HomeMy WebLinkAbout99-002 JohnsonOPINION OF THE COMMISSION
Wallace G. Johnson
666 Kelso Road
Pittsburgh, PA 15243
Dear Mr. Johnson:
Before: Daneen E. Reese, Chair
Austin M. Lee, Vice Chair
Julius Uehlein
Louis W. Fryman
John J. Bolger
Frank M. Brown
Susan Mosites Bicket
DATE DECIDED: 2/26/99
DATE MAILED: 3/10/99
99 -002
Re: Public Employee; PennDOT; Engineer; Temporary Wage Employee; Bridge
Coordinator; Section 1103(g); Appeal of Advice.
This Opinion is issued in response to the appeal of Advice of Counsel, No. 99 -500,
which was issued on January 5, 1999.
I. ISSUE: Whether Section 1103(g) of the Public Official and Employee Ethics
Act presents any restrictions upon the employment of a temporary wage employee with the
working title of Bridge Coordinator following termination of service with the Commonwealth
of Pennsylvania, Department of Transportation.
II. FACTUAL BASIS FOR DETERMINATION: By letter dated February 3, 1999,
you appealed Advice of Counsel, No. 99 -500 issued on January 5, 1999. The appeal of
Advice states that it is arguable that you have the power to take or recommend official
action of a non - ministerial nature resulting in an economic impact of greater than de
minimis on the interests of any person based upon your job description. By letter dated
February 4, 1999, you were notified of the date, time, and location of the public meeting.
In your initial request for an advisory, you submitted facts which may be fairly
summarized as follows.
You retired from your position as a Senior Civil Engineer Manager with the working
title of District Bridge Engineer with District 11 -0 of the Commonwealth of Pennsylvania,
Department of Transportation ( "PennDOT ") on December 30, 1994. You were rehired
because of your "comprehensive and unique knowledge" of the Fort Pitt Bridge and Tunnel
reconstruction. Your job function was to coordinate the project as a temporary wage
employee with the working title of Fort Pitt Bridge Coordinator. You were reappointed each
year to that position. Your duties included overseeing plan preparation, serving as liaison
to other government agencies, scheduling, performing cost control and "constructability,"
Johnson, 99 -002
March 10, 1999
Page 2
and programming. Your job description and job specification classification have been
obtained from PennDOT, which documents are incorporated herein by reference.
You planned to resign this position on December 31, 1998 and sought an advisory
from the State Ethics Commission regarding any restrictions that would affect your future
employment in the private sector.
Advice of Counsel 99 -500 concluded that in your position as a temporary wage
employee /bridge coordinator, you were a public employee so that upon your retirement on
December 31, 1998 you became a former public employee subject to the one -year
prohibition against representation before your former governmental body, PennDOT.
In your appeal, it appears that you question your status as a former public employee
subject to the Ethics Act based upon your job description.
At the public meeting on February 26, 1999, you appeared and offered commentary,
which may be fairly summarized as follows. Your job duties require an understanding of the
project. The Fort Pitt Bridge and Tunnel is a main artery to Pittsburgh that has a drastic
effect upon the 145,000 vehicles that daily use the bridge and tunnel. Gridlock can very
easily occur given that the Port Authority and Pittsburgh also have plans in the area which
affect traffic.
Following retirement, you were asked to return to coordinate the project to ensure
that plans were done according to accepted standards and that there were no conflicts
between those plans and the plans of the other agencies or between plans within the main
plan. You checked and revised plans, coordinated work and checked schedules so that if
there were errors or mistakes, the problems would be corrected.
You performed the above work for the last four years until your retirement on
January 8, 1999. You state that you performed purely ministerial engineering work. You
retained your previous title of Senior Civil Engineer Manager so that you could be brought
back at a wage that was commensurate with your years of experience and expertise. Your
prior title was solely for payroll purposes; you assert that you were not a manager. You
had no contact with personnel in any of the other districts. You state that you were similar
to a contract employee.
You are currently employed by JMT, a Baltimore, Maryland firm which is in the
process of opening an office in Pittsburgh.
III. DISCUSSION: Although our review of this matter is de novo, we will limit our
analysis to your status under the Ethics Act since the basis of your appeal is that you were
not a public employee. If you were not a public employee, then you would not have
become a former public employee upon termination of service and would not be subject to
the restrictions of Section 1103(g).
The Ethics Act defines the term "public employee" as follows:
Section 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;
Johnson, 99 -002
March 10, 1999
Page 3
(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 Regulations of the State Ethics Commission similarly define 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.
(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 recommen-
dations.
(H) The individual's recommendations or actions are
an inherent and recurring part of his position.
(1) 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.
Johnson, 99 -002
March 10, 1999
Page 4
51 Pa. Code §11.1.
Status as a "public employee" subject to the Ethics Act is determined by applying
the above definition 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.
Commw. Ct. 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.
You concede that the project is very complex and complicated and you were
brought back because of your expertise. You were classified and compensated at the rate
of a Senior Civil Engineer Manager. You tracked consultant processes and ensured that all
invoices and billings were correct so that there were no overcharges. You tracked design,
engineering construction, and right of way costs to ensure that there were no overruns.
You tracked the latest cost estimates of all phases of design construction so that there
were no overruns or insufficiencies as to budgeted funds. The total budget for the project
was $80 million. As to recommendations at design review meetings, you provided updates
and if there were problems, you provided options to get back on schedule.
(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.
Johnson, 99 -002
March 10, 1999
Page 5
As per your job description of a temporary wage employee with the working title of
Fort Pitt Bridge Coordinator, you had the ability to take or recommend official action with
respect to subparagraph (5) within the definition of "public employee" as set forth in the
Ethics Act, 65 Pa.C.S. §1102. These activities would also meet the criteria for determining
your status as a public employee under the Regulations of the State Ethics Commission,
specifically at 51 Pa. Code §11.1, "public employee," subparagraph (ii). Specifically, you
had input as to questions regarding structural technical reviews which were directed to the
consultants of the Bridge Unit for resolution; responsibility for coordinating the design of
the Bridge and Tunnel project; and you made recommendations at design review meetings.
As to the above, the focus is on what you could do under your job description as
well as what you actually did. Your duties fall within the definition of public employee both
in the Ethics Act and in the Regulations. Based upon the above judicial directives, the
provisions of the Ethics Act, the State Ethics Commission Regulations, the opinions of this
Commission, and in light of your duties and responsibilities, the necessary conclusion is
that you were a "public employee" subject to the Ethics Act. Upon your resignation on
January 8, 1999, you became a former public employee subject to the restrictions and
prohibition of Section 1103(g) of the Ethics Act.
As for our interpretations of the restrictions of Section 1103(g), they have been so
often recited that we see no need to reiterate them herein. We have reviewed the Advice
of Counsel and are satisfied that it accurately apprises 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.
Advice of Counsel, No. 99 -500 is affirmed.
IV. CONCLUSION: A temporary wage employee /Bridge Coordinator with the
Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT ") is a "public
employee" subject to the Public Official and Employee Ethics Act and the Regulations of
the State Ethics Commission. Accordingly, following termination of service, the former
public employee became subject to the restrictions and prohibition of Section 1103(g) of
the Ethics Act, relative to his former governmental body PennDOT.
Advice of Counsel 99 -500 is affirmed.
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 must include a detailed
explanation of the reasons as to why reconsideration should be granted in conformity with
51 Pa. Code §21.29(b).
By the Commission,
Daneen E. Reese
Chair
Commissioner Louis W. Fryman dissents