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Home My WebLink About98-568 MerrillDeborah Merrill 887 Memorial Ave. Williamsport, PA 17701 Dear Ms. Merrill: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 15, 1998 98 -568 Re: Former Public Employee; Section 3(g); Roadway Program Technician I; PennDOT. This responds to your letter of May 19, 1998 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon employment of a Roadway Program Technician following termination of service with the Commonwealth of Pennsylvania, Department of Transportation. Facts: You have served for the last four years as a temporary employee with the Pennsylvania Department of Transportation (PennDOT) in District 3 -0. Your term of employment ended on April 17, 1998. Your duties with PennDOT involved inputting pavement history under the supervision of the RMS Coordinator, who had control over and responsibility for your work. At no time were you involved with the selection of consultants working with PennDOT. You have accepted a position of employment with an engineering consultant in the City of Williamsport. This firm currently has engineering contracts with PennDOT and has done engineering work for municipalities, PennDOT and other state and federal agencies, much of it utilizing monies from state liquid fuel funds, federal and various state and local programs. You ask for an advisory from the State Ethics Commission regarding your work for your new employer. Specifically, you ask: 1) whether you may market and offer your services to PennDOT outside of District 3 -0; 2) what restrictions exist for you in District 3 -0; 3) what restrictions might exist for you in working with municipalities utilizing federal highway funds, state funds or liquid fuel funds either within or outside of District 3 -0; and 4) whether there are limitations on your offering your services to other state or local agencies either within or outside of District 3 -0. Merrill, 98 -568 June 15, 1998 Page 2 Discussion: The Ethics Law defines the term "public employee" as follows: 65 P.S. §402. 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 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. The regulations of the State Ethics Commission similarly define the term "public employee" and set forth the following additional criteria: (11) 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. (F) The individual prepares or supervises the preparation of final recommendations. (G) The individual makes final technical recommendations. (H) The individual's recommendations or actions are an inherent and recurring part of his position. (I) The individual's recommendations or actions affect organizations other than his own organization. Merrill, 98 -568 June 15, 1998 Page 3 (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: (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 § 1 1.1. In applying the definition of "public employee" and the related regulatory criteria to the functions of your position, the necessary conclusion is that in your capacity as a Roadway Program Technician I, you are not to be considered a "public employee" as that term is defined in the Ethics Law. Based upon an objective review, 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 Law's definition of the term "public employee." Thus, you are not subject to Section 3(g) of the Ethics Law which imposes certain restrictions upon former public officials /employees. Merrill, 98 -568 June 15, 1998 Page 4 The only provisions of the Ethics Law which apply to you are Sections 3(b) and 3(c) which apply to everyone. For your information, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /public employee anything of monetary value and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement 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 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. Conclusion: In your capacity as a Roadway Program Technician I with PennDOT, you are not to be considered a "public employee" as that term is defined by the Public Official and Employee Ethics Law ( "Ethics Law "). Accordingly, in that capacity, you are not subject to Section 3(g) of the Ethics Law. Sections 3(b) and 3(c) of the Ethics Law apply to everyone. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(1 1), 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 formal 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. VincentDop Chief Counsel