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HomeMy WebLinkAbout22-502 Jones PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL January 26, 2022 To the Requester: Mr. Cecil J. Jones, Esquire 22-502 Dear Attorney Jones: This responds to your letter dated January 5, 2022, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issue presented below: Issue: Would an individual employed as the Chief Mechanic/Plant Process Chief for the Lower subject to the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq., and particularly, the requirements for filing Statements of Financial Interests? Brief Answer: YES. Upon review of the submitted Job Description, an individual employed as the Chief Mechanic/Plant Process Chief for the LBCJMA would be considered a public employee subject to the provisions of the Ethics Act and the Regulations of the State Ethics Commission and would therefore be required to file Statements of Financial Interests pursuant to the Ethics Act. Facts: You request an advisory from the Commission on behalf of Mr. Leonard Rodak (Mr. Rodak). The issue that is presented by your advisory request is whether Mr. Rodak, in his capacity Ethics Act and the Regulations of the State Ethics Commission, and in particular, the requirements Jones, 22-502 January 26, 2022 Page 2 for filing Statements of Financial Interests. You have submitted facts, the material portion of which may be fairly summarized as follows: Mr. Rodak has been employed as the Chief Mechanic/Plant Process Chief for the LBCJMA since 2005. You have submitted a copy of a job description for the position of Chief Mechanic/Plant Process Chief (Job Description), which is incorporated herein by reference. Per the Job Description, the Chief Mechanic/Plant Process Chief performs skilled work in preventative maintenance, maintenance and repairs on mechanical and electromechanical machinery and equipment throughout the LBCJMA. The Chief Mechanic/Plant Process Chief oversees and directs Lab Technicians at the wastewater treatment plant in all plant process changes and works with the Director of Operations and Plant Manager to ensure optimum treatment to maintain State compliance levels. include the following: Assigning and supervising work of other mechanics and Lab Technicians at the wastewater treatment plant; Maintaining maintenance records of plant tracking repair work; Performing preventative maintenance and emergency repairs on machinery and replacing parts when necessary; making necessary repairs and corrections to equipment; and cleaning blocked pipes and other plant equipment; Maintaining pump time and volume records; Maintaining inventory of mechanical and electrical parts needed to complete projects; ordering parts when needed with the approval of the Plant Manager and/or Director of Operations; Maintaining records, coordinating mechanical training, and assigning mechanics duties; Informing a superior of problems within the plant and other areas; Performing various housekeeping functions at the wastewater treatment plant, grounds, and buildings; and Performing other related duties as required. Job Description, at 1-2. Mr. Rodak is supervised by and reports directly to the Plant Manager. You state that Mr. as the Chief Mechanic/Plant Process Chief, Mr. Rodak may bring a concern to the attention of the Plant Manager and offer recommendations, but he does not have authority to take any official action on behalf of the LBCJMA on his own. If any requisitions are requested by Mr. Rodak for any items, such as supplies or services, they must be approved by the Plant Manager, and any requisitions over $500.00 in value also require the signature of the Managing Director. Jones, 22-502 January 26, 2022 Page 3 Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. 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 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. Jones, 22-502 January 26, 2022 Page 4 (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 individuals recommendations or actions are an inherent and recurring part of his position. (I) The individuals 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. (E) Court administrators, assistants for fiscal affairs and deputies for the minor judiciary. Jones, 22-502 January 26, 2022 Page 5 (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. The following terms are relevant to your inquiry and are defined in the Ethics Act as follows: § 1102. Definitions Ministerial action. An action that a person performs in a prescribed manner in obedience to the mandate of legal authority, without regar the desirability of the action being taken. Nonministerial actions. An action in which the person exercises his own judgment as to the desirability of the action taken. 65 Pa.C.S. § 1102. Status as a public employee subject to the Ethics Act is determined by an objective test. regulatory criteria to the powers and duties of the position itself. Typically, the powers and duties of the position are established by objective sources that define the position, such as the job description, job classification specifications, and organizational chart. The objective test considers what an individual has the authority to do in a given position based upon these objective sources, rather than the variable functions that the individual may actually perform in the position. See, Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion 04-002; Shienvold, Opinion 04-001; Shearer, Opinion 03-011. The Commonwealth Court of Pennsylvania has directed that Jones, 22-502 January 26, 2022 Page 6 coverage under the Ethics Act be construed broadly and that exclusions under the Ethics Act be construed narrowly. See, Quaglia v. State Ethics Commission, 986 A.2d 974 (Pa. Cmwlth. 2010), amended by, 2010 Pa. Commw. LEXIS 8 (Pa. Cmwlth. January 5, 2010), allocatur denied, 607 Pa. 708, 4 A.3d 1056 (2010); Phillips, supra. authority to take or recommend official action of a nonministerial nature. 65 Pa.C.S. § 1102. Likewise, the regulatory criteria for determining status as a public employee, as set forth in 51 Pa. decisions but also individuals with authority to forward or stop recommendations from being sent to final decision-makers; individuals who prepare or supervise the preparation of final recommendations; individuals who make final technical recommendations; and individuals whose recommendations are an inherent and recurring part of their positions. See, e.g., Reese/Gilliland, Opinion 05-005. Conclusion: In applying the objective test in the instant matter, the necessary conclusion is that in his employee subject to the Ethics Act and the Regulations of the State Ethics Commission. It is clear that as the Chief Mechanic/Plant Process Chief for the LBCJMA, Mr. Rodak has the responsibility of inspecting, licensing, regulating or auditing any person and the authority to take or recommend official action of a nonministerial nature as to matters that has an economic impact of greater than a de minimis nature on the interests of any person with respect to subparagraphs (4) and 65 Pa.C.S. § 1102. Specifically, the duties and authority of Mr. Rodak to: (1) assign and supervise work of other mechanics and Lab Technician at the Wastewater Treatment Plant; and his responsibility to (2) oversee and direct the Lab Technician at the Wastewater Treatment Plant in all plant process changes, are sufficient to estaThe foregoing authority would also meet the criteria for determining status as a public employee under the Regulations of the State Ethics Commission, ic Cf. (iv)(D). Therefore, you are advised that Mr. Rodak, in his capacity as the Chief Mechanic/Plant Process Chief for the LBCJMA, is a public employee subject to the provisions of the Ethics Act and the Regulations of the State Ethics Commission, and he is therefore required to file Statements of Financial Interests pursuant to the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, provided the requester has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. Jones, 22-502 January 26, 2022 Page 7 Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717-787-0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Respectfully, Brian D. Jacisin Chief Counsel