HomeMy WebLinkAbout83-502 ChildsMsi ng Address:
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1 610
January ii , 198/3
ADVICE OF COUNSEL
Mr. Donald L. Childs
1289 Sun Ridge Drive
Pittsburgh, PA 15241
RE: Financial Interest Statement, Civil Engineer III.
Dear Mr. Childs:
83 -502
This responds to your letter of July, 1982, in which you requested advice
from the State Ethics Commission.
Issue: In your letter, you stated that you do not believe that the duties and
responsibilities of your position as a Civil Engineeer III with the Department
of Transportation fall within the definition of "public employee" under Act
170 and you are appealing from the denial of your appeal by the Department's
Bureau of Personnel. See letter of June 23, 1982, of Sharon S. Wright,
incorporated herein by reference.
Facts: You are a Civil Engineer III, in the Pittsburgh Design Liason Unit of
the Department of Transportation. According to the Department of
Transportation Job Description of a Civil Engineer III, which is incorporated
herein by reference, your duties include the following: you act as a
consultant liason engineer on assigned highway design projects; you contact
consultants who are awarded contracts, participating as necessary, making
field views in conjunction with development and 4psign details, reviewing
plans and materials prepared by consultants, revi'Wving progress being made and
prepared by consultants, reviewing progress being made and providing guidance
with regard to departmental policies and district requirements, and making
appropriate recommendations concerning completed work prior to submission to
central office and you represent the district at hearings, meetings, or with
the public as required in conjunction with assigned projects as well as
performing the related duties as required.
You state that your duties are ministerial in nature and that all of your
duties are performed under the direct supervision of Mr. R. Melani, District
Design Liason Engineer. Supervision is constant, and you neither supervise
any employees nor have the authority to make the final decisions or final
recommendations on any Department matter.
State Ethics Commission • 308 Finance Building • Hf r: sburg, Pennsylvania
Mr. Donald L. Childs
January 7, 1983
Page 2
For these reasons, you believe that you do not meet the definition of a
"public employee" as defined by the State Ethics Act, and you are requesting
that the Commission uphold your appeal from the Bureau of Personnel decision
that you fall within the definition. You note the information contained in an
April 18, 1980 letter prepared by the Bureau of Personnel and state that you
base your appeal on clauses (a) and (b) on pages 2 and 3 of that letter which
is incorporated herein by reference.
Discussion: A "public employee" is defined at 65 P.S. 402 as:
"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:
(5)
contracting or procurement;
administering or monitoring grants or
subsidies;
planning or zoning;
inspecting, licensing, 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.
"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.
While you state that you are under the constant supervision of Mr. R.
Melani, District Design Liason Engineer, the job description provided
indicates that you are responsible for certain field duties, i.e. "reviewing"
plans and materials, making "field views" and reviewing progress being made.
This authority falls under (4) above, inspecting, licensing, regulating or
auditing any person. You may also represent the district at hearings,
meetings, or with the public as required in conjunction with assigned projects
as such duties may arise. In this regard, our regulations cover "field"
employees to the extent that they work in the field as follows:
2.10(a)(6). Those individuals working in the field
administering or monitoring grants or subsidies, planning,
zoning, inspecting, licensing, auditing or any other
activity where the individual is not under direct personal
supervision while he or she is performing his or her
employment function. Those individuals who are immediate
and regional supervisors of those persons described in
this subsection.
Mr. Donald L. Childs
January 7, 1983
Page 3
While, as you state, you might not engage in any field work or public contact,
your job description states to the contrary. Also the definition of public
employee in the Ethics Act and regulations does not limit its application to
persons with the authority to make final recommendations per se. Your
authority to make recommendations concerning completed work is sufficient to
conclude you are a "public employee" as that term is defined in the Ethics Act
and regulations.
Finally, it should also be noted that regulations of the Commission state
that engineers are generally considered to be public employees and so are
subject to the financial disclosure provisions of the Ethics Act.
Conclusion: You are, therefore, considered a "public employee" and required
to file a financial disclosure form pursuant to the provision of the Ethics
Act, 65 P.S. 401 et. seq. Forms are attached for your use. Please file the
original with your Personnel Office, the yellow copy with our office, and
retain the green copy for your records within 15 days of this Advice.
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 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.
CW /rdp
Attachments
cc: Thomas D. Larson, Secretary
Sincerely,
Sandra S. Ch istianson
General Counsel