs (1), (3)
and (5) within the definition of "public employee" as set forth in the Ethics
Act, 65 P.S. 402. Specifically, while employed as a Civil Engineer II in your
capacity with the Locations and Contracts Unit of the Design Division of
PennDot, you certainly have power, according to your job description and the
classification specifications for this position to take or recommend official
action regarding contracting. The fact that you may not have the final
decision - making authority with respect to these contracts does not preclude
our conclusion that you are capable of and responsible for recommending action
within the definitional parameters of "public employee" as set forth in the
Ethics Act. These activities fall within the definition of public employee as
contained in the regulations of the Commission, 51 Pa. Code (i)(A)(I), (III)
and (IV). Under these circumstances and given your duties and
responsibilities as outlined above, we must conclude that you are a "public
employee" as that term is defined in the State Ethics kt.
Additionally, we note that we have also previously ruled that a Civil
Engineer II, serving in the Design Division of PennDot is a "public employee ".
See Majeed, 30 -14A. Similarly, we have ruled that a Civil Engineer III
serving ni the Design Liaison Unit in Pittsburgh is a public employee.
Childs, 83 -502. Likewise, with respect to a Civil Engineer III serving with
the Bureau of Maintenance and Operations in the Traffic Engineering and
Operations Division we have also reached a similar conclusion. See Vorce,
84 -591. There is no reason to arrive at a different conclusion with respect
to your position as a Civil Engineer II as outlined above.
Conclusion: Based upon the above discussion, we conclude that you are to be
considered a "public employee" in your capacity as a Civil Engineer II with
the Design Division, 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 Finanical 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.
Mr. William L. Gibson
September 13, 1984
Page 7
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.
Enclosure: SF1
SSC /na
cc: Thomas D. Larson, Secretary, PennDot
Bruce Doman, Inspector General, PennDo
Sharon S. Wright, Director, Personnel, PennDot
Sin erely,
dM, '
• Sandra S. Christianson
General Counsel