HomeMy WebLinkAbout22-005 JonesPHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806
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613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
OPINION OF THE COMMISSION
Before: Nicholas A. Colafella, Chair
Mark R. Corrigan, Vice Chair
Roger Nick
Melanie DePalma
Michael A. Schwartz
Shelley Y. Simms
DATE DECIDED: 4/21/22
DATE MAILED: 4/22/22
22-005
To the Requester/Appellant:
Cecil J. Jones, Esquire
Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.
Dear Attorney Jones:
This Opinion is issued in response to the appeal of Advice of Counsel 22-502.
I. ISSUE:
Whether an individual employed as the Chief Mechanic/Plant Process Chief for the Lower
Bucks County Joint Municipal Authority would be considered a "public employee" 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.
IL FACTUAL BASIS FOR DETERMINATION:
By letter dated February 23, 2022, you appealed Advice of Counsel 22-502 (also referred
Jones, 22-005
April 22, 2022
Page 2
to herein as the "Advice of Counsel" or the "Advice"), which was issued on January 26, 2022.
You represent Leonard Rodak ("Mr. Rodak"). In your initial advisory request, you asked
whether Mr. Rodak, in his capacity as the Chief Mechanic/Plant Process Chief for the Lower Bucks
County Joint Municipal Authority (the "LBCJMA"), is a "public employee" subject to the Ethics
Act and the Regulations of the State Ethics Commission, and in particular, the requirements for
filing Statements of Financial Interests. Your initial advisory request presented facts that were
summarized in the Advice of Counsel 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.
Per the Job Description, Mr. Rodak's duties as the Chief
Mechanic/Plant Process Chief 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
Jones, 22-005
April 22, 2022
Page 3
• Performing other related duties as required.
Job Description, at 1-3.
Mr. Rodak is supervised by and reports directly to the Plant
Manager. You state that Mr. Rodak is not a member of
"management" or the Supervisory Unit of the LBCJMA. You state
that 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, Advice of Counsel 22-502, at 1-2.
In responding to your advisory request, Advice of Counsel 22-502 determined that Mr.
Rodak, in his capacity as the Chief Mechanic/Plant Process Chief for the LBCJMA, is a "public
employee" subject to the Ethics Act and the Regulations of this Commission, and in particular, the
requirements for filing Statements of Financial Interests pursuant to the Ethics Act. The Advice
determined that 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 matter that "has an economic impact of greater than a de minimis nature on the interests of any
person" with respect to subparagraphs (4) and (5) within the definition of "public employee" as set
forth in the Ethics Act, 65 Pa.C.S. § 1102. In this regard, the Advice concluded that the duties and
authority of Mr. Rodak to: (1) assign and supervise work of other mechanics and Lab Technicians
at the wastewater treatment plant; and (2) oversee and direct the Lab Technicians at the wastewater
treatment plant in all plant process changes, are sufficient to establish status as a "public employee"
subject to the Ethics Act.
By letter dated February 23, 2022, you appealed Advice of Counsel 22-502. Your letter
did not state any particular basis for the appeal but merely exercised the right to appeal the Advice
of Counsel.
By letter dated April 1, 2022, you were notified of the date, time and location of the public
meeting at which your appeal would be considered.
At the public meeting on April 21, 2022, you and Mr. Rodak appeared and offered
commentary, which included the following points.
You expressed your view that Mr. Rodak is not responsible for taking or recommending
official action of a non -ministerial nature that would bring him within the Ethics Act's definition
of the term "public employee." You stated that based upon Mr. Rodak's job description, his
position is most accurately described as that of a maintenance worker, a position which the
Jones, 22-005
April 22, 2022
Page 4
Regulations of the State Ethics Commission provide is not generally considered to be a "public
employee."
Mr. Rodak is a Member of the International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America ("U.A.W."), Local 1612. Mr. Rodak's position of
Chief Mechanic/Plant Process Chief is subject to the collective bargaining agreement between the
U.A.W. and the LBCJMA for the LBCJMA's non -supervisory employees. Mr. Rodak reports
directly to the Plant Manager, who in turn reports to the Managing Director. Mr. Rodak does not
supervise or direct any LBCJMA employees, and as a member of the non -supervisory unit of the
U.A.W., he is prohibited by U.A.W. rules from carrying out any supervisory duties as an LBCJMA
employee.
As the Plant Process Chief, Mr. Rodak oversee and directs Lab Technicians at the
wastewater treatment plant in all process changes, which processes consist of the stages at which
wastewater is treated and filtered. Mr. Rodak works with the Lab Technicians who perform
scientific testing on water samples for the presence of certain levels of chemicals and pollutants.
Based on those readings, Mr. Rodak makes adjustments to the equipment within the wastewater
treatment plant. Mr. Rodak does not supervise the Lab Technicians, who instead report to the
Managing Director.
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), Opinions are issued to the requester based upon the facts that the
requester has submitted. In issuing a ruling based upon the facts that the requester has submitted,
this 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
material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An Opinion only affords a
defense to the extent the requester has truthfully disclosed all 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
Jones, 22-005
April 22, 2022
Page 5
(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.
We shall begin our analysis by noting that pages 3-6 of Jones, Advice of Counsel 22-502
accurately recite: (1) the definitions of the terms "ministerial action" and "non -ministerial actions"
as set forth in the Ethics Act, 65 Pa.C.S. § 1102; (2) the applicable criteria as set forth in this
Commission's regulations, 51 Pa. Code § 11.1 (definition of "public employee"); and (3) the
judicially approved "objective test" by which status as a "public employee" subject to the Ethics
Act is determined, all of which recitation is incorporated herein by reference.
As noted in the Advice of Counsel, the aforesaid objective test applies the Ethics Act's
definition of the term "public employee" and the related regulatory criteria to the powers and duties
of the position itself, which are typically 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 specifically considered and approved this Commission's objective test and has
directed that 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.
In applying the objective test in the instant matter, the necessary conclusion is that Mr.
Rodak, in his capacity as the Chief Mechanic/Plant Process Chief for the LBCJMA, is not to be
considered a "public employee" as that term is defined in the Ethics Act. Based upon an objective
review of the job description for Mr. Rodak's position with the LBCJMA, Mr. Rodak is not
responsible for taking or recommending official action of a non -ministerial nature with regard to
any of the five categories set forth in the Ethics Act's definition of the term "public employee."
Accordingly, we hold that Mr. Rodak, in his capacity as the Chief Mechanic/Plant Process
Chief for the LBCJMA, is not a "public employee" subject to the Ethics Act or the Regulations of
this Commission, and therefore he is not required to file Statements of Financial Interests pursuant
to the Ethics Act.
Based upon the above analysis, we grant the appeal and reverse Jones, Advice of Counsel
22-502.
Jones, 22-005
April 22, 2022
Page 6
Lastly, this matter has been addressed only under the Ethics Act.
Conclusion:
Leonard Rodak, in his capacity as the Chief Mechanic/Plant Process Chief for the Lower
Bucks County Joint Municipal Authority, is not a "public employee" subject to the provisions of
the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sec, or the
Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq., and therefore he is not
required to file Statements of Financial Interests pursuant to the Ethics Act. The appeal is granted.
Advice of Counsel 22-502 is reversed.
This matter has been addressed only under the Ethics Act.
Pursuant to Section 1107(10) of the Ethics Act, 65 Pa.C.S. § 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.
By the Commission,
cc
Nicholas A. Col afella
Chair