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HomeMy WebLinkAbout99-568 RichKenneth V. Rich PO Box 107 Robinson, PA 15949 Dear Mr. Rich: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 July 2, 1999 ADVICE OF COUNSEL FAX: (717) 787 -0806 • Web Site: www.ethics.state.Da.us • e -mail: ethics @state.pa.us 99 -568 Re: Public Employee; Section 1103(g); Transportation Community Relations Coordinator 2; PennDOT. This responds to your letters dated May 25, 1999 and June 1, 1999 by which you requested advice from the State Ethics Commission. Issue: Whether as a Transportation Community Relations Coordinator 2 with PennDOT, you are to be considered a "public employee" subject to the Public Official and Employee Ethics Act (the "Ethics Act ") and the Regulations of the State Ethics Commission, and particularly, the restrictions of Section 1 103(g) following termination of your service with PennDOT. Facts: You seek a determination as to whether, in your capacity as a Transportation Community Relations Coordinator 2 in Engineering District 10 of PennDOT, you are a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. §1102; 51 Pa. Code § 1 1.1. You specifically question whether, following termination of your service with PennDOT, you will be subject to the restrictions of Section 1103(g) of the Ethics Act, which apply to former public officials and former employees. It is your view that you should not be subject to the Section 1103(g) restrictions. You state that in your position with PennDOT, you are not required to file a Statement of Financial Interests Form. You state that you do not set policy, and that you are not involved in awarding contracts to consultants or contractors or any other cash flow matters. You are responsible for coordinating informational programs to the host of publics served including the news media, legislators, the general public and internal employees. Such programs include the use of press releases, public plans displays, public meetings, outreach visits, assembly of informational display boards and newsletters. You state that you also function in a customer service capacity, fielding customer complaints and inquiries and trying to satisfy them. You have submitted a copy of your job description, which is incorporated herein by reference. When asked to clarify or explain the portion of your job description which states that you "promote investment package opportunities in the services we are providing," you explained that such phrase in your job description pertains to Act Bich, 99 -568 July 2, 1999 Page 2 3 of the General Assembly of 1997, which increased the gasoline tax and registration fees to generate additional revenues for transportation improvements. That line within your job description refers to your duty to write press releases and "get the word out" about the host of roadway improvements that are resulting each year thanks to the revenue increases (also referred to as the investment package). You state that you are considering _ Leaving PennDOT to accept a position as a Senior Public Involvement Specialist with an engineering /consulting firm that provides public involvement services for PennDOT, the Pennsylvania Turnpike Commission, local municipalities and other states. The responsibilities of your new position in the private sector would include ensuring adequate staffing for public meetings, public plans displays, establishment of community advisory committees and the publication of notices /announcements to inform the public of involvement activities for road and bridge engineering and design projects. You would also help to facilitate such meetings and would be responsible for keeping accurate records and meeting minutes to ensure sufficiency of technical files that document public involvement as part of project development. Based upon all of the above, you seek an advisory as to whether you would be subject to the Section 1 103(g) restrictions upon leaving PennDOT. Discussion: The answer to the question of whether you would be subject to Section 1 103(g) upon your departure from PennDOT hinges upon whether in your position with PennDOT, you are a "public employee" as defined in the Ethics Act. The Ethics Act defines the term "public employee" as follows: 65 Pa.C.S. §1102. Section 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: (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. The term shall not include individuals who are employed by this Commonwealth 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: (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of "public employe ": Rich, 99 -568 July 2, 1999 Page 3 (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. (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, Rich, 99 -568 July 2, 1999 Page 4 51 Pa. Code § 1 1.1. 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. 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 Transportation Community Relations Coordinator 2, you are not to be considered a "public employee" as that term is defined in the Ethics Act. 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 Act's definition of the term "public employee." Thus, you are not subject to the disclosure requirements of the Ethics Act, you are not required to file Statements of Financial Interests, and upon your departure from PennDOT, you will not be subject to Section 1 103(g) of the Ethics Act. The only provisions of the Ethics Act which apply to you are Sections 1 103(b) and 1103(c) which apply to everyone. For your information, Sections 1103(b) and 1103(c) of the Ethics Act 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 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: In your capacity as a Transportation Community Relations Coordinator 2 with PennDOT, you are not to be considered a "public employee" as that term is defined by the Public Official and Employee Ethics Act ( "Ethics Act "). Accordingly, in that capacity, you are not required to file Statements of Financial Interests. Upon termination of service with PennDOT, you will not be subject to Section 1 103(g) of the Ethics Act. Sections 1 103(b) and 1 103(c) of the Ethics Act apply to everyone. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Rich, 99 -568 July 2, 1999 Page 5 Pursuant to Section 1107(11), 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 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. cerely, incent . Dopko Chief Counsel