HomeMy WebLinkAbout03-555 MontMichele Mont
Employee Training Specialist
Pennsylvania Turnpike Commission
Human Resources Department
P.O. Box 67676
Harrisburg, PA 17106
Dear Ms. Mont:
ADVICE OF COUNSEL
June 10, 2003
03 -555
Re: Public Employee; FIS; Employee Training Specialist; Pennsylvania Turnpike
Commission; Human Resources Department.
This responds to your Financial Interest Disclosure Appeal dated May 7, 2003,
which will be treated as a request for advice from the State Ethics Commission.
Issue: Whether as an Employee Training Specialist with the Pennsylvania
Turnpike Commission, you would be considered a ' public employee" subject to the
Public Official and Employee Ethics Act (the "Ethics Act "), 65 Pa.C.S. § 1101 et seq.,
and the Regulations of the State Ethics Commission, and particularly, the requirements
for filing Statements of Financial Interests.
Facts: You seek a determination as to whether, in your capacity as an Employee
rT alning Specialist with the Pennsylvania Turnpike Commission ( "Turnpike
Commission'), you are a "public employee" subject to the Ethics Act and the
Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code §
11.1. You specifically question whether you are required to file Statements of Financial
Interests. You have provided copies of your job description and organizational chart,
which documents are incorporated herein by reference. Your duties and responsibilities
include the following:
• Designing and developing courses of professional and job -skill development
(including skilled and semi- skilled trades) in support of the Turnpike Commission's
objectives. Development includes creating and producing all handouts, visual aids
and other support materials.
• Designing and conducting training needs assessment to assist with course
development and the Turnpike Commission's training plan and working together with
other incumbents to review and revise the strategic training plan annually.
Mont 03 -555
June 10, 2003
Page 2
• Preparing and conducting training programs and new hire orientations for Turnpike
Commission employees using recognized presentation techniques.
• Researching the Turnpike Commission's procedures and policy on various human
resources issues and reviewing Federal and State regulations, laws and court
decisions on a broad area of human resources issues.
• Designing valid test instruments that meet the staffing skills needed by various
departments and periodically reviewing the instruments to ensure compatibility with
the Turnpike Commission's needs.
• Acting as a resource /consultant to all department managers and supervisory
personnel to facilitate staff development and to address complex personnel issues.
• Reviewing training resources and products including videotapes, audiotapes, outside
course offerings, continuing education and available facilities and equipment.
• Participating in and managing non - training Human Resources responsibilities, as the
Turnpike Commission requires.
• Attending meetings and conducting training sessions throughout the Turnpike.
In your written submission dated May 7, 2003, and in a telephone conversation
with Commission staff on June 10, 2003, you provided the following information
regarding your review of available training facilities.
Your job duties include contacting hotels to determine the cost of using their
meeting facilities for the training sessions that you conduct. When you make such
inquiries, you are to obtain information regarding three facilities. For local facilities, if
the Turnpike Commission has an established relationship with a facility, it may simply
use that facility. Otherwise, you will visit the facilities. For a non -local site, the standard
but unwritten procedure is for you to contact the Turnpike Commission's Administrative
Officer at the site for recommendations as to facilities.
You make the necessary contacts and provide information to the Human
Resources Director regarding the facilities. In providing facility information to the
Human Resources Director, you may recommend a particular facility. For local
facilities, the Human Resources Director may visit facilities to confirm the information
you provide.
You state that you do not have permission or authority to approve any contracts
or to approve bills for payment. It is the Human Resources Director who determines
whether the Turnpike Commission will engage in a contract with a hotel. The Human
Resources Director also signs all contracts for such meeting facilities.
Finally, you state that there are clerical employees in your office who perform this
same function who have not been asked to complete Statements of Financial Interests.
Discussion: 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;
Mont 03 -555
June 10, 2003
Page 3
65 Pa.C.S.
The
employee"
(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.
§ 1102.
Regulations of the State Ethics Commission similarly define the term "public
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.
(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.
Mont 03 -555
June 10, 2003
Page 4
(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.
(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.
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 [ V . 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.
Based upon the above judicial directives, the provisions of the Ethics Act, the
State Ethics Commission Regulations, and the opinions of the State Ethics
Commission, in light of your duties and responsibilities, the necessary conclusion is that
Mont 03 -555
June 10, 2003
Page 5
you are a "public employee" subject to the financial reporting and disclosure
requirements of the Ethics Act.
It is clear that in your capacity as an Employee Training Specialist, ou have the
ability to take or recommend official action with respect to subparagraph 1) within the
definition of "public employee" as set forth in the Ethics Act, 65 Pa. .S. § 1102.
Specifically, you exercise discretion in selecting which facilities you will submit to the
Human Resources Director for consideration, and you have the authority to recommend
the facility that you feel is the best. These activities would also meet the criteria for
determining your status as a ublic employee under the Regulations of the State Ethics
Commission, specifically at 51 Pa. Code § 11.1, "public employee," subparagraph (ii).
Therefore, you are a "public employee" subject to the Ethics Act and you are required to
file Statements of Financial Interests pursuant to the Ethics Act.
As for others in your office who you state perform the same function, this Advice
is limited to addressing your conduct as the requestor.
Conclusion: In your capacity as an Employee Training Specialist with the
Pennsylvania Turnpike Commission, you are a "public employee subject to the Public
Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq., and the Regulations of the
State Ethics Commission, 51 Pa. Code § 11.1 et seq. Accordingly, you must file a
Statement of Financial Interests each year in which you hold the aforesaid position and
the year following your termination of such service.
If you have not already done so, a Statement of Financial Interests must be filed
within 30 days of this Advice.
Pursuant to Section 1107(11), 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 requestor has disclosed
truthfully all the material facts and committed the acts complained of in reliance on the
Advice given.
This letter is a public record and will be made available as such.
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.
Sincerely,
Vincent J. Dopko
Chief Counsel