HomeMy WebLinkAbout90-555 MasterMr. Mark A. Master
R.D. #1, Box 197
Cranberry, PA 16319
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
May 25, 1990
90 -555
Re: Motor Carrier Enforcement Officer I; Public Employee; FIS
Dear Mr. Master:
This responds to your letter of April 11, 1990 or Financial
Interest disclosure appeal, which will be treated as a request for
advice from the State Ethics Commission.
Issue: You ask whether in your capacity as a Motor Carrier
Enforcement Officer I with the Pennsylvania Department of
Transportation, hereinafter PennDot, you are to be considered a
"public employee" as that term is defined in the Public Official and
Employee Ethics Law, and therefore, whether you are required to file
a Statement of Financial Interests.
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 Ethics Law 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:
"This is technical safety inspection and enforcement work
in the motor carrier size, weight, safety inspection, and
enforcement programs. An employee in this class, at the
direction of lead worker, conducts technical safety
inspections of motor carriers and upon determination of
violations, initiates the enforcement action as directed
by state and Federal rules and regulations. The employee
also measures and weighs motor carriers; load's,
transports, unloads, places, and adjusts portable weighing
scales; directs the placement of motor carrier on scales
and records the weight; and testifies to duties performed
Mr. Mark A. Master
Page 2
at judicial hearings. Work is reviewed by a Motor Carrier
Enforcement Supervisor."
You however argue that you work in the Bureau of Maintenance
and Operations and work side -by -side with Pennsylvania State
Troopers who do not have to file the forms. In addition you note
that your basic job responsibilities including weighing motor
vehicles which amounts to eighty percent of your work and inspecting
motor carrier vehicles which comprises the other twenty percent of
your job time.
Discussion: The question to be answered is whether you, in your
capacity as a Motor Carrier Enforcement Officer I for PennDot, are
to be considered a "public employee." The Ethics Law 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. 65 P.S. 402.
"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):
Mr. Mark A. Master
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 final technical
recommendations; and
( -b -)
actions:
( -1 -)
recurring
whose recommendations or
are an inherent and
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. Mark A. Master
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 employees.
(A) City clerks, other clerical
staff, road masters, secretaries,
police officers, welfare case
workers, maintenance workers,
construction workers, detectives,
equipment operators, and recreation
directors.
(B) Law clerks, court criers, court
Mr. Mark A. Master
Page 5
reporters, probation officers,
security guards, and writ servers.
(C) School teachers and clerk 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 job description
and/or classification specifications, 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 Phillips v. State
Ethics Commission, 79 Pa. Cmwlth. 491, 470 A.2d 659 (1984); and
Iummau 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 Law 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 must conclude that you re a
"public employee" subject to the financial reporting and disclosure
requirements of the State Ethics Act.
It is clear that in your capacity as a Motor Carrier
Enforcement Officer I, you have the ability to recommend official
action with respect to subparagraph 4 within the definition of
"public employee" as set forth in the Ethics Law, 65 P.S. 402.
Specifically, the job classification specification indicates that
you measure and weigh motor vehicles, adjust the weight scales and
records weight, testify at judicial hearing, conduct technical
safety inspections and make determinations of violations and
initiate enforcement actions. These activities fall within the
definition of public employee as contained in the regulations of the
Commission in Section 1.1, subparagraph B I (a) . 51 Pa. Code 1.1.
Under these circumstances and given your duties and responsibilities
as outlined above, you are a "public employee" as that term is
defined in the Ethics Law.
Conclusion: You are to be considered a "public employee" in your
capacity as a Motor Carrier Enforcement Officer I with PennDot.
Accordingly, you must file a Statement of Financial Interests for
each year in which you hold the position outlined above and fgr the
year following your termination of this service.
Mr. Mark A. Master
Page 6
If you have not already done so, a Statement of Financial
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 in writing and must be received at
the Commission within 15 days of the date of this Advice pursuant to
51 Pa. Code 2.12.
Sincerely,
�.St�1r1
Vincent J. Dopko
Chief Counsel