HomeMy WebLinkAbout17-572 SeeseSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
(717) 783 -1610
1 -800- 932 -0936
ADVICE OF COUNSEL
October 20, 2017-
To the Requester:
Mr. Russell W. Seese
17 --572
Dear Mr. Seese:
This responds to your letter received August 28, 2017, and your submission
received September 5, 2017, by which you requested an advisory from the
Pennsylvania State Ethics Commission ("Commission").
Issue: Whether, as a Diesel and Construction Equipment Mechanic for the
ennsylvania Department of Transportation ( "PennDOT ") under 'ob. code 93130, you
would be considered a "public empplo ee" subject to the Public 8fficial and Employee
Ethics Act ( "Ethics Act "), 55 Pa:C.S. 1101 et seq., and the Regulations of the State
Ethics Commission, 51 Pa. Code § 1,1 et —se g., such that upon termination of your
employment with PennDOT, the restrictions o _Section 1103(g) of the Ethics Act would
be applicable to you.
Facts: You request an advisory from the Commission based upon submitted
acts that may be fairly summarized as follows.
You are currently employed as a Diesel and Construction Equipment Mechanic
for PennDOT in District 4, Wayne County, Pennsylvania, You have submitted a copy of
your official Commonwealth position description, which document is incorporated herein
by reference. A copy of the job classification specifications for the position of Diesel
and Construction Equipment Mechanic (job code 93130) has been obtained and is also
incorporated herein by reference.
Per your official Commonwealth position description, you perform a variety of
analytical, preventative maintenance, and repair .duties for a fleet of construction
equipment, trucks, automobiles, and hand tools. Your duties and responsibilities
include the following:.
Repairing and overhauling vehicles such as cars, trucks; and tractors, and
carrying out maintenance and repairs on equipment such as sweepers, mixers,
and front end loaders;
• Carrying out a preventative maintenance program on vehicles, equipment, and
parts by adjusting, maintaining, repairing, and replacing various parts and
components;
FAX: (717) 787-08064 Web Site: www.ethics.state,pa.us • e -mail: ethics(Dstate.pa.us
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• Carrying out official state inspections for safety and emissions on vehicles as
assigned, performing repairs to ensure compliance with specifications, road
testing vehicles, and completing state inspection records and related inspection
paperwork;
• Identifying equipment problems using diagnostic equipment and procedures;
• Repairing and maintaining motorized hand equipment; and
• Performing all necessary routine field adjustments to permit safe operation and
minimize wear, demonstrating repair techniques on assigned equipment to other
employees, and maintaining. equipment records.
Position Description, at 1 -2.
Per the job classification specifications under job code 93130, a Diesel and
Construction Equipment Mechanic:
• Repairs, rebuilds, and replaces worn or broken parts of construction equipment
and vehicles and repairs or rebuilds shop equipment;
• Tests and troubleshoots diesel and gasoline engine and fuel system problems
and repairs and overhauls diesel and gasoline powered engines and construction
equipment;
• Identifies and recommends the ordering of repair parts; and
• Operates motor vehicles and equipment.
Job Classification Specifications, Job Code 93130, at 1 -2.
You have applied fora osition as a Transportation Construction Inspector for
McTish Kunkle & Associates (the "Firm "). You state that the work involved in such
position may include inspecting PennDOT projects in District 4.
You seek guidance as to whether the Ethics Act would impose prohibitions or
restrictions upon you following termination of your employment with PennDOT. In
particular, you ask whether you would be permuted to work as a Transportation
Construction Inspector for the Firm.
Discussion; It is initially noted that pursuant to Sections 1107(10)'and 1107(1.1) of
the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester
based upon the facts that the requester has submitted. In issuing the advisory based
upon the facts that the requester has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that have not
been submitted. It is the burden of the requester to truthfully disclose all of the material
facts relevant to the inquiry: 65 Pa.C.S. §§ 1107(10, (11). An advisory only affords a
defense to the extent the requester has trot fully disc used all of the material facts.
In responding to your inquiry, the threshold question to be addressed is whether,
in your current position as a Diesel and Construction Equipment Mechanic with
PennDOT, you would be considered a "public employee" subject to the Ethics Act.
The Ethics Act defines the term "public employee" as follows:
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Z)ctoC er 20, 2017
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§ 1102. 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:
III 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 minimis
nature on the interests of any person.
The term shall not include individuals who are employed by
this Commonwealth or any political subdivision thereof in
teaching as distinguished from administrative duties.
65 Pa.C.S. § 1102.
The Regulations of the State Ethics Commission similarly define the term "public
employee" and set forth the following additional criteria:
(ii) The following criteria will be used, in part, -to
determine whether an individual is within the definition of
"public employe ":
(A) The individual normally performs his responsibility
in the field without onsite supervision.
(B) The individual is the immediate supervisor of a
person who normally performs his responsibility in the field
without onsite supervision.
(C) The individual is the supervisor of a highest level
field o ice.
(D) The individual has the authority to make final
decisions.
(E) The individual has the authority to forward or
stop recommendations from being sent to the person or
body with the authority to make final decisions.
(I~) The individual prepares or supervises the
preparation of final recommendations.
(G) The individual makes final technical recommen-
dations.
(H) The individual's recommendations or actions are
an inherent and recurring -part of his position.
(1) The individual's recommendations or actions
affect organizations other than his own organization.
5eese, 17 -572
0-c-t-o5er 20, 2017
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(iii) 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.
(iv) Persons in the following positions are generally
considered public employes:
(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.
(D) Engineers, managers and secretary- treasurers
acting as managers, police chiefs, chief clerks, chief
purchasing agents, grant and contract managers,
administrative officers, housing and building inspectors,
investigators, auditors, 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 superintendents, assistant superintendents,
school business managers and principals.
(G) Persons who report directly to heads of
executive, legislative and independent agencies, boards and
commissions except clerical personnel.
(v) Persons in the following positions are generally
not considered public employes:
(A) City clerks, other clerical staff, road masters,
secretaries, police officers, maintenance workers,
construction workers,- equipment operators and recreation
directors.
(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 § 11.1.
The following terms are relevant to your inquiry and are defined in the Ethics Act
as follows:
§ 1102. Definitions
"Ministerial action." An action that a person
performs in a prescribed manner in obedience to the
mandate of legal authority, without regard to or the exercise
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of the person's own judgment as to the desirability of the
action being taken.
"Nonministerial actions. An action in which the
person exercises his own judgment as to the desirability of
the action taken.
65 Pa.C.S. § 1102.
In applying the definition of "public employee" and the related regulatory criteria
to the submitted facts as to the duties of your current position, the necessary conclusion
is that in your capacity as a Diesel and Construction Equipment Mechanic with
PennDOT, you are not to be considered a "public employee" as that term is defined in
the Ethics Act. Based upon an objective review of the official position description and
the job classification specifications, you are not responsible for taking or recommending
official action of a non - ministerial nature with regard to any of the five categories set
forth in the Ethics Act's definition of the term "public employee."
The post - employment restrictions of Section 1103(g) of the Ethics Act only apply
to former public officials /public employees:
§ 1103. Restricted activities
(g) Former official or employee.—No former public
official or public employee shall represent a person, with
promised or actual compensation, on -any matter before the
governmental body with which he has been associated for
one year after he leaves that body.
65 Pa.C.S. § 1.103(g).
Because the duties and responsibilities of your current position would not bring
you within the definition of "public employee" as set forth in the Ethics Act, Section
1103(g) of the Ethics Act would not be applicable to you upon termination of your
employment as a Diesel and Construction Equipment Mechanic with PennDOT and
would not restrict you with regard to working as a Transportation Construction Inspector
for the Firm.
The only provision of the Ethics Act that applies to you is Section 1103 (b), which
applies to everyone. For your information, Sections 1103(b) and 1103(c) of the Ethics
Act provide in part that no person shall offer or give to a public official/public employee
anything of monetary value and no public official/public employee shall solicit or accept
anything of monetary value based upon the understanding that the vote, official action,
or udgment of the public official/public employee would be influenced thereby.
Reference is made to these provisions of the law not to imply that there has been or will
be any transgression thereof but merely to provide a complete response to the question
presented.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act; the applicability of any other statute, code, ordinance, regulation or other
code of conduct other than the Ethics Act has not been considered in that they do not
involve an interpretation of the Ethics Act. Specifically not addressed herein is the
applicability of the Governor's Code of Conduct.
Conclusion: Based upon the submitted facts, in your current capacity as a
Diesel and Construction Equipment Mechanic with the Pennsylvania Department of
Transportation ( "PennDOT ") under A'ob code 93130, you are not to be considered a
"public employee" as that term is defined by the Public Official and Employee Ethics Act
Seese, 17 -572
Octob r20, 2017
Page 6
{ "Ethics Act "), 65 Pa.C.S. § 1101 et sec . Consequently, Section 1103(g) of the Ethics
ct would not be applicable to you upon termination of your employment as a Diesel
and Construction Equipment Mechanic with PennDOT and would not restrict you with
regard to working as a Transportation Construction Inspector for McTish Kunkle &
Associates. Section 1103(b) of the Ethics Act applies to everyone. Lastly, the propriety
of the proposed conduct has only been addressed under the Ethics Act.
Pursuant to Section 1107(l 1) of the Ethics Act, an 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, provided the requester 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 appeal the Advice to the full
Commission. A personal appearance before the Commission will be
scheduled and a formal Opinion will be issued by the Commission.
Any such appeal must be in writing and must be actuall
received at the Commission within thirty (30) days of. the date of-0
Advice pursuant to 51 Pa. Code § ?3.2(h). The appeal may be
received at the Commission by hand delivery, United States mail,
delivery service, or by FAX transmission (717 -787 0806). Failure to
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal
Sinc ely,
VobM. Hittie
Chief Counsel
nWA