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HomeMy WebLinkAbout86-578 McCoyMr. Scott McCoy 1231 Airport Road P. 0. Box 201 Allentown, PA 18105 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 June 30, 1986 ADVICE OF COUNSEL 86 -578 Re: Transportation Construction Inspector II, Public Employee Dear Mr. McCoy: This responds to your letter of April 21, 1986, in which you requested advice from the State Ethics Commission. Issue: You ask whether, in your capacity as a Transportation Construction Inspector with the Pennsylvania Department of Transportation, hereinafter the Department, you are to be considered a "public employee" as that term is defined in the Ethics Act, and therefore, whether you are required to file a Statement of Financial Interests pursuant to the Ethics Act. Facts: You advise that you have recently been informed by the Commonwealth of Pennsylvania that you are required to file a Statement of Financial Interests in order to comply with the Pennsylvania State Ethics Act. You have requested a review of that requirement in light of the fact that you have not been employed as a permanent state employee. You advise that you were a temporary employee, as an inspector, with the Pennsylvania Department of Transportation during 1984 and 1985. Your employment, in this respect, was seasonal without entitlements to civil service benefits accorded to permanent state employees. As such, you do not believe that you should be required to file a Statement of Financial Interests in accordance with the Act. In your position with the Pennsylvania Department of Transportation you served specifically as a Transportation Construction Inspector. An employee in this class performs technical inspections of road or bridge construction projects and serves as the lead inspector on a number of non - complex construction phases on larger projects. Work involves the interpretation of contract requirements through the analysis, specifications and drawings. You are also involved in the Mr. Scott McCoy June 30, 1986 Page 2 application of a variety of testing and inspection techniques. Work in your position with the Department, required resolving specification, drawings, or construction problems encountered by lower level inspectors. Work would also involve inspection of existing bridges as part of Commonwealth- Federal Bridge Inspection Programs. In your position with the Department of Transportation you were responsible for making preliminary site inspections for the issuance of highway occupancy permits and you also were involved in inspecting work during construction and after completion of construction to ensure that roadway restoration comply with standards. You also assisted the project inspector i n preparing periodic cost estimates and progress reports, summarizing in detail the project work activities including records of labor, material and equipment used. We have reviewed your job description and the classification specification for the position that you held with the Commonwealth, and have incorporated said documents herein by reference. Discussion: As set forth above, the question to be answered here is clear. Specifically, are you, in your capacity as a Transportation Construction Inspector serving with the Department to be considered a "public employee". The State Ethics Act defines that term as follows: Section 2. Definitions. "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommendi ng official action of a normi ni steri al 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" shal 1 not include individuals who are employed by the State or any political subdivision thereof i n teaching as distinguished from administrative duties. 65 P.S. 402. The regulations of the State Ethics Commission similarly define the term public employee as above and also set forth that the term includes any i ndi vidual : (B) who meets the criteria of either subclause (I) or (II): Mr. Scott McCoy June 30, 1986 Page 3 (I) The individual is: ( -a -) a person who normally performs his responsibility in the field without on -site supervision; ( -b -) the immediate supervisor of a person who normally performs his responsibility in the field without on -site supervision; or ( -c -) the supervisor of any highest level field office. (II) The individual is a person: ( -a -) who: ( -1 -) has the authority to make final decisions; ( -2 -) has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions; ( -3 -) prepares or supervises the preparation of final recommendations; or ( -4 -) makes the final technical recommendations; and (- b- ) _whose recommendations or actions: ( -1 -) are an inherent and recurring part of his position; and ( -2 -) affect organizations other than his own organization. (ii) 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. Mr. Scott McCoy June 30, 1986 Page 4 (iii) Persons in the positions listed below are generally considered public employees. (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 before the public. (D) Solicitors, engineers, managers, and secretary- treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, housing and building inspectors, 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 business managers and principals. (iv) Persons in the positions listed below are generally not considered public employes. (A) City clerks, other clerical staff, road masters, secretaries, police officers, welfare case workers, maintenance workers, construction workers, detectives, equipment operators, and recreation di rectors. (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 1.1. Mr. Scott McCoy June 30, 1986 Page 5 We must review the question you present under these provisions of the statute and the regulations of the Commission in light of your duties and obligations as described in your letter of request, the classification specifications, and the job description under which you operate. Our inquiry necessarily focuses on the job itself and not on the individual incumbent in the position, the variable functions of the position, or the manner in which a particular individual occupying a position may carry out those functions. See McClure, 83 -001; Phillips, 82 -008, affirmed on appeal, 79 Pa. Cmwlth. 491, 470 A.2d 659 (1984); and Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982). Also, in reviewing your question, the Commonwealth Court in its ruling in Phillips, supra, at page 661, directs us to construe coverage of the Ethics Act broadly, rather than narrowly and conversely, directs that exclusions from the Ethics Act should be narrowly construed. Based upon this directive and reviewing the defi nition of "publi c empl oyee" in the statute and the regulations and opinions of this Commission, in light of your job functions and the information available to us, we are led to the conclusion that while you serve in this capacity, you are a "public employee" subject to the financial reporting and disclosure requirements of the State Ethics Act. Further detail on our analysis follows. It is clear that in your capacity as a Construction Inspector you have the ability to recommend official action with respect to subparagraph 4 & 5 within the definition of "public employee" as set forth in the Ethics Act, 65 P.S. 402. Specifically, you were clearly involved in the inspection process regarding completion of road and bridge construction projects, and you were also responsible as per your job classification in assisting the project inspector in preparing periodic costs estimates and progress reports. These activities fall within the definition of public employee as contained in the regulations of the Commission 51 Pa. Code 1.1. Nace, 83 -588. Under these circumstances and given your duties and responsibilities as outlined above, we must conclude that you are a "public employee" as that term is defined in the State Ethics Act. Additionally, regarding the issue of whether your status as a non-permanent employee exempts you from the filing requirement, this Commission has not, to -date, ruled that such status would relieve the responsibility of filing the Statement of Financial Interests in accordance with the State Ethics Act. This Commission has, in the past, indicated that individuals who serve the Commonwealth in capacities that are generally classified as public employee within the purview of the State Ethics Act, would be required to file regardless of the method in which they are employed. See, Massiah- Jackson, 80 -036. Thus, we believe that you are within the purview of the State Ethics Act, thereby required to file a Statement of Financial Interests in accordance therewith. Mr. Scott McCoy June 30, 1986 Page 6 Conclusion: Based upon the above discussion, we conclude that you are to be considered a "public employee" in your capacity as a Transportation Construction Inspector with the Pennsylvania Department of Transportation. Accordingly, you must file a Statement of Financial Interests for each year in which you hold the position outlined above and for the year following your termi nation of this servi ce. If you have not already done so, a Statement of Finanical Interests must be filed within 15 days of this Advice. This Statement of Financial Interests would report information of the prior calendar year. Please file the original of such a Statement with this Commission to insure compliance with this Advice, provide the yellow copy to your Personnel Office and retain the green copy for your records. 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. JJC /sfd Enclosure Si ncer Jon C ino Ge eral • Counsel