HomeMy WebLinkAbout00-004 McGlatheryAllen C. McGlathery
2508 10th Street
Altoona, PA 16601
I. ISSUE:
OPINION OF THE COMMISSION
Before: Daneen E. Reese, Chair
Julius Uehlein
Louis W. Fryman
John J. Bolger
Frank M. Brown
Susan Mosites Bicket
DATE DECIDED: 06/20/00
DATE MAILED: 07/07/00
00 -004
Re: Former Public Employee; Section 1103(g); Department of Transportation
(PennDOT); District Utility Relocation Administrator; Appeal of Advice.
Dear Mr. McGlathery:
This Opinion is issued in response to the appeal of Advice of Counsel No. 00 -536
which was issued March 7, 2000.
Whether the Public Official and Employee Ethics Act presents any restrictions upon
the employment of a district utility relocation administrator following termination of service
with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT ").
II. FACTUAL BASIS FOR DETERMINATION:
By letter dated April 4, 2000, you appealed Advice of Counsel 00 -536 issued March
7, 2000.
In your initial advisory request letter dated February 7, 2000 you presented the
following facts. On January 22, 1999, you retired from the position of District Utility
Relocation Administrator for PennDOT in District 9 -0. On February 22, 1999, you returned
to District 9 -0 as an annuitant to work part -time on a limited number of projects. On
February 4, 2000, you completed the 95 days that you were permitted to work in the fiscal
year. You are currently pursuing part -time employment with consulting engineering firms
in the Altoona area, all of which firms perform work for PennDOT.
You asked this Commission to evaluate your position as District Utility Relocation
Administrator in District 9 -0 prior to your retirement in January 1999 and to provide advice
as to the restrictions under the Ethics Act that would apply to your service with the private
consulting engineering firms. You submitted a copy of your most recent job description
McGlathery, 00 -004
July 7, 2000
Page 2
with PennDOT, which job description is incorporated herein by reference. For purposes of
this Opinion, it is assumed that upon returning to work for PennDOT following your
retirement, you performed duties comparable to those which you performed as a District
Utility Relocation Administrator.
We administratively note that your request is not the first advisory request to involve
participation by a retiree in this program. See, Ickes, Advice of Counsel 99 -535. It is our
understanding that under the program, which is hereinafter referred to as the "95 -day
program," a retiree may work for PennDOT for up to 95 "days" in a fiscal year. A "day" is
defined as 4 hours or more. It is also our understanding that for participants in the 95 -day
program, PennDOT withholds taxes and Social Security but does not deduct for retirement
or hospitalization /health. Id.
Advice of Counsel 00 -536 was issued on March 7, 2000. The Advice of Counsel
stated that in your position as a District Utility Relocation Administrator for PennDOT, you
would be considered a "public employee" subject to the Ethics Act, such that upon
termination of service with PennDOT, you became a "former public employee" subject to
the restrictions of Section 1103(g) of the Ethics Act. The Advice of Counsel outlined the
restrictions that would apply to you as a former public employee. The Advice of Counsel
stated that your former governmental body would be PennDOT in its entirety, including but
not limited to District 9 -0.
With regard to your retirement and subsequent return to work for PennDOT, the
Advice concluded that when you returned to PennDOT on February 22, 1999 under the 95-
day program, you once again became a public employee, and that upon termination of
service under that program on February 4, 2000, you once again became a former public
employee subject to the restrictions of Section 1103(g). The Advice determined that you
could not engage in prohibited representation for one year after February 4, 2000, which
was the date you left PennDOT after completing work under the 95 -day program.
McGlathery, Advice of Counsel 00 -536 at 4.
You timely appealed the Advice of Counsel. By letter dated May 30, 2000 you were
notified of the date, time, and location of the public meeting at which your appeal was to be
considered.
At the public meeting on June 20, 2000 you appeared and offered commentary in
the form of a written statement which you read to this Commission. You raised three
issues which may be fairly summarized as follows.
The first issue concerns your status under the Ethics Act. Noting the statutory
definition of the term "public employee," you contend that the job description for your
former position does not indicate any responsibilities with regard to procurement,
administering or monitoring grants, leasing or regulating. You state that the duties of a
District Utility Relocation Administrator are, in your view, "ministerial" and "statutory." You
cite Webster's Dictionary for definitions of these terms. You state that all decisions that
would be made by a person in such capacity are defined and governed by various laws or
regulations. Based upon your premise that the job duties of a District Utility Relocation
Administrator are ministerial and statutory, you conclude that such duties could not have
any economic impact of any nature on another person or company.
The second issue which you raise as to the Advice of Counsel pertains to its
conclusion that your former governmental body would include PennDOT in its entirety,
including but not limited to District 9 -0. See, McGlathery, Advice of Counsel 00 -536 at 3.
You state that each District within PennDOT administers its own programs, and that the
responsibilities and authority of your position at the time of your retirement did not go
beyond the six counties of District 9 -0.
The third and final issue which you raise is that you do not recall any "future" ethics
requirements being a part of your employee orientation or employment records at the time
McGlathery, 00 -004
July 7, 2000
Page 3
of your hiring in November 1965, nor do you recall any subsequent notification of new
policy to that effect. You argue that Section 1103(g) may not be applied to you because
the Commonwealth did not mention such restrictions as a condition of your employment.
III. DISCUSSION:
We begin by reviewing your status under the Ethics Act. There is no question that
in your former capacity as a District Utility Relocation Administrator for PennDOT, you
were a "public employee" subject to the provisions of the Public Official and Employee
Ethics Act. Our review of the pertinent statutory and regulatory definitions and criteria and
the job description which you submitted confirms that conclusion.
Id.
Our review of this matter is de novo.
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:
(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 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 Ethics Act defines the related term "ministerial action" as follows:
"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.
The Regulations of the State Ethics Commission track the statutory definition of 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.
McGlathery, 00 -004
July 7, 2000
Page 4
(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 recommen-
dations 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.
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.
(1)
(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:
McGlathery, 00 -004
July 7, 2000
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.
Status as a "public employee" subject to the Ethics Act is determined by applying
the statutory and regulatory definitions and criteria to the position held. The focus is
necessarily upon the position itself, and not upon the individual incumbent in the position,
the variable functions of the position, or the manner in which a particular individual
occupying the position may carry out those functions. See Phillips v. State Ethics
Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); and Mummau v. Ranck, 531 Fed. Supp.
402 (E. D. Pa. 1982). Furthermore, the Commonwealth Court of Pennsylvania has directed
that coverage under the Ethics Act be construed broadly and that exclusions under the
Ethics Act be construed narrowly. See, Phillips, supra.
In reviewing yourjob description, yourjob duties included, for example: directing all
of the District's utility relocation activities; supervising the review of proposed highway
construction plans and the preparation of cost estimates; inspecting relocation activities;
supervising staff; participating in the development of certain program standards;
participating in field inspections of proposed highway locations to determine utility
relocation costs and advantages of alternate locations; administering the negotiation of
preliminary relocation agreements; and administering the inspection of construction
materials and workmanship to ensure adherence to agreements and PennDOT standards.
Such activities would clearly be nonministerial and would fall within paragraph (5) of the
statutory definition of "public employee," as well as numerous of the regulatory criteria
quoted above.
As for your contention that the duties of a District Utility Relocation Administrator
are "statutory," the fact that duties may be statutorily prescribed does not render them
ministerial, nor does it nullify status as a "public official" or "public employee."
Based upon the above judicial directives, the provisions of the Ethics Act, the State
Ethics Commission Regulations, the Opinions of this Commission, and your job
description, the necessary conclusion is that in your former capacity as a District Utility
Relocation Administrator, you were a "public employee" subject to the Ethics Act.
It is equally clear that upon termination of your aforesaid position with PennDOT,
you became a "former public employee" subject to the restrictions of Section 1103(g) of the
Ethics Act which provides as follows:
§ 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).
The terms "represent," "person," and "governmental body with which a public official
or public employee is or has been associated" are defined in the Ethics Act as follows:
McGlathery, 00 -004
July 7, 2000
Page 6
§ 1102. Definitions
"Represent." To act on behalf of any other person in any activity which
includes, but is not limited to, the following: personal appearances,
negotiations, lobbying and submitting bid or contract proposals which are
signed by or contain the name of a former public official or public employee.
"Person." A business, governmental body, individual, corporation, union,
association, firm, partnership, committee, club or other organization or group
of persons.
"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.
65 Pa.C.S. §1102.
Based upon our review, the Advice of Counsel properly concluded that your former
governmental body is all of PennDOT and not merely Engineering District 9 -0 where you
served. This conclusion is not only based upon the clear and obvious meaning of the
statutory language but upon the legislative history which is cited and quoted in the Advice
of Counsel. We would merely note that in our view, the statutory language is not
ambiguous, but even if it were, reference to the legislative history is an appropriate manner
by which to resolve any ambiguity. See, Statutory Construction Act of 1972, 1 Pa.C.S.
§1921(c)(7); Stanisic, Opinion 98 -004. Thus, your former governmental body includes all
of PennDOT, not just Engineering District 9 -0.
As for our interpretations of the restrictions of Section 1103(g), they have been so
often recited, see, e.q., Confidential Opinion, 98 -012; Confidential Opinion, 97 -007, that
we see no need to reiterate them herein. We have reviewed the Advice of Counsel and
are satisfied that it accurately apprised you of the nature of the Section 1103(g) restrictions
and of certain important Commission precedents pertaining to Section 1103(g). We adopt
and incorporate herein by reference the Advice's recitation of the Section 1103(g)
restrictions.
With regard to your retirement and subsequent return to work for PennDOT, the
Advice concluded that when you returned to PennDOT on February 22, 1999 under the 95-
day program, you once again became a public employee, and that upon termination of
service under that program on February 4, 2000, you once again became a former public
employee subject to the restrictions of Section 1103(g). We reach the same conclusions,
for the following reasons.
First, the fact that participation in the 95 -day program is limited to 95 days per fiscal
year supports the conclusion that such participation is in the capacity of an employee,
rather than an independent contractor for which there would be no need for such
limitations.
Second, the payment arrangements under the 95 -day program reflect the indicia of
employment. It is our understanding that taxes and Social Security are withheld from the
payments to the participants.
Finally, we note that within the strictures of Section 1103(g), the only way that you
could perform services involving such direct contact with PennDOT during the first year
following your retirement would be as an employee. To perform such services as an
McGlathery, 00 -004
July 7, 2000
Page 7
independent contractor would transgress Section 1103(g) because it would necessarily
involve prohibited representation before your former governmental body. Confidential
Opinion, 93 -005; Confidential Opinion, 97 -007; Confidential Opinion, 97 -008. However,
Section 1103(g) does not prohibit the rehiring of the former public employee provided that
a true public employment relationship exists. See, Lonq, Opinion 97 -010; Confidential
Opinion, 93 -005. Following your retirement from PennDOT, you were essentially rehired to
provide services as an employee, on a limited basis.
We conclude that as a public employee who retired from PennDOT but who
subsequently returned to work for PennDOT under the 95 -day program which allows
retirees to work up to 95 days per fiscal year, you became a "public employee" again.
Upon termination of your service under that program, you once again became a former
public employee subject to the restrictions of Section 1103(g). The restrictions of Section
1103(g) apply for a full one -year period each time an individual becomes a former public
employee. Thus, as a result of your participation in the 95 -day program, the one -year
period of applicability of Section 1103(g) began anew following your termination of
participation in the 95 -day program on February 4, 2000.
Turning to the third and final issue which you have raised, it is apparently your view
that the restrictions of Section 1103(g) may not be applied to you given your recollection
that such requirements were not presented or explained to you as part of your employee
orientation or employment records at the time your were hired in November 1965, nor were
you, to your recollection, subsequently notified of new policy" to that effect. You argue
that the Commonwealth would have had to mention those restrictions as a condition of
your employment at that time, in order for the restrictions to apply to you. We rejected a
similar argument in Lonq, Opinion 97 -010, wherein we stated:
...the submitted fact that during your employment, you were never told about
Section 3(g) and never agreed to its restrictions is of no legal consequence.
The law applies to you, with or without your consent, and you are presumed
to know of it.
Id. at 5.
Based upon the above analysis, the appeal of Advice of Counsel 00 -536 is denied.
Advice of Counsel 00 -536 is affirmed.
The propriety of the proposed conduct has only been addressed under the Ethics
Act. Specifically not addressed herein is the Governor's Code of Conduct.
IV. CONCLUSION:
A former District Utility Relocation Administrator for the Commonwealth of
Pennsylvania, Department of Transportation (PennDOT) would be a "former public
employee" subject to the restrictions of Section 1103(g) of the Public Official and
Employee Ethics Act, 65 Pa.C.S. §1103(g). The restrictions of Section 1103(g) apply for
one year following termination of public service. A public employee who would retire from
PennDOT but would subsequently return to work for PennDOT under a program which
allows retirees to work up to 95 -days per fiscal year would, in so doing, become a "public
employee" again. Upon termination of service under that program, the retiree would once
again became a former public employee subject to the restrictions of Section 1103(g). The
restrictions of Section 1103(g) would apply for a full one -year period each time the
individual would become a former public employee. The former governmental body would
be PennDOT in its entirety, including but not limited to the individual district(s) served.
The restrictions of Section 1103(g) are accurately set forth in Advice of Counsel 00 -536,
which restrictions must be observed. The appeal is denied. Advice of Counsel 00 -536 is
affirmed.
McGlathery, 00 -004
July 7, 2000
Page 8
Pursuant to Section 1107(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.
This letter is a public record and will be made available as such.
Finally, a party may request the Commission to reconsider its Opinion. The
reconsideration request must be received at this Commission within thirty days of the
mailing date of this Opinion. The party requesting reconsideration should present a
detailed explanation setting forth the reasons why the Opinion requires reconsideration.
By the Commission,
Daneen E. Reese
Chair