Loading...
HomeMy WebLinkAbout19-521 GladysiewskiPHONE: 717 -783 -1610 TOLL FREE: 1- 800 - 932 -0936 ADVICE OF COUNSEL May 15, 2019 To the Requester: Mr. Todd Gladysiewski Dear Mr. Gladysiewski: FACSIMILE: 717- 787 -0806 WEBSITE: www.ethics.pa.gov 19 -521 This responds to your letter and email received March 17, 2019, by which you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission "). Issue: Whether, as a Medium Voltage Electrician for the Pennsylvania e�partment of Transportation ( "PennDOT ") under job code 94450, you would be considered a "public employee" subject to the Public Official and Employee Ethics Act { "Ethics Act "), 65 Pa.C.S. § 1101 et sec.., and the Regulations of the State Ethics Commission, 51 Pa. Code § 113- et spq., such that upon termination of your employment with PennDOT, the restrictions of Section 1103(8) of the Ethics Act would be applicable to you. Facts: You request an advisory from the Commission based upon submitted facts hat may be fairly summarized as follows. You are currently employed as a Medium Voltage Electrician for PennDOT in the Tunnels Maintenance Office within Engineering District 11. 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 Medium Voltage Electrician (job code 94450) has been obtained and is also incorporated herein by reference. Per your official Commonwealth position description, you perform preventive maintenance and repairs to a wide range of mechanical and electrical equipment, power supply and lighting systems, fire alarm systems, traffic light controls, carbon monoxide analyzing systems, and tunnel ventilation fans. Your duties and responsibilities include the following: • Cleaning and lubricating ventilation fan motors, bearings, damper and drive units and performing associated mechanical repairs, adjustments, and replacement of parts; • Locating and analyzing electrical circuitry faults and defective electrical components by means of interpreting drawings and schematics and through the use of test instruments; Glade 19 -521 Page 2 • Repairing, adjusting, or replacing worn and/or defective components; and • Working on low- voltage control circuits and industrial -rated high - voltage systems, servicing and cleaning tunnel light fixtures, installing electrical devices, fixtures, cables, and conduits, and servicing and maintaining detection and recording devices. Position Description, at 1. Per the job classification specifications under job code 94450, a Medium Voltage Electrician: • Performs a variety of skilled duties operating and maintaining electrical power distribution systems and associated equipment within a certain voltage range; • Cleans, tests, adjusts, repairs, and replaces electrical control equipment such as air and oil circuit breakers, switchgears, transformers, cables, generators, and synchronous motors; • Maintains effective operation of generators, synchronous motors, and motor generators using electrical and mechanical tools and testing instruments; • Makes emergency cutouts using switchgear in the event of breakdowns or for necessary repairs; • Operates a medium voltage substation utilizing status board, relays, switches, and breakers and checks and interprets substation instrument readings and takes corrective action as necessary; • Monitors power distribution switchboards and prepares and interprets logs and reports reflecting power production, consumption, and operating conditions; • Installs, troubleshoots and maintains airport runway lighting systems; • Changes, connects, disconnects, parallels, or affects substitutions for electrical equipment and conductors, using the switchgear mode of operation; • Reads blueprints to trace routing of electrical cables and reads schematic diagrams to determine and resolve electrical system problems; • Inspects and maintains tunnel carbon monoxide analyzing and recording equipment, ventilating fans, fire alarm systems, truck over height alarms, traffic control lights, and tunnel lighting systems; • Complies with legal, procedural, safety, and recordkeeping requirements for electrical work; and • Operates a lift truck or bucket lift truck to make electrical repairs on highway and sign lighting. Job Classification Specifications, Job Code 94450, at 1 -2. You are considering a new job opportunity as a private consultant inspector. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you following termination of your employment with PennDOT. In GIadM 19 19 -521 Page 3 15 2 200 particular, you ask whether you would be permitted to inspect PennDOT projects as a private consultant inspector. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of e 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 thaf 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. In responding to your inquiry, the threshold question to be addressed is whether, in your current position as a Medium Voltage Electrician with PennDOT, you would be considered a "public employee" subject to the Ethics Act. 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 nonministerial nature with regard to: ill 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. G[ad1 19 -521 Page 4 (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. (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 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: Glad siewski, 19 -521 May al Page 5 (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 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 Medium Voltage Electrician 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. § 1103(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 Medium Voltagge Electrician with PennDOT and would not restrict you with regard to inspecting PennDOT projects as a private consultant inspector. Gaad5ki 19 -521 Page 6 The only provision of the Ethics Act that applies to you is Section 11 03(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 officiallpublic employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment 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 Medium oltage Electrician with the Pennsylvania Department of Transportation ( "PennDOT ") under job code 94450, you are not to be considered a "public employee" as that term is defined by the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seg. Consequently, Section 1103(g) of the Ethics Act would not be applicable to you upon termination of your employment as a Medium Voltage Electrician with PennDOT and would not restrict you with regard to inspecting PennDOT projects as a private consultant inspector. 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(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 writingg and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 59 Pa. Code § 93.2(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. Sincerely, n�--M T Robin M. Hittie Chief Counsel