HomeMy WebLinkAbout91-589 KellyMr. Robert L. Kelly
238 Haldeman Avenue
New Cumberland, PA 17070
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
October 2, 1991
Re: Personnel Analyst 3; PennDOT; Public Employee; FIS
Dear Mr. Kelly:
91 -589
This responds to your undated letter in which you requested
advice from the State Ethics Commission.
Issue: You ask whether in your capacity as a Personnel Analyst 3 in
the Training Division of the Commonwealth of 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.
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 is
responsible for planning, developing, implementing, coordinating,
promoting, and evaluating staff development programs which are
designed to meet specific needs of the Department /individual
employees. More specifically, your job description indicates that
you plan, develop, promote /coordinate development and implementation
of a variety of technical training programs and technical resources
in the construction and maintenance categories, such as Work Zone
Traffic Control, Maintenance Training, Bridge Maintenance Training,
Construction Inspector Training and Employee and Equipment Safety,
primarily in a video format. You provide, on a quarterly basis, a
post -audit review of Out- Service Training involving Department
personnel. You evaluate programs through end -of- course
instruments, field visits, and review of Participant Action Plans to
determine whether individual /organizational needs are met, as well
as to determine the, of program and instructions. You
Mr. Robert L. Kelly
October 2, 1991
Page 2
develop plans and methods to incorporate new materials and
suggestions into programs and revise as necessary to keep abreast of
the Department's changing needs. Additionally, you produce and
accomplish a self - development plan to keep current with knowledge,
skill and technologies. With respect to supervision of you, your
job description indicates that your goals are set and achievements
reported at monthly progress reviews. Quarterly MPST reviews are
used to tie in interim actions to overall goal structure. Your
major goals /objectives are negotiated annually with smaller tasks
assigned in writing with discussion as complexity warrants. Your
assignments are received from an administrative supervisor.
Guidance is provided on a routine basis through consultation
sessions, but you exercise independent judgement and actions in
carrying out the production of the video products.
Your position includes such further duties and responsibilities
as set forth more fully in the incorporated job description and job
classification specifications.
Discussion: The question to be answered is whether you, in your
capacity as a Personnel Analyst 3 for PennDOT in the Training
Division, 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 non - ministerial 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. 5402.
"Public employee" shall not include individuals
who are employed by the State or any political
Mr. Robert L. Kelly
October 2, 1991
Page 3
subdivision thereof in teaching as distinguished
from administrative duties. 65 P.S. 5402.
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
( -4 -) makes final technical
recommendations; and
( -b -) whose recommendations or
actions:
( -1 -) are an inherent and
recurring part of his position; and
Mr. Robert L. Kelly
October 2, 1991
Page 4
( -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.
(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,
Mr. Robert L. Kelly
October 2, 1991
Page 5
police officers, welfare case
workers, maintenance workers,
construction workers, detectives,
equipment operators, and recreation
directors.
(B) Law clerks, court criers, court
reporters, probation officers,
security guards, and writ servers.
(C) School teachers and clerk of the
schools. 51 Pa. Code 51.1.
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
Mummau 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 are 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 Personnel Analyst 3 for
PennDOT's Training Division, you have the ability to recommend
official action with respect to subparagraphs 3 and 5 within the
definition of "public employee" as set forth in the Ethics Law, 65
P.S. 5402. Specifically, you are responsible for planning,
developing, promoting /coordinating the development and
implementation of a variety of technical training programs and
technical resources in the construction and maintenance categories,
such as Work Zone Traffic Control, Maintenance Training, Bridge
Maintenance Training, Construction Inspector Training and Employee
and Equipment Safety, primarily in a video format. You provide post
audit reviews of Out- Service Training involving Department
personnel. You evaluate programs through end -of- course instruments,
Mr. Robert L. Kelly
October 2, 1991
Page 6
field visits and review of Participant Action Plans to determine
whether individual /organizational needs are met, as well as to
determine the quality of program and instructions. You develop
plans and methods to incorporate new materials and suggestions into
programs and revise them as necessary to keep abreast of the
Department's changing needs. You produce and accomplish your own
self - development plan to keep current with knowledge, skill and
technologies. Although your assignments are received from an
administrative supervisor and guidance is provided to you on a
routine basis through consultation sessions, you exercise
independent judgement and actions in carrying out the production of
the video products. These activities fall within the definition of
public employee as contained in the regulations of the Commission in
Section 1.1, subparagraphs (A)(3) and (5) and (B)(I) and (II). 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.
Thus, as a "public employee" as defined under the Ethics Law,
you are subject to the provisions of that Law which include, but are
not limited to, the requirement that you file a Statement of
Financial Interests providing full disclosure as required by the
Ethics Law for each year in which you hold the position outlined
above and for the year following your termination of this service.
Should you have further questions regarding the requirements and
restrictions of the Ethics Law as they apply to you, it is
recommended that you seek further advice from this Commission.
Conclusion: You are to be considered a "public employee" as that
term is defined by the Ethics Law, in your capacity as a Personnel
Analyst 3 with PennDOT. Accordingly, you must file a Statement of
Financial Interests for each year in which you hold the position
outlined above and for the year following your termination of this
service.
Pursuant to Section 7(11), 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
Mr. Robert L. Kelly
October 2, 1991
Page 7
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 S2.12.
Very truly yours,
Vincent 7'. Dopko
Chief Counsel