HomeMy WebLinkAbout84-004 MontgomeryBruce E. Montgomery
301 Edison Avenue
New Castle, PA 16101
II. Factual Basis for Determination:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
OPINION OF THE COMMISSION
February 24, 1984
84 -004
RE: Civil Engineer II, Financial Interests Statement, Advice No. 83 -616
Dear Mr. Montgomery:
I. Issue:
You ask the Commission to review the question of whether the Ethics Act
applies to you as a Civil Engineer II and requires you to file a Financial
Interest Statement as a "public employee" as Advice No. 83 -616 concluded.
You currently serve as and are classified as a Civil Engineer II serving
within the Pennsylvania Department of Transportation, hereinafter PennDot.
Previous to this Commission's review of your question an Advice of Counsel No.
83 -616 had been issued in this case on November 23, 1983, and that Advice is
incorporated herein by reference. That Advice concluded that you were a
"public employee" within the meaning of the Ethics Act and, therefore, you
were advised that you should be filing a Financial Interest Statement pursuant
to the Ethics Act. That Advice relied primarily upon the job description of
your duties as a Civil Engineer II as set forth in your official job
description which is incorporated herein by reference. In addition, we have
referred to and relied upon and incorporate herein by reference, the class
specification relative to the position of Civil Engineer II.
Your job description, as set forth in the Advice of Counsel and as
repeated here for purposes of completeness, indicates that you initiate at
least one feasibility study per month which includes producing the best
available base plan sheets through the use of airial photographs, historical
plans, and other survey and mapping data; the designing and drawing of
alternate roadways on the base plan sheets according to acceptable standards;
and determining preliminary cost estimates by competing quantities and cost of
the materials for all alternatives designed. You also participate in the
local coordination and planning and programming to a limited degree, as
determined by a supervisor, and you are responsible for reviewing requests for
federal authorizations which were submitted by in- house, consultant, and /or
local designers.
Bruce E. Montgomery February 24, 1984
Page 2
Additionally, class specification for a Civil Engineer II include as
examples of work to be performed by such an individual the following:
1. participating in the collection, validation, analysis and projection
of multi -modal transportation planning data including assisting in
developing alternative transportation plans;
2. serving as a construction engineer for the less complex roadways,
bridges, buildings, and other civil engineering projects undertaken
by PennDot, including checking contractor's work for compliance with
contract stipulations and specifications, assigning inspection of
sections of projects to assistants, and making changes in design as
indicated by on-site conditions;
3. performing preliminary highway location studies for less complex
projects by determining probable line through the use of
photographs, geological survey data, and field inspection and
investigation information; and
4. reviewing highway design plans for less complex projects in order to
insure proper and effective traffic control.
Additionally, these class specifications in defining this type of
position indicate that the work involves independently performing preliminary
engineering studies, conducting location or foundation investigations,
preparing plans and specifications and serving as a construction engineer on
less complex projects or assisting a higher -level engineer on substantial
portions of complex projects.
Although the Office of Administration, PennDot and the Advice of Counsel
have previously determined that you should be considered a "public employee ",
you argue that as a Civil Engineer II you do not fall within the definition of
"public employee." Specifically, you indicate that your work, in your
estimation, is performed in a prescribed manner in obedience with the mandate
of legal authority. You basically state that you simply check for comformity
of the designer's form to the mandates issued by the Deputy Secretary for
Highway Administration within PennDot. You state that if a form is completed
satisfactorily, your immediate supervisor will review it, initial it, and
signify that he is in agreement with its conformity to PennDot regulations.
You state that in this process, you have no authority to take or recommend
official action with respect to any of the categories, particularly category
(4) or (5) as set forth in the definition of "public employee" in the Ethics
Act.
Bruce E. Montgomery February 24, 1984
Page 3
III. Applicable Law: The law to be applied to this question is as follows:
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
nonmi ni steri al 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 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.
65 P.S. 402.
State Ethics Commission regulations further state:
Public employee - --
(i) The term includes any individual:
(A) who is employed by the Commonwealth or a political subdivision and who
is responsible for taking or recommending official action of a nonministerial
nature with regard to:
I) contracting or procurement;
II) administering or monitoring grants or subsidies;
(III) planning or zoning;
(IV) inspecting, licensing, regulating, or auditing any person; or
(V) any other activity where the official action has greater than a
de minimis economic impact; and
Bruce E. Montgomery February 24, 1984
Page 4
(8) who meets the criteria of either subclause (I) or (II) of this clause:
(I) The individual is:
( -a -) a person who normally performs his responsibility in the field
without on -site supervision;
( -b -) 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.
(II) The individual is a person:
( -a -) who:
( -1 -) has the authority to make final decisions;
( -2 -) has the authority to forward or stop recommendations from
being sent to the person or body with the authority to make
final decisions;
( -3 -) prepares or supervises the preparation of final
recommendations; or
( -4 -) makes the final technical recommendations; and
( -b -) whose recommendations or actions:
( -1 -) are an inherent and recurring part of his position; and
( -2 -) affect organizations other than his own organization.
(ii) 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.
(iii) Persons in the positions listed below are generally considered public
employees.
(A) Executive and special directors or assistants reporting directly to
the agency head or governing body.
(8) Commonwealth bureau directors, division chiefs, or heads of equivalent
organization elements; and other governmental body department heads.
Bruce E. Montgomery February 24, 1984
Page 5
(C) Staff attorneys engaged in representing the department, agency, or
other governmental bodies before the public.
(D) Solicitors, engineers, managers, secretary- treasurers acting as
managers, police chiefs, chief clerks, chief purchasing agents, grant and
contract managers, housing and building inspectors, 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 business managers and principals.
(iv) Persons in the positions listed below are generally not considered
public employees.
(A) City clerks, other clerical staff, road masters, secretaries, police
officers, welfare case workers, maintenance workers, construction workers,
detectives, equipment operators, and recreation directors.
(8) 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.
IV. Discussion:
The question to be addressed by this Commission is simply stated as
follows: Is a Civil Engineer II in your position to be considered a "public
employee" as defined in the Ethics Act 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 on this point. This question must be
reviewed and answered in light of your own duties and obligations as those
duties are ennunciated in the class specification applicable to the position
of a Civil Engineer II and your own individual job description which is
derrived therefrom. This inquiry must focus on the job description itself and
not upon the individual incumbent in the position, the variable functions, or
the manner in which a particular individual occupying a position may carry out
those functions. See Phillips v. State Ethics Commission, No. 1574 C.D. 1982,
Opinion filed January 11, 1984, Pa. Cmwlth. In the Phillips case.
the Court acknowledged and accepted the Commission s use of an objective test
in deciding whether persons in particular positions are to be considered
"public employees" or not. Additionally, in this case, the Court concluded
that:
Bruce E. Montgomery February 24, 1984
Page 6
The Ethics Act, being remedial legislation, is to be
liberally construed. See, Kremer v. State Ethics
Commission, 56 Pa. Cmwlth. Ct. 160, 424 A.2d 968 (1981).
Thus, coverage under the Act should be broadly, rather
than narrowly, determined; conversely, exclusions under
the Act should be narrowly, rather than broadly, -
determined. Phillips, slip opinion, page 4.
With these thoughts in mind, we undertake a review of the Advice of
Counsel, the classification specification for your position, your individual
job description and other available data, including your arguments as set
forth above. Reviewing all these facts in an objective manner and given the
liberal construction to be ascribed to the Ethics Act and the Court's
admonition that exclusions under the Act should be narrowly, rather than
broadly, construed, we must conclude that you are a "public employee" subject
to the filing requirements of the Ethics Act. Specifically, even though you
assert, as did the Petitioner in the Phillips case, that your responsibilities
are performed largely in response to regulations and legal mandates, the class
specification for this position and your job description indicate a degree of
independence in performing engineering studies and conducting location
investigations that are not necessarily limited to or mandated by regulations
or requirements so as to preclude your exercise of independent judgment and
authority. In the performance of any such study, your evaluation and
reporting process must, of necessity, entail the exercise of judgment which
produces a recommendation regarding the degree to which a particular
designers' forms or proposals are in conformity with the mandates. With
respect to your service as a construction engineer on less complex projects,
we must conclude that you have responsibility to take or recommend action with
respect to these projects.
It was argued in Phillips, as here, that because work which you performed
is reviewed by several, perhaps many, levels of supervisors, there should be
an automatic or other exclusion of your position from the definition of
"public employee." See the Commission's opinion in Phillips, 82 -006.
However, here, as in Phillips, the mere fact that other persons review your
recommendations and 'nave fne final authority to act upon those recommendations
does not alter our conclusion that you are within the classification of
"public employee" as defined in the Ethics Act.
V. Conclusion:
Upon consideration of all the evidence submitted and referred to herein
we will affirm Advice No. 83 -616 and issue this Opinion holding that for the
reasons enunciated above, you should be considered a "public employee" subject
to the Ethics Act and as such you must file Financial Interests Statement
under the Ethics Act. This statement must be filed within thirty (30) days of
this Opinion.
Bruce E. Montgomery February 24, 1984
Page 7
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 of the advice given.
This letter is a public record and will be made available as such.
Finally, any person may request within 15 days of service of the opinion
that the Commission reconsider its opinion. The person requesting reconside-
ration should present a detailed explanation setting forth the reasons why the
opinion requires reconsideration.
SSC /rdp
Enclosure
By the Commission,