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To the Requester:
Ms. Autumn Kelley
Dear Ms. Kelley:
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120 -0400
ADVICE OF COUNSEL
August 30, 2018
FACSIMILE: 717- 787 -0806
WEBSITE: WWWAhics.pa.gov
This responds to your letter dated August 2, 2018, by which you requested an
advisory from the Pennsylvania State Ethics Commission ( "Commission ").
Issue: Whether, as a District Environmental Specialist for the Pennsylvania
Department of Transportation ( "PennDOT "), ou would be considered a "Public
employee" subJ'ect to the Public Official and Employee Ethics Act ( "Ethics Act'), 65
Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa.
Code § 11.1 et se q., such that: (1) you would be required to file Statements of Financial
Interests; and- (2-}upon termination of your employment with PennDOT, the restrictions
of Section 110 (g) of the Ethics Act would be applicable to you.
Facts: You seek a determination as to whether, in your capacity as a District
nvironmental Specialist with PennDOT under job code 28419, you are a "Public
employee" subject to the Ethics Act and the Regulations of the State Ethics
Commission, 51 Pa. Code § 11.1 et seg. You specificall question: (1) whether you are
required to file Statements of Financial Interests; and (2� whether the Ethics Act would
impose prohibitions or restrictions upon you following termination of your employment
with PennDOT.
You have submitted a copy of your official Commonwealth position description,
which is incorporated herein by reference. A copy of the job classification specifications
for the position of District Environmental Specialist (job code 28419) has been obtained
and is also incorporated herein by reference.
Per your official Commonwealth position description, you manage the
environmental clearance processes for District 1 -0 projects. Your duties and
responsibilities include the following:
• Supporting PennDOT's Strategic Agenda by working to accomplish District
Business Plan goals and objectives and developing action plans as needed;
• Attending scoping field views, providing data collection and documentation in
support of Categorical Exclusion preparation, ensuring adherence to project
schedules, and supervising Environmental Management Assistants,
Kelle , 18 -552
August 30, 2018
Page 2
• Developing andlor maintaining a filing system for environmental records for
current and past projects and reviewing, as necessary, information submitted by
outside groups, individuals, and agencies for potential impacts on
Commonwealth property within the District limits;
• Providing input into project schedule development as it relates to the
environmental clearance portion of the design process and managing the
environmental clearance processes for all District 1-0 projects to meet the
established ASTA milestone dates; and
• Overseeing and/or participating in the delineation of wetlands as needed for
project development and pursuing development of wetland banking sites within
the major watersheds within the District.
Position Description, at 1 -2.
Per the job classification specifications under job code 28419, in conjunction with
local, regional, state, and federal programs, a District Environmental Specialist provides
for the proper enforcement of environmental laws, plans, policies, and procedures
during highway and transportation improvement project planning, design, construction,
and maintenance phases. Examples of work performed by a District Environmental
Specialist include:
• Preparing and administering consultant contracts,
• Reviewing transportation plans, programs and projects for consistency with
environmental laws, regulations, policies and procedures;
• Developing and implementing District environmental policies and procedures;
• Determining the scope and schedule for environmental and related engineering
analyses;
• Reviewing consultant technical and cost proposals;
• Developing priorities and schedules for environmental clearances so that District
ttin
leg schedules can be met;
• Reviewing proposed environmental laws and regulations for possible impact on
agency objectives;
• Performing environmental analyses and preparing environmental reports;
• Approving /rejecting environmental clearance documents;
• Overseeing the design and construction of environmental mitigation measures;
• Supervising and/or conducting research on innovative environmental analysis
and impact mitigation measures; and
• Inspecting construction and maintenance operations for compliance with
environmental laws and regulations.
Job Classification Specifications, Job Code 28419, at 1 -2.
Discussion: It is initial noted that pursuant to Sections '1107(10) and 1107(11) of
Me�ElhicAct, 65 Pa.C.S. �§ 1107(10), (11), advisories are issued to the requester
Kelley, 18 -552
August 30, 2018
Page 3
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 truthfully disclosed all of the material facts.
The Ethics Act defines the term "public employee" as follows:
§ 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 nonmfnisterial
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 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 office.
(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.
Kel1e , 18 -552
August 30, 2018
Page 4
(F) 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.
(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
actin 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.
Kelley, 18 -552
August 30, 2018
Page 5
(C) School teachers and clerks of the schools.
51 Pa. Code § 11.1.
The following terms 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
of the persons 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.
Status as a "public employee" subject to the Ethics Act is determined by an
objective test. The objective test applies the Ethics Act's definition of the term "public
employee" and the related regulatory criteria to the powers and duties of the position
itself. Typically, the powers and duties of the position are established by objective
sources that define the position, such as the job description, job classification
specifications, and organizational chart. The objective test considers what an individual
has the authority to do in a given position based upon these objective sources, rather
than the variable functions that the individual may actually perform in the position. See,
Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion
04 -002; ienvo pinion 04-001; Shearer, Opinion 03 -011. The Commonwealth Court
of Penn sy v—I ania has sppecifically considered and approved this Commission's objective
test and has directed Tat coverage under the Ethics Act be construed broadly and that
exclusions under the Ethics .Act be construed narrowly. See, Qua lia v. State Ethics
Commission, 986 A.2d 974 (Pa. Cmwlth. 2010), amended b
Y, 2 a. Commw. LEXIS
8 Pa. CmwIth. January 5, 2010), allocatur den e'e, 607 Pa. 708, 4 A.3d 1056 (Pa.
2010); Phillips, supra.
The first portion of the statutory definition of "public employee" includes
individuals with authority to take or recommend official action of a nonministerial nature.
65 Pa.C.S. § 1102. Likewise, the regulatory criteria for determining tatus as a public
employee, as set forth in 51 Pa. Code § 11.1 ("public employee ")(ii), include not only
individuals with authority to make final decisions but also individua s with authority to
forward or stop recommendations from being sent to final decision - makers; individuals
who prepare or supervise the preparation of final recommendations; individuals who
make final technical recommendations; and individuals whose recommendations are an
inherent and recurring part of their positions. See, ,ems., Reese /Gilliland, Opinion 05-
005.
In applying the objective test in the instant matter, the necessary conclusion is
that in your capacity as a District Environmental Specialist for PennDOT under job code
28419, yyou are a "public employee" subject to the Ethics Act and the Regulations of the
State Encs Commission.
It is clear that as a District Environmental Specialist for PennDOT under job code
28419, you have the ability to take or recommend official action of a nonministeriai
nature with respect to subparagraph (5 within the definition of "public employee" as set
forth in the Ethics Act, 65 Pa.C.S. � 1102. Specifically, the following duties and
authority set forth in the official Position Description and the job classification
Kel�le , 18 -552
August 30, 2018
Page 6
specifications under job code 28419 would be sufficient to establish your status as a
"public employee" subject to the Ethics Act:
• Supervising Environmental Management Assistants;
Overseeing and/or participating in the delineation of wetlands as needed for
project development and pursuing development of wetland banking sites within
the major watersheds within the District;
• Preparing and administering consultant contracts;
• Reviewing transportation plans, programs and projects for consistency with
environmental laws, regulations, policies and procedures;
• Developing and implementing District environmental policies and procedures;
• Reviewing consultant technical and cost proposals;
• Approving /rejecting environmental clearance documents;
• Overseeing the design and construction of environmental mitigation measures;
and
• Inspecting construction and maintenance operations for compliance with
environmental laws and regulations.
The foregoing duties /authority would also meet the criteria for determining status
as a public employee under the Regulations of the State Ethics Commission, specifically
at 51 Pa. Code § 11. 1, "public employee," subparagraphs (i) and (ii).
Having determined that as a District Environmental Specialist for PennDOT
under job code 28419, you are a public employee subject to the provisions of the Ethics
Act and the Regulations of the State Ethics Commission, you are advised that you are
required to file Statements of Financial Interests pursuant to the Ethics Act. The Ethics
Act requires that a public employee file a Statement of Financial Interests by May 1
each year that he holds the public position and the year after he leaves it. 65 Pa.C.S. §
1104(a).
You are further advised that upon termination of your employment with
PennDOT, you would become a "former public employee" subject to Section 1103(g) of
the Ethics Act.
While Section 1103(g) does not prohibit a former public official /public employee
from accepting a position of employment, it does restrict the former public official /public
employee with regard to "representing" a "person" before "the governmental body with
which he has been associated ":
§ 1103. Restricted activities
(g) Former official or employee. - -No former public
official or public employee shall represent a er�son, with
promised or actual compensation, on any matter before the
governmental body with which he has been associated Tor
one year after he leaves that body.
65 Pa.C.S. § 1103(g) (Emphasis added).
�Kelley, 18 -552
must 30, 2018
Page 7
The terms "represent," "person," and "governmental body with which a public
official or public employee is or has been associated" are specifically defined in the
Ethics Act as follows:
§ 1102. Definitions
"Represent." To act on behalf of any other person in
any activity which includes, but is not limited to, the
following: personal appearances, negotiations, lobbying and
submittingg bid or contract proposals which are signed by or
contain tre name of a former public official or public
employee.
"Person." A business, governmental body,
individual, corporation, union, association, firm, partnership,
committee, club or other organization or group of persons.
"Governmental body with which a public official
or public employee is or has been associated." The
governmental body within State government or a political
subdivision by which the public official or employee is or has
been employed or to which the public officiator employee is
or has been appointed or elected and subdivisions and
offices within that governmental body.
65 Pa.C.S. § 1102.
The term "person" is very broadly defined. It includes, inter alia, corporations and
other businesses. It also includes the former public officia p_b if c employee himself,
Confidential Opinion, 93 --005, as well as a new governmental employer. Ledebur,
pinion 95 -007
The term "represent" is also broadly defined to prohibit acting on behalf of any
person in pany activity. Examples of prohibited representation include: �1) personal
appearances before the former governmental body or bodies; (2) attempts o influence;
(3) submission of bid or contract proposals which are signed by or contain the name of
the former public official/public employee; (4) participating in any matters before the
former governmental body as to acting on behalf of a person; and (5) lobbying.
Popovich, Opinion 89 -005.
Listing one's name as the person who will provide technical assistance on a
proposal, document, or bid, if submitted to or reviewed by the former governmental
body, constitutes an attempt to influence the former governmental body. Section
1103(8g) also generally prohibits the inclusion of the name of a former public
nfficiallpubfic employee on invoices submitted by his new employer to the former
governmental body, even if the invoices pertain to a contract that existed prior to
termination of service with such governmental body. Shay, Opinion 91 -092. However,
if such a pre - existing contract does not involve the unit where a former public employee
worked, the name of the former public employee may appear on routine invoices if
required by the regulations of the agency to which the billing is being submitted.
AbramslWebster, Opinion 95 -011.
A former public official/public employee may assist in the preparation of any
documents presented to his former governmental body. However, the former public
official/public employee may not be identified on documents submitted to the former
governmental body. The former public official/public employee may also counsel any
person regarding that person `s ap earance before his former governmental body. Once
again, however, the activity in this respect should not be revealed to the former
KKellee , 18 -552
August 30, 2018
Page 8
governmental body. The Ethics Act would not prohibit or preclude making general
informational inquiries to the former governmental body to secure information which is
available to the general public, but this must not be done in an effort to indirectly
influence the former governmental body or to otherwise make known to that body the
representation of, or work for, the new employer.
Section 1103(g) only restricts the former public official /public employee with
regard to representation before his former governmental body. The former public official/
public employee is not restricted as to representation before other agencies or entities.
However, the "governmental body with which a public officiallpublic employee is or has
been associated" is not limited to the particular subdivision of the agency or other
governmental body where the public official/public employee had influence or control
but extends to the entire body. See, Legislative Journal of House, 1989 Session, No.
15 at 290, 291; Sirolli, Opinion 9CF--006;-Sharp, Opinion 90-009-R.
The governmental body with which you would be deemed to have been
associated upon termination of your employment with PennDOT would be PennDOT in
its entirety, including but not limited to District 1 -0. Therefore, for the first year following
termination of your employment with PennDOT, Section 1103 of the Ethics Act would
apply and restrict "representation" of a "person" before Penn❑
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: As a District Environmental Specialist for the Pennsylvania
epa men of Transportation ( "PennDOT ") under ob code 28419, you are a `public
emplo yyee" subject to the Public Official and Employee Ethics Act ( "Ethics Act'), 65
Pa.C.S. § 1101 et se ., and the Regulations of the State Ethics Commission, 51 Pa.
Code § 11.1 et se . %u are required to file Statements of Financial Interests pursuant
to the Ethics Act. Upon termination of your employment with PennDOT, you would
become a "former public employee" subject to the restrictions of Section 1103(g) of the
Ethics Act. The former governmental body would be PennDOT in its entirety, including
but not limited to District 1 -0. For the first year following termination of your employment
with PennDOT, Section 1103 () of the Ethics Act would apply and restrict
"representation" of a "person" before PennDOT. The restrictions as to representation
outlined above must be followed. Lastly, the propriety of the proposed conduct has only
been addressed under the Ethics Act.
Pursuant to Section 1107(11) 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 actual!
received at the Commission within thirty (30) days of the date of this
Kelle , 18 -552
August 30, 2018
Page 9
Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be
received at the Commission by hand delivery, United States mail,
delivery service, or by FAX transmission (717- 787 - 4806). Failure to
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
Robin M. Hittie
Chief Counsel