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HomeMy WebLinkAbout81-008 WarfelSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 June 24, 1981 OPINION OF THE COMMISSION Mr. William Warfel 81 -008 58 Snyder Street Manheim, PA 17545 RE: Public Employees, Material Engineer II, Statements of Financial Interest Dear Mr. Warfel: I. Issue: Are you required, as a Material Engineer 11 employed by the Pennsylvania Department of Transportation, to file a State- ment of Financial Interests under the Ethics Act. II. Factual Basis For Determination: You are currently employed by the Pennsylvania Department of Transportation as a Material Engineer II in the Bureau of Contract Quality Control,_ Materials Testing Division. The job description for a Material Engineer II states that such an such performs technical inspection duties in the Construc- tion Materials Quality Assurance Program. You observe sampling and testing procedures to insure that the Department policies and procedures are followed. Further, a Materials Engineer II is involved in accepting or rejecting material from contractors. As an engineer you follow Department procedures but are expected to use your professional judgment in solving work problems. The Department of Transportation determined that you should file the Statement of Financial Interests required by the Ethics Act. You appealed from this decision to the Ethics Commission on the basis that the Ethics Act violates several provisions of the Federal Constitution. General Counsel decided in Advice 80 -11A that you are a public employee required to file a statement. You then took this appeal to the Commission, reasserting your claim that the Ethics Act contravenes the Constitution. Mr. William Warfel June 24, 1981 Page 2 1I1. Applicable Law: (A) Any_individual employed by the Common- wealth or a political subdivision who is responsible for taking or recommen- ding official action of a non - ministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (4 (3) planning or zoning; ) 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 Y.S. §402. (B) Public employee shall not•include individuals who are employed by the State or a political subdivision thereof in teaching and distinguished from administrative duties. (C) A person who: a. normally performs his responsibility in the field without on -site supervision. b. is the immediate supervisor of a person who normally performs his responsibility in the field without on -site supervision; or c. the supervisor of any highest level field office. d. has the authority to make final decisions; e. has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions. g. prepares or supervises the prepa- ration of final recommendations; or makes the final technical recommendations; and Mr. William Warfel June 24, 1981 Page 3 IV. Discussion: Initially, we note that it is the function of this • Commission and its Counsel to administer the Ethics Act, not to pass on its constitutionality. Arguments as to the constitu- tionality of the Ethics Act are more properly addressed to the courts than to this Commission. Most of the constitutional arguments you_advance, however, were considered and rejected by the Commonwealth Court in Snider v. Shapp. Pa. Commonwealth Ct. , 405 A.2d 602 (19/9). Proceeding to your contention that the Ethics Act should not be applied to you we point out that the statutory definition of public employee includes any individual employed by the Commonwealth who is responsible for taking or recommending official action of a non - ministerial nature with regard to inspecting, licensing, regulating or auditing any person. 65 P.S. §402. You are employed by the Department of Transportation so you are obviously employed by the'Commonwealth. You are a public employee if you take or recommend official action of a non - ministerial nature with regard to inspecting any person. As an engineer you are expected to use professional judg- ment in solving work problems. A person who must use profes- sional judgment is performing non - ministerial actions, defined by Commission regulation as an action in which the person exercises his own judgment as to the desirability of the action taken. That your professional judgment is guided by Department policies and procedures does not change the fact that your informed judgment as an engineer is constantly part of your work, primarily inspecting to insure compliance with Department standards in the Quality Assurance Program. Thus, you fit squarely within the Ethics Act's definition of "public employee." This conclusion is supported by the Commission regulations which provide that engineers are generally considered public employees. As a public employee you must file a Statement of Financial Interests. V. Conclusion: whose recommendations are an inherent and recurring part ot his position; and affect organi- zations other than his own organization. (D) Non - ministerial actions: An action in which the person exercises his own judgment as to the desirability of the action taken. A Material Engineer II is responsible for performing technical inspections in the Quality Assurance Program of the Pennsylvania Department of Transportation, Bureau ot Contract Mr. William Warfel June 24, 1981 Page 4 Quality Control, Materials Testing Division. You must insure compliance with the Department policy and standards by using your professional judgment in your work. There is no doubt that you are employed by the Commonwealth and take non - ministerial official action with regard to inspecting persons. Accordingly, the Advice of Counsel previously issued is affirmed and we find that you are a "public employee" and must file Financial Interest Statements as required by the Ethics Act. These must be filed within thirty (30) days of this Opinion. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, 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 Wright, Director William Kennedy, Chief Bureau of Personnel Personnel Management Review Division Department of Transportation Office of Budget & Administration