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HomeMy WebLinkAbout84-607 SmithMr. G. L. Smith 875 Greentree Road 4 Parkway Center Pittsburgh, PA 15229 Dear Mr. Smith: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 September 13, 1984 ADVICE OF COUNSEL Re: Real Estate Specialist II, Public Employee, PennDot 84 -607 This responds to your letter of appeal of June 25, 1984, in which you requested advice from the State Ethics Commission. Issue: You ask whether in your capacity as a Real Estate Specialist, with the Right -of -Way Division, Engineering District 11 -0, 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. Performing property research and investigation. 2. Discussing right -of -way acquisition procedures with mortgage companies. Mr. G. L. Smith September 13, 1984 Page 2 3. Field site inspection with respect to real estate which might be acquired for public purposes. 4. Acting as liaison with plans, surveys, soils and engineering units concerning the property to be acquired. 5. Assisting and effecting claim settlements, including meeting with property owners to inform them of their rights, managing, protecting and selling Commonwealth- acquired property. This function also includes reviewing and analyzing right -of -way projects and claim status reports and preparing summary reports recommending action to expedite right -of -way projects. 6. Removing encroachments from right -of -way, preparing testimony and testifying in legal procedures to enforce the outdoor advertising and junkyard programs. This later function includes contacting real estate owners for the removal of outdoor advertising devices, screening or removal of other encroachments within the prescribed distances of rights -of -way. These duties are essentially conducted to enforce and effect control of an outdoor advertising and junkyard control program. Discussion: As set forth above, the question to be answered here is clear. Specifically, are you, in your capacity as a Real Estate Specialist II serving with 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. G. L. Smith September 13, 1984 Page 3 Section 1.1. Definitions. Public employee - -- (1) 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 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 (8) 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: Mr. G. L. Smith September 13, 1984 Page 4 ( -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; ( -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. G. L. Smith 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 enforcement 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 directors. (8) 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; Philli s, 82 -008, affirmed on appeal, Pa. Cmwlth. , 470 A.2d 659 ( , 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. G. L. Smith 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 Act. Further detail on our analysis follows. It is clear that in your capacity as a Real Estate Specialist II, you have the ability to recommend official action with respect to subparagraphs (3), (4) and (5) within the definition of "public employee" as set forth in the Ethics Act, 65 P.S. 402. Specifically, especially with respect to your ability to recommend actions which would expedite right-of-way projects and involving the enforcement and control of the outdoor advertising and junkyard program, your actions and recommendations do fall within the above - referenced parameters of the definition of "public employee" as set forth in the Ethics Act. As noted above, the fact that you do not regularly or continually undertake these responsibilities does not negate the analysis contained here. We must look to your responsibilities on an objective basis as outlined above. These activities fall within the definition of public employee as contained in the regulations of the Commission, 51 Pa. Code (i)(A)(IV) and (V) and (8)(I)(a). 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 Act. Conclusion: Based upon the above discussion, we conclude that you are to be considered a "public employee" in your capacity as a Real Estate Specialist II 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 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. 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. Mr. G. L. Smith September 13, 1984 Page 7 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: SFI SSC /na cc: Thomas D. Larson, Secretary, PennDot Bruce Doman, Inspector General, PennDot Sharon S. Wright, Director, Personnel, PennDot Sincerely, j i Sandra S. Christianson General Coun s'el