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HomeMy WebLinkAbout20-524 MarlowePHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethigLpi.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL April 20, 2020 To the Requester: Mr. Daniel Marlowe Dear Mr. Marlowe: 20-524 This responds to your undated letter received April 9, 2020, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"). Issue: Whether, in your former capacity as a Bridge and Structural Drafter for the 7e—nnsylvania Department of Transportation ("PennDOT") under J'ob code 10780, you would be considered a "public employee" subject to the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et se=c.., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et sec.., such that the restrictions of Section 1103(g) of the Ethics Act would now be applicable to you. Facts: You request an advisory from the Commission based upon submitted facts tFa—t—may be fairly summarized as follows. In September 2019 you resigned from your employment as a Bridge and Structural Drafter for PennDOT in the District 11 (Bridgeville) Engineering Office. You have submitted a copy of your official Commonwealth position description, which document is incorporated herein by reference. A copy of the job classification specifications for the position of Bridge and Structural Drafter (job code 10780) has been obtained and is also incorporated herein by reference. Per your official Commonwealth position description, you prepared plans of non- complex structures to be reviewed by a designer or engineer. Your duties and responsibilities included the following: • Using existing plans and BRADD output to develop structure plans for rehabilitation, preservation and full replacement projects, including showing existing and proposed work for certain types of structures; • Operating a CADD machine; • Using Microstation to prepare various types of plan sets; • Drafting core borings from field boring logs; Marlowe, 20-524 April 20, 2020 Page 2 • Drafting erosion and sedimentation control plans; • Checking final drawings and computations of other draftsmen; • Preparing quantity computations of structure items for structure plan sets; • Preparing construction cost estimates for structure plans; and • Aiding in the preparation of hydrologic and hydraulic reports. Position Description, at 1-2. Per the job classification specifications under job code 10780, a Bridge and Structural Drafter performs technical duties which follow prescribed methods and procedures and involve the application of basic technical skills and techniques with professional guidance from higher level technical employees. Examples of work include: • Assisting in the preparation of bridge and structural plans from field survey notes; • Performing all drafting and detailing work associated with the development and preparation of bridge and structural plans from preliminary sketches to final detailed working plans; • Preparing portions of plans for bridge and structural projects such as fixtures, equipment, beams, connections, and foundations; • Plotting alignment of structures, topography, and profiles; detailing abutments, piers, culverts, arches, and retaining walls; plotting and calculating drainage areas and waterway profiles; and drawing structures to scale on plans with professional and technical guidance; • Reviewing bridge and structural plan drawings to ensure proper drafting procedures were applied, checking various quantity calculations, and redrafting plans to correct possible problems with professional or technical guidance; • Performing mathematical calculations necessary to compute quantities of materials and performing horizontal vertical bridge geometry computations and other technical location and quantity computations with professional and technical guidance; • Detailing structures such as reinforced concrete box culverts, simple span settle (- beam bridges, and metal plate culverts and detailing final bridge plans from a designer's preliminary sketches on bridge design or bridge rehabilitation projects; • Performing tasks in applying and interpreting survey notes, aerial photographs, and engineering data; • Participating in field trips to assist in making measurements and sketches; and • Inspecting bridge structural members, foundations, supports and components under the direction of engineers, inspectors, or higher -level technicians. Job Classification Specifications, Job Code 10780, at 1-2. You are considering an op ortunity for employment as an inspector for a firm rm named "Michael Baker" ("the Fi"f Marlowe, 20-524 April 20, 2020 Page 3 You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you following termination of your employment with PennDOT. In particular, you ask whether you would be permitted to inspect PennDOT projects as an inspector for the Firm. Discussion: It is initially noted that pursuant to Sections 1107(10) and 11 07(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. In responding to your inquiry, the threshold question to be addressed is whether, in your former capacity as a Bridge and Structural Drafter with PennDOT, you would be considered a "public employee" subject to the Ethics Act. The Ethics Act defines the term "public employee" as follows: § 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: Ill 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. 65 Pa.C.S. § 1102. 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": (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. Marlowe, 20-524 April 20, 2020 Page 4 (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 recommen- dations. (H) The individual's recommendations or actions are an inherent and recurring part of his position. (1) 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, 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: Marlowe, 20-524 April 20, 2020 Page 5 (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 § 11.1. The following terms are relevant to your inquiry and are defined in the Ethics Act as follows: § 1102. Definitions "Ministerial action." An action that a person performs in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of the person's own judgment as to the desirability of the action being taken. "Nonministerial actions." An action in which the person exercises his own judgment as to the desirability of the action taken. 65 Pa.C.S. § 1102. In applying the definition of "public employee" and the related regulatory criteria to the submitted facts as to the duties of your current position, the necessary conclusion is that in your former capacity as a Bridge and Structural Drafter with PennDOT under job code 10780, you would not be considered a "public employee" as that term is defined in the Ethics Act. Based upon an objective review of the official position description and the job classification specifications, 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 Ethics Act's definition of the term "public employee.' In this regard, it is specifically noted that any inspection functions would have been performed as ministerial tasks under the direction of engineers, inspectors, or higher -level technicians. The post -employment restrictions of Section 1103(g) of the Ethics Act only apply to former public officials/public employees: § 1103. Restricted activities (g) Former official or employee. --No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 Pa.C.S. § 1103(g). Because the duties and responsibilities of your former position would not bringyou within the definition of "public employee" as set forth in the Ethics Act, Section 1103(g) of the Ethics Act would not apply to restrict you now and would not restrict you with regard to inspecting PennDOT projects as an inspector for the Firm. The only provision of the Ethics Act that applies to you is Section 1103(b), which applies to everyone. For your information, Sections 1103(b) and 1103(c) of the Ethics Marlowe, 20-524 April 20, 2020 Page 6 Act provide in part that no person shall offer or give 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 judgment 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: Based upon the submitted facts, in your former capacity as a Bridge and Structural Drafter with the Pennsylvania Department of Transportation ("PennDOT") under job code 10780, you would not be considered a "public employee" as that term is defined by the Public Official and Employee Ethics Act ('Ethics Act"), 65 Pa.C.S. § 1101 et sec Consequently, Section 1103(g) of the Ethics Act —which imposes restrictions upon former public officials/public employees —did not become applicable to you upon termination of your employment with PennDOT and would not restrict you with regard to inspecting PennDOT projects as an inspector for a firm named "Michael Baker." Section 1103(b) of the Ethics Act applies to everyone. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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 requester 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 actuall14 received at the Commission within thirt (30 days of the date o this vice pursuant to 51 Pa. Code J 13.2(yh). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission f717-787-0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, 564 - )/,� ��/- Robin M. Hittie Chief Counsel