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HomeMy WebLinkAbout83-608 ElwellMr. John W. Elwell 440 Wyoming Street Williamsport, PA 17701 Dear Mr. Elwell: Mailing Address STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: 1717) 783 -1610 November 2, 1983 ADVICE OF COUNSEL RE: Civil Engineer III; PennDot; Financial Interest Statement 83 -608 This responds to your request of July 11, 1983, in which you ask the State Ethics Commission to make a determination regarding your status as a public employee for purposes of filing a Financial Interest Statement. Issue: You ask whether you, as a Civil Engineer III for the Pennsylvania Department of Transportation ( PennDot) are considered a "public employee" who must file a Financial Interest Statement with the State Ethics Commission. Facts: You are employed as a Civil Engineer III by PennDot. Your current position is that of Programming Engineer in Engineering District 3 -0, Montoursville, Pennsylvania. Your job description (incorporated here by reference) indicates that your primary duties deal with highway location studies, liasion, and planning. You are responsible for coordinating Department and outside agency activities to insure the proper integration of pertinent data into program development and these tasks include, but are not limited to, activities such as: the study and analysis of existing highway networks; conducting and analyzing traffic transportation feasibility, and location studies; analyzing the effects of local, county, and regional transportation plans; and analyzing local, county, and regional planning studies. You are also responsible for coordinating the efforts and recommendations of public and private agencies on matters affecting proposed district projects or future planning. You attend meetings and conferences with planning commissions, boroughs, city and township officials, development and redevelopment authorities, civic associations, traffic and transportation study groups, and other similar agencies. In this regard, you explain the District's anticipated program or its position on specific planning, feasibility and location problems. You are also responsible for preparing reports and recommendations refelecting the views of such agencies and their effects on the District's programs. You are responsible for establishing and maintaining effective working relationships with private agencies, pertinent Department bureau directors and District employees in accomplishing assigned responsibilities. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. John W. Elwell November 2, 1983 Page 2 Additionally, the classification specifications for this position (incorporated here by reference) state that you are expected to work independently to perform and monitor engineering studies, to conduct location or foundation investigations and generally act on assignments which require the independent selection of courses of action for which well - established guidelines are not available. Although the Office of Administration and PennDot have determined that you should be considered a "public employee ", you state that, in your position as a Civil Engineer III, you do not fall within the definition of a public employee. You state that your position involves only ministerial actions, and you therefore, appeal to the State Ethics Commission to determine whether you, a Civil Engineer III for PennDot, must file a Financial Interest Statement with the State Ethics Commission. We also note that the Office of Administration and PennDot have listed Civil Engineer III's as public employees on their directives for 1983 which list the persons who have been found to be "public employees" and thus, required to file Financial Interest Statements. Discussion: Initially, the Ethics Commission notes that, as a statutory entity, its jurisdiction and its power is strictly limited to the authority granted it in 65 P.S. 401 et seq. Thus, it has no authority to interpret and /or enforce the provisions of other codes, for example, the Governor's Code of Conduct, and this Advice should not be construed as a determination under Commonwealth laws, codes or regulations other than the Ethics Act. The applicable provisions of the Ethics Act are contained in 65 P.S. 402 which reads: "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: (2 (1) contracting or procurement; ) 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. John W. Elwell November 2, 1983 Page 3 You should also be aware that 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 recommendations concerning completed work as well as your responsibility as expressed in the classification specifications for the position of Civil Engineer III (outlined above) are sufficient to conclude that you are a "public employee" as that term is defined in the Ethics Act in regulations. See Childs, 83 -502 and Riggs, 80 -14A. 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 considered to be a "public employee" and you are thus required to file a financial disclosure form pursuant to the provisions 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 to document compliance, 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: Bruce K. Doman, Esquire Thomas D. Larson Kenneth Bausinger Sincerely, t ja6,(14A20-) Sandra S. stianson General Cou sel