HomeMy WebLinkAbout86-588 KennedyMr. Ray C. Kennedy
97 N. Third Street
Hughesville, PA 17737
Dear Mr. Kennedy:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
July 24, 1986
ADVICE OF COUNSEL
Re: Civil Engineer II, Pennsylvania Department of Transportation, Public
Employee
86 -588
This responds to your letter of June 12, 1986, in which you requested
advice from the State Ethics Commission.
Issue: You ask whether in your capacity as a Civil Engineer II 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 question whether your activities and functions fall within the
purview of the definition of "public employee" as that phrase is defined in
the State Ethics Act and the regulations of this Commission. In order to
review the question presented, we will briefly outline the duties and
responsibilities associated with your position as contained in your job
description and the classification specifications for this position. Your
duties and responsibilities, as set forth in these two documents are
incorporated herein by reference. An employee in this position performs a
variety of engineering duties associated with the location, design, or
construction of roads, bridges, buildings, or other civil engineering
projects, and with transportation planning, or traffic control of highways.
Work involves independently performing preliminary engineering studies,
conducting location or foundation investigations, preparing plans and
specifications, serving as construction engineer on the less complex projects,
or assisting a higher -level engineer on substantial portions of complex
projects. Emphasis is placed upon the application of a broad knowledge of
engineering principles and practices to varied and comprehensive engineering
projects. Supervision may he exercised over technicians, or inspectors. Work
is assigned with general instructions and ohjectives by a technical supervisor
who provides assistance when difficult problems are encountered and reviews
completed work for adherence to sound engineering practices.
Mr. Ray C. Kennedy
July 24, 1985
Page 2
Additionally, the class specification for a Civil Engineer II include, as
examples of work to be performed by such an individual, the following:
1. participating in the collection, validation, analysis and projection
of multi -modal transportation planning data including assisting in
developing alternative transportation plans;
2. serving as a construction engineer for the less complex roadways,
bridges, buildings, and other civil engineering projects undertaken
by PennDot, including checking contractor's work for compliance with
contract stipulations and specifications, assigning inspection of
sections of projects to assistants, and making changes in design as
indicated by on -site conditions;
3. performing preliminary highway location studies for less complex
projects by determining probable line through the use of photographs,
geological survey datai and field inspection and investigation
information; and
4. reviewing highway design plans for less complex projects in order to
insure proper and effective traffic control.
Discussion: As set forth above, the question to be answered here is clear.
Specifically, are you, in your capacity as a Civil Engineer II 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 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.
Mr. Ray C. Kennedy
July 24, 1986
Page 3
"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.
The regulations of the State Ethics Commission similarly define the term
public employee as above and also set forth that the term includes any
individual:
(B) `who meets the criteria of either subclause
(I) or (II):
(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
Mr. Ray C. Kennedy
July 24, 1986
Page 4
( -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 tens does not include individuals
who are employed by the Commonwealth or a political
subdivision of the Commonwealth in teaching as
distinguished from administrative duties.
(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.
Mr. Ray C. Kennedy
July 24, 1986
Page 5
(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.
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 appeal, 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.O. 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 definition of "public employee" 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 Civil Engineer II, you have the
ability to recommend official action with respect to subparagraph 4 and 5
within the definition of "public employee" as set forth in the Ethics Act, 65
P.S. 402. Specifically, your class specification and your job description
both indicate a degree of independence in performing engineering studies and
conducting location investigations that are not necessarily limited to or
mandated by regulations or requirements so as to preclude your exercise of
independent judgment and authority. In the performance of any such study,
your evaluation and reporting process must, as of necessity, entail the
exercise of judgment which produces a recommendation regarding the degree to
which a particular designer's forms or proposals are in conformity with
Mr. Ray C. Kennedy
July 24, 1986
Page 6
mandates. These activities fall within the definition of public employee as
contained in the regulations of t ^e Commission 51 Pa. Code 1.1. Under these
circumstances and given your duties and responsibilities as outlined above, we
must conclude that you are a "publi: employee" as that term is defined in the
State Ethics Act. In addition, the Commission has previously reviewed the
exact issue which you are now presenting on your appeal. Specifically, in
Montgomery, 84 -004, the State Ethics Commission determined that a Civil
Engineer II serving with the Department of Transportation was a public
employee within the purview of the State Ethics Act, therefore, required to
file the Statement of Financial :nterests. It is clear that this Commission's
opinion is dispositive of the instant situation.
Conclusion: Based upon the above discussion, we conclude that you are to be
considered a "public employee" in your capacity as a Civil Engineer II 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 f oliowing your termination of this service.
Or
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 :o ,our Personnel Office and retain the green
copy for your records. SDABP
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 recora and will be made available as such.
Finally, i f you disagree th thi s Advice or i f you have any reason to
challenge same, you may request t`,st the full Commission review this Advice. A
personal appearance before the Commission will be scheduled and a formal
Opinion from the Commission wil; to issued. Any such appeal must be made, in
writing, to the Commission within L5 days of service of this Advice pursuant
to 51 Pa. Code 2.12.
Si nc
am J.
Genera ounsel