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HomeMy WebLinkAbout96-540 SeilerSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 11, 1996 Judy A. Seiler U.S. Rail, Inc. 2259 Wynonah Drive Auburn, PA 17922 Re: Public Employee /Official, CADD Operator, Highway Drafter, PennDOT. Dear Ms. Seiler: 96 -540 This responds to your letter of March 5, 1996, in which you requested advice from the State Ethics Commission. Issue: Whether a CADD Operator classified as a Highway Drafter with PennDOT is to be considered a public official /public employee subject to the Ethics Law. Facts: As a former employee of PennDOT, you request an advisory from the State Ethics Commission. You state that you were employed by PennDOT for 7 years, until July 21, 1995. Your functional title was "CADD Operator' and your classification title was "Highway Drafter." You state that you drafted the plans that the designers gave to. you, utilizing Computer Aided Drafting. You made simple computations which were then checked by a designer or design supervisor. Copies of your job description, job classification specifications and organizational chart have been obtained from PennDOT and are incorporated herein by reference. Referencing your DBE Certification Affidavit for the Bureau of Equal Opportunity, you state that you have been advised to request a written advisory from the State Ethics Commission. Discussion: The threshold issue is whether in your former capacity as a CADD Operator classified as a Highway Drafter with PennDOT, you would be considered a public official /public employee subject to the Ethics Law. "Public employee" is defined in the Ethics Law as follows: Seiler, 96 -540 April 11, 1996 Page 2 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 minimis nature on the interests of any person. "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. Based upon the definition of "public employee" and in light of the job description, classification specifications, and organizational chart for the position, as well as the facts which you have submitted, in your former position as a CADD Operator classified as a Highway Drafter with PennDOT, you would not be considered a "public employee" as that term is defined in the State Ethics Law. This conclusion is based upon an objective review of the information from which it appears that you were 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 definition listed above for the term "public employee." "Public official" is defined in the Ethics Law as follows: Section 2. Definitions. "Public Official." Any person elected by the public or elected or appointed by a governmental body, or an appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense, or to otherwise exercise the power of the State or any political subdivision thereof. Based upon the definition of "public official" and in light of the functions of your former position, you would not in that capacity be considered a "public official" as that term is defined in the State Ethics Law. Thus, in your former position as a CADD Operator classified as a Highway Drafter with PennDOT, you would neither be considered a public official nor a public Seiler, 96 -540 April 11, 1996 Page 3 employee as those terms are defined in the Ethics Law. The only provisions of the Ethics Law which would apply to restrict you in your post - Commonwealth employment would be Sections 3(b) and 3(c) which apply to everyone. Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Lastly, your inquiry has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: In your former position as a CADD Operator classified as a Highway Drafter with PennDOT, you would not be considered a public official /public employee as defined in the Ethics Law. Accordingly, the only provisions of the Ethics Law which would restrict you in your post - Commonwealth employment are Sections 3(b) and 3(c) which are applicable to everyone. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a forma/ Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this 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 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. erely, incent Dopk Chief Counsel