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HomeMy WebLinkAbout18-552 KelleyPHONE: 717- 783 -1610 TOLL FREE: 1 -800 -932 -0936 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