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HomeMy WebLinkAbout83-616 MontgomeryMr. Bruce E. Montgomery 301 Edison Avenue New Castle, PA 16101 Mailing Address STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 November 23 , 1983 ADVICE OF COUNSEL RE: Civil Engineer II; PennDot; Financial Interest Statement Dear Mr. Montgomery: 83 -616 This responds to your request of July 5, 1983, in which you ask the State Ethics Commission to review the Office of Administration's determination regarding your status as a "public employee" for purposes of filing a Financial Interest Statement under the State Ethics Act. Issue: You ask whether you, as a Civil Engineer II with the Pennsylvania Department of Transportation (PennDot), must file a Financial Interest Statement with the State Ethics Commision. Facts: You are a Civil Engineer II with PennDot. Your job description indicates that you initiate at least one feasibility study per month. Such studies include producing the best available base plan sheets through the use of area photographs, historical plans, and /or UPG maping; the designing and drawing of alternate roadways on the base plan sheets according to acceptable standards; and determining preliminary cost estimates by computing quantities and cost of the materials for all alternates designed. You also participate in local coordination and planning and programming to a limited degree, as determined by a supervisor, and you are responsible for reviewing requests for federal authorizations which are submitted by in- house, consultant, and /or local designers. Although the Office of Administration and PennDot have determined that you should be consiaered to be a "public employee ", you argue that, as a Civil Engineer II, you do not fall within the definition of "public employee ". You, therefore, appeal to the State Ethics Commission to determine whether you, a Civil Engineer II for PennDot, must file a Financial Interest Statement with the State Ethics Commission. We note that the Office of Administration and PennDot have listed Civil Engineer II's as public employees on their directives for 1983 which list persons required to file Financial Interest Statements. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Bruce E. Montgomery November 23, 1983 Page 2 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 force the provisions of other codes, for example, the Governor's Code of Conduct, and this Advice should not be construed as a ruling under other Commonwealth laws, codes or regulations. 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: (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. Although your job description indicates that you report directly to the locations engineer in your section, your description also indicates that you are responsible for certain planning and review duties. Specifically, you are responsible for reviewing requests for federal authorizations which are submitted by in- house, consultant, and /or local designers. In this regard, you are responsible for certain duties of a non - ministerial nature and you apparently have authority with respect to taking or recommending official action which respect to category (4) and possibly (5) as set forth in the definition of "public employee" above. Also, the definition of public employee in the Ethics Act in regulations does not limit its application to persons with the authority to make final recommendations per se. You authority to review and make recommendations concerning federal authorizations is sufficient to conclude that you are a "public employee" as that term is defined in the Ethics Act in regulations. Mr. Bruce E. Montgomery November 23, 1983 Page 3 Also, 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. Finally, we note we have previously concluded that Civil Engineer II are generally within the coverage of the Ethics Act. See Majeed /Bowman /Riggs, 80 -549 (14A). We note that we have no record of any previous appeals filed by you, however, with respect to your particular position description. Conclusion: You to be 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, and retain the green copy for your records within 15 days of receipt 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 Doman Ken Bausinger Sharon Wright Cheryl Cohen Sincerely, Sandra S. Chr stianson General Coun el