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Home My WebLink About81-002 MateyRobert K. Matey Real Estate Appraiser II Department of Transporation 1713 -41 Lehigh Street P.O. Box 1379 Allentown, PA 18105 I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 January 27, 1981 OPINION OF THE COMMISSION II. Factual Basis for Determination: 81 -002 RE: Real Estate Appraiser II, Applicablity of Ethics Act Dear Mr. Matey: This responds to your letter of November 26, 1980, in which you requested that the full Commission review the Advice of Counsel, 80 -13A. This Advice is attached hereto and is incorporated as a part of the record in this Appeal. Are you, classified as a Real Estate Appraiser II, serving in the Department of Transportation of the Commonwealth of Pennsylvania a "public employee" required to file a Financial Interest Statement (FIS) under the Ethics Act? We have secured your official job description and this is incorporated by reference into this Opinion. Essentially, this job description indictates that among other duties, you are responsible for: 1. performing advanced technical work associated with appraisal of all types of property (residential, commercial, industrial, and large income producing property) within your district; 2. determining the affect of and viewing properties affected by proposed highway construction plans; 3. obtaining and evaluating data about applicable elements of damages, before and after values and estimates of damage, including: determining the appropriate method of deriving values; interviewing property owners and preparing appraisal reports; and assisting in resolving problems and disputes concer- ning final appraisals. Robert K. Matey January 27, 1981 Page 2 The job specifications for your position indicate that you receive "work in the form of general instructions" and proceed with "considerable independence in completing assignments" within technical and administrative guidelines and procedures. These specifications further state that a person in your posi- tion would be expected to perform all the technical appraisal work required to acquire real estate for other public purposes. Finally, you also must appraise alternate real estate for the relocation of owners /persons displaced by condemnation proce- edings. We realize that cut -backs in the highway construction program have reduced condemnation and appraisal work to a low level. You reveal that the 43 persons once serving in this program -area have been reduced to 7 and that the major portion of your work relates, at present to the highway sign permit program. III. Applicable Law: The Ethics Act applies to all persons within the defini- tion of "public employee" which is repeated below: "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 minimus nature on the interest of any person. 65 P.S. 402. Commission regulations elaborate on this definition by specifying that a "public employee" includes: A person who normally performs his or her responsi- bility in the field with on -site supervision; or, The immediate supervisor of such a person; or, The supervisor of the highest level field office. Robert K. Matey January 27, 1981 Page 3 A person with the authority to make final decisions; - A person with the authority to forward or stop recom- mendations from being sent to the person or body with the authority to make final decisions; or, - Who prepares or supervises the preparation of final recommendations; or, Who makes final technical recommendations; and IV. Discussion: Whose recommendations or actions are an inherent and recurring part of his or her position and affect organizations other than his or her own. The question presented is simply stated: Are you, as a Real Estate Appraiser II, a "public employee" and therefore required to file a Financial Interest Statement under the Ethics Act? This question must be reviewed and answered in relation to the Ethics Act, its purpose and, of course, the Commission's regulations. It must be reviewed and answered in light of your duties and obligations as these duties are enun- ciated by your job description and the specifications applicable to your job classification. We note that we must base our review and discussion on your job description and classifica- tion because these remain your official tasks. You performed these tasks until recent cut -backs and, presumably, will resume them if the highway construction program is re- vitalized. We are compelled to use these objective standards unless and until your job specifications, description, or clasification is revised If this occurs, officially, please advise. Turning to the Ethics Act as the initial and primary point of review vis -a -vis your official duties, we note that a "public employee" is anyone who makes recommendations of a nonmini- sterial nature with regard to contracting or procurement, inspecting, or other activity which has an economic impact on the interests of any person of a greater than de minimus nature. Further, our regulations provide that a person who normally does his work in the field without on -site supervision and who makes the final technical recommendation in a matter is generally considered a public employee. With these guidelines, it is apparent that you fall within the definition of "public employee." First, you do make recommendations regarding the necessity of acquiring property, rights -of -way and the like. You inspect property to assess its value to complete this process. Certainly your recommendations regarding valuation are (1) nonministerial and (2) of a nature greater than de minimus as to the economic interest of the persons affected. Robert K. Matey January 27, 1981 Page 4 Second, it is obvious as stated in your job description that this valuation takes place in the field and that you operate without on -site supervision with a considerable degree of independence. Third, even though you do not have the final power to purchase a property, for example, your on -site inspec- tion, analysis, and report is vital to this process. We believe that this activity is within the realm of what the Legislature meant when they directed that "public employees" who inspect and /or regulate should be included and covered by the Ethics Act. Finally, if any doubts exist as to inclusion or exclusion of a particular person or group, these should be resolved in favor of "promoting complete disclosure" as required by Section 1 of the Act. V. Conclusion: As a Real Estate Appraiser II, you are a "public employee" within the meaning and coverage of the Ethics Act. You must file a Financial Interest Statement as required by Section 4 of the Act. Because of your appeal you have not filed a financial statement for the calendar year 1979. This should have been filed no later than May 1, 1980. Accordingly, this statement should be filed within 30 days of this Opinion. A form is attached for your use. After completion, forward the original to our office to verify compliance with this Opinion, send the yellow copy to your personnel office, and retain the green copy for your records. Your financial statement for the calendar year 1980 is due no later than May 1, 1981. Follow the instructions on the form as to the filing of this form. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commis - sion, and evidence of good faith conduct in any 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. PJS /rdp cc: Sharon S. Wright William Kennedy