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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 Seese, 17 -572 OdtoGer 20, 2017 Page 2 • 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: Seese, 17 -572 Z)ctoC er 20, 2017 Page 3 § 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 Page 4 (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 Seese, 17 -572 Dco6er 20, 2017 Page 5 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