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HomeMy WebLinkAbout95-011 AbramsDear Mr. Abrams: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Allan M. Kluger Rev. Joseph G. Quinn John R. Showers Boyd E. Wolff DATE DECIDED: 12/7/95 DATE MAILED: 12/15/95 95 -011 Lawrence B. Abrams, Esquire Rhoads & Sinon One South Market Square Twelfth Floor P.O. Box 1146 Harrisburg, PA 17108 -1146 Re: Former Public Employee; Section 3(g); PennDOT; Civil Engineer; Engineer III; Appeal of Advice. This Opinion is issued pursuant to the appeal of Advice of Counsel, No. 95 -607, issued October 12, 1995. I. ISSUE: Whether and to what extent a "Civil Engineer" classified as an Engineer III with the Commonwealth of Pennsylvania, Department of Transportation (PennDOT) would be restricted by the Public Official and Employee Ethics Law upon termination of said employment. II. FACTUAL BASIS FOR DETERMINATION: By appeal received November 13, 1995, you have timely appealed Advice of Counsel, No. 95 -607, issued on October 12, 1995. By letter dated November 20, 1995, you were notified of the date, time and location of the public meeting. Abrams /Webster December 15, 1995 Page 2 Advice of Counsel, No. 95 -607, concluded that your client, Randall K. Webster, P.E., in his former capacity as a Civil Engineer with PennDOT would be considered a "public employee" as defined in the Ethics Law such that upon termination of service with PennDOT the restrictions of Section 3(g) of the Ethics Law would apply. The Advice concluded that the former governmental body would be PennDOT in its entirety, including but not limited to District 3 -0 where Mr. Webster had performed his professional services. The Advice provided an analysis of the restrictions of Section 3(g), cited precedents of this Commission, and additionally addressed certain specific inquiries Mr. Webster had posed. Your written appeal may be summarized as follows. You ask that Advice of Counsel, No. 95 -607 be overruled and that an Opinion be issued "recognizing and protecting [Mr. Webster's] constitutional right to pursue his chosen profession without unconscionable burden or overbroad restriction under Section 3(g) of the Act. . . ." Factually, you state that in his former position with PennDOT, Mr. Webster was one of five equal members of a design squad, and that all of these members were supervised in every assignment by their design squad leader who reported in every detail to the Plans Engineer. The Plans Engineer then affixed his seal to the plans produced by the office. Based upon what you characterize to be the unique facts of Mr. Webster's previous employment, you appeal from three specific conclusions that were reached in the Advice. First, you appeal the conclusion that in his former capacity, Mr. Webster was a "public employee" subject to the Ethics Law. You aver that he was not a "public employee" as defined in the Ethics Law because as a "journeyman engineer" as defined by his college degree, employed in District 3 -0, he believes that he was not responsible for and never did "take or recommend official action of a non - ministerial nature" with regard to the listed criteria in Section 2 of Act 9 of 1989. Furthermore, you argue that State Ethics Commission Regulation 11.1, "Public Employee" (iv) (D) which includes "engineers" with various positions generally considered to be within the definition of "public employee," is unconstitutionally overbroad when applied presumptively to Mr. Webster's former position as a "journeyman engineer" with District 3 -0. Second, you argue that even if Mr. Webster was a "public employee" as defined in the Act, his governmental body should be limited to PennDOT Engineering District 3 -0. In support of your contention, you proffer the following arguments. You argue that all of Mr. Webster's activities were confined to the areas of Abrams /Webster December 15, 1995 Page 3 Montoursville, Lycoming County, and the other eight counties in the north central tier. You state that the Legislative Record cited. in the Advice of Counsel to support the conclusion that the governmental body would be PennDOT in its entirety, is not legally admissible "to expand the legal sweep of the Act." Thus, you argue that given Mr. Webster's constitutional right to pursue his profession in the Commonwealth without unreasonable restriction, the Commission must find that on the unique facts of this case, where Mr. Webster as a "journeyman engineer" from Montoursville came to Harrisburg only infrequently for training or to deliver a plan sealed by others, the "governmental body" prescribed by Section 3(g) of the Act is District 3 -0, Montoursville, Pennsylvania. Third, with regard to the restrictions placed upon Mr. Webster within the context of the term "represent," you argue that Mr. Webster's acting within the scope of his employment at his private firm by performing CADD and other design work supervised by others on pre- existing, present and future contracts between PennDOT and his firm and accurately permitting his name to be reflected on the private firm's "Estimated Progress Reports- District Payroll Tabulations" and other invoices does not constitute "representation" under the Act or the Commission Regulations promulgated thereunder. You state your view that the Commission's decision' in Shay, Opinion 91 -012, is "an erroneous, unconstitutional extension of an otherwise valid regulation." You ask the Commission to restrict Shay to its facts and distinguish it from the instant case, or in the alternative, to retract, reconsider or overrule Shay as an overbroad enforcement of the regulation. In sum, you state your view that Mr. Webster's work with District 3 -0 was ministerial in that his work was always subject to approval and justification to a squad leader, his attendance at local meetings was to receive and give technical information, and he had no authority to implement official action, but merely performed technical as opposed to managerial work, which work was always reviewed and approved by at least two other individuals. Given his "journeyman" status, you aver that Mr. Webster's name would not be recognized outside of District 3 -0. Further, you argue that the accurate reporting of work done under PennDOT Regulations through the authorization of a private firm to submit the individual's name as the person who did the technical job work is not "representing" the firm as that term is defined and clarified in Act 9 of 1989 and the Regulations, and that even if the private firm or Mr. Webster would be questioned by PennDOT as to some aspect thereof, his responses would be his own as opposed to his firm's. You feel that the Shay Opinion is an illegal extension of the Section 3(g) prohibition to cover invoices. Finally, you cite case law, which you feel to be analogous, in the area of employers attempting to enforce overbroad covenants not to Abrams /Webster December 15, 1995 Page 4 compete, as to which you state that the Courts of the Commonwealth "will protect a former employee's right to pursue his profession free from overbroad restraints." Gordon Wahls Company v. Linde, 306 Pa. Super. 64, 69, 452 A.2d 4 (1982). Based upon the above, you ask the Commission to overrule Advice of Counsel No. 95 -607 and issue an Opinion that under the facts as presented in this case, your client, Randall K. Webster, was not a "public employee" in his former position with PennDOT; was not employed or associated with PennDOT on a statewide basis; and would not be "representing" his new employer in violation of the Ethics Law if he were to authorize his name to appear on the Progress Reports- Direct Payroll Tabulations and other invoices from his new private firm for technical work done by him properly under all applicable PennDOT regulations, within one year of his termination in District 3 -0. In addition to your written appeal summarized above, you presented further factual detail and elaborated upon the above arguments at the public meeting of the Commission held December 7, 1995. At the public meeting, you noted that following his graduation from Penn State in 1989 with a Bachelor of Science degree in civil engineering, Mr. Webster commenced employment with PennDOT in District 3 at the "squad level," which you characterize as the basic operating unit of PennDOT in the field in Montoursville. Per his job description, Mr. Webster's position involved journeyman - level work. He worked under a squad leader and a Plans Engineer. In his position, Mr. Webster did not have statewide responsibilities. He was working on designs in the northern tier. During the last four years of his service with PennDOT, the title of Mr. Webster's position was "Civil Engineer - Transportation" and he basically learned specifications for designing highways in Pennsylvania. Mr. Webster specifically stated that he worked on projects only in the counties within District 3. There were approximately 5 -6 people in Mr. Webster's squad. The squad leader closely supervised everything that the squad did. Mr. Webster did not supervise the individuals with whom he worked. Mr. Webster did not select the work that he did. To the contrary, the Plans Engineer would decide which squad would get which project, and the assignments to specific individuals in Mr. Webster's squad were made by Mr. Berkheimer, the Highway Design Supervisor. Mr. Webster's work product would be a draft of a plan showing, for example, a curve or a road. Mr. Webster specifically was not able to put a seal on a plan. The Plans Engineer or someone at a higher level actually sealed the plans. Abrams /Webster December 15, 1995 Page 5 If a contractor had a question, he would speak with Mr. Berkheimer. If Mr. Berkheimer was not available, Mr. Webster might be among squad members who would try to help the contractor, but Mr. Webster could not enunciate Department policy. Likewise, if Mr. Webster were sent to a public meeting, he could answer technical questions but he could not announce the position of the Commonwealth of Pennsylvania. Mr. Webster stated that he did not, as a squad member, perform responsibilities in the field without on -site supervision. Mr. Webster stated that none of the other squad members would have considered him to be their immediate supervisor, although, based upon his degree, he might be able to help them out with a question. Finally, Mr. Webster said that he did not have any authority to make final decisions. At the public meeting of the Commission, you reiterated your argument that, in Mr. Webster's former position with PennDOT, you do not believe he was a "public employee." However, you stated that Mr. Webster has no objection to complying with the Section 3(g) restrictions as set forth in the Advice of Counsel except for the prohibition enunciated in Shay, Opinion 91 -012. Our decision in Shay would preclude Mr. Webster's name from appearing on invoices submitted by his new, private employer -- a consulting firm -- to PennDOT. Mr. Webster's dilemma is that PennDOT requires that the name of the designer be on the invoice before PennDOT will accept it. You argued that the word "represent" as included in Section 3(g) and as defined in Section 2 of the Ethics Law, does not mean reflecting work accurately done on a contract. In particular, you objected to this restriction applying to work unrelated to Mr. Webster's former District. You expressed doubt that a person in Mr. Webster's journeyman -level position would even be recognized by PennDOT outside of his District. You expressed your view that signing an invoice to accurately reflect work done is not seeking a benefit for an employer that other people could not get. You argued that application of the Shay precedent to a person in Mr. Webster's position would result in Mr. Webster paying a penalty because he worked in Montoursville. You distinguish Shay from the instant case on two bases: (1) Mr. Shay was a "Locations- Contract Management Engineer" - a management position which you feel would stand in sharp contrast to Mr. Webster's position as a journeyman -level engineer; and (2) The Shay case came to the Commission on the basis of contracts that were being worked on in the District where Mr. Shay had worked, as opposed to the instant case, where Mr. Webster asks only to be able Abrams /Webster December 15, 1995 Page 6 to have his name appear on invoices for work done outside of the PennDOT District where he worked. Under the Advice of Counsel, Mr. Webster has not been able to work on Pennsylvania contracts for his new employer, and has been restricted to working on Township projects and some projects that have county funding. If Mr. Webster would be able to work on PennDOT projects for preexisting contracts, his work would be basically doing the same thing that he did at PennDOT - laying out curves and highways and doing math and design work. You ask for a "fair" and "reasonable" limitation upon Shay under the unique facts of this case. You express your belief that the appearance of Mr. Webster's name on an invoice as a CADD operator or as a designer on a project outside of District 3 does not involve representation as it is defined or was intended to be under the Act. III. DISCUSSION: Our review is de novo. We must first determine whether Randall K. Webster, P.E., in his former capacity as a "Civil Engineer" classified as an "Engineer III" with PennDOT was a "public employee" as defined in the Ethics Law, such that upon termination of said employment, he became subject to the restrictions of Section 3(g) of the Ethics Law, 65 P.S. §403(g). If we conclude that Mr. Webster was a "public employee" subject to the Ethics Law, we must further decide whether his former governmental body would be PennDOT in its entirety or merely District 3 -0, and whether there is any reason to distinguish this case from our opinion in Shay, Opinion 91 -012, or to reverse that precedent which precludes the inclusion of a former public employee's name on invoices submitted by his private firm to his former governmental body. We shall first consider whether Mr. Webster was, in his former capacity, a "public employee" subject to the Ethics Law. The Ethics Law defines the term "public employee" 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 nonministerial nature with regard to: (1) contracting or procurement; Abrams /Webster December 15, 1995 Page 7 65 P.S. §402. (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. "Public employee" shall not include individuals who are employed by the State or az^Ty political subdivision thereof in teaching as distinguished from administrative duties. The Regulations of this Commission further define the term "public employee" as follows: Public employe -- (i) The term includes an individual who is employed by the Commonwealth or a political subdivision and who is responsible for taking or recommending official action of a ncsnministerial nature with regard to one or more of the following: (A) Contracting or procurement. (B) Administering or monitoring grants or subsidies. (C) Planning or zoning. (D) Inspecting, licensing, or auditing a person. (E) Other activities in official action has greater than a economic impact. (ii) The following criteria will be used, in part, to determine whether an regulating which the de minimis Abrams /Webster December 15, 1995 Page 8 individual is within the definition of "public employee ": (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. Abrams /Webster December 15, 1995 Page 9 (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: (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 (Emphasis added). In our review of the issue of whether Mr. Webster was a "public employee" as defined in the Ethics Law, we use an objective Abrams /Webster December 15, 1995 Page 10 test based upon the grant of powers, duties and responsibilities -- not the powers, duties or responsibilities actually or claimed to be exercised. Phillips v. State Ethics Commission, 79 Pa. Commw. 491, 470 A.2d 659 (1984). Thus, we focus upon Mr. Webster's job description and classification specifications, rather than upon any claims as to what his actual performance of duties involved. Furthermore, we are directed to construe coverage of the Ethics Act broadly and to construe exceptions from such coverage narrowly. Phillips, supra. In reviewing Mr. Webster's job description and especially the job classification specifications within these parameters, we conclude that in his former position as a "Civil Engineer" classified as an Engineer III with PennDOT, Randall E. Webster, P.E., was a "public employee" subject to the Ethics Law. With regard to the statutory definition of "public employee," it is clear that Mr. Webster's duties included responsibility for taking or recommending official action of a non - ministerial nature with regard to planning, as well as other activities in which his official action would have greater than a de minimis economic impact. As for the Commission Regulations, Subsections (ii) and (iv)(D) have application, the latter of which specifically provides that engineers are generally considered public employees. Having reviewed the grant of powers, duties and responsibilities to Mr. Webster as set forth in the pertinent documents, applied the objective test for coverage under the Ethics Law, and concluded that Mr. Webster was a "public employee" in his former aforesaid position with PennDOT, we shall now consider the two additional issues which you have raised. First, with regard to Mr. Webster's former "governmental body" we agree with the conclusions reached in the Advice of Counsel. The term "governmental body with which a public official or public employee is or has been associated" is defined in the Ethics Law as follows: 65 P.S. §402. Section 2. Definitions "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. Abrams /Webster December 15, 1995 Page 11 On its face, that definition clearly indicates that subdivisions and offices within the governmental body are part of the governmental body and are not themselves separate governmental bodies. District 3 -0 of PennDOT, accordingly, is part of the governmental body of PennDOT and is not itself a separate governmental body. The legislative intent as revealed by the Legislative Journal of the House which is cited and quoted in the Advice of Counsel supports this conclusion. It does not, as you suggest, "expand the legal sweep of the Act." It merely states what is already apparent from the face of the statutory provision itself. Nevertheless, it is perfectly proper and permissible to look to the legislative history for clarification. See, Statutory Construction Act of 1972, 1 Pa.C.S. §1921(c)(7). We are satisfied that our interpretation of the plain meaning of the definition of "governmental body with which a public official or public employee is or has been associated," as confirmed by the legislative history as to that provision, is correct and that Mr. Webster's former governmental body would be PennDOT in its entirety, which would include but would not be limited to District 3 -0. Finally, we turn to your third challenge to the Advice of Counsel. In his new employ, assuming that there would be no use of confidential information received as a result of his former public position, Mr. Webster could work on CADD and other design work for pre- existing, present and future contracts between the firm and PennDOT. Furthermore, we are persuaded that a modification to our decision in Shay, Opinion 91 -012 is warranted. We emphasize that Mr. Webster is a "former" public employee and that he is subject to the restrictions of Section 3(g) of the Ethics Law as set forth in the Advice of Counsel, but with the following modification: we modify our decision in Shay, Opinion No. 91 -012, to hold that in the event of work performed on a contract already awarded and not involving his old District, Mr. Webster's name may appear on routine invoices if required by the regulations of the agency to which the billing is being submitted. Advice of Counsel, No. 95 -607 is affirmed in part and reversed in part. IV. CONCLUSION: A "Civil Engineer" classified as an Engineer III with PennDOT is a "public employee" subject to the provisions of the Public Abrams /Webster December 15, 1995 Page 12 Official and Employee Ethics Law. Upon termination of service with PennDOT, the former governmental body would be PennDOT in its entirety. The restrictions of Section 3(g) would apply as set forth in the Advice of Counsel with the following modification: we modify our decision in Shay, Opinion No. 91 -012, to hold that in the event of work performed on a contract already awarded and not involving his old District, Mr. Webster's name may appear on routine invoices if required by the regulations of the agency to which the billing is being submitted. The restrictions of Section 3(g) are applicable for a period of one year following termination of service with PennDOT. Advice of Counsel, No. 95 -607 is affirmed in part and reversed in part. Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. such. This letter is a public record and will be made available as Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By the Commission, 0O Daneen E. Reese Chair