HomeMy WebLinkAbout23-526 Kennedy
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
May 10, 2023
To the Requester:
Jessica Kennedy
23-526
Dear Ms. Kennedy:
This responds to your email received April 12, 2023, by which you requested an advisory
from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue
presented below:
Issue:
Whether, as a Roadway Programs Technician 2 with the Pennsylvania Department of
Transportation (“PennDOT”) under job code 12511, you are 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., such that
upon termination of your employment with PennDOT, the post-employment restrictions of
Section 1103(g) of the Ethics Act — which apply to former public officials/public
employees — would be applicable to you.
Brief Answer: NO. Upon review of your official Commonwealth position description and
the job classification specifications under job code 12511, as a Roadway Programs
Technician 2 with PennDOT, you are not a “public employee” subject to the provisions of
the Ethics Act and the Regulations of the State Ethics Commission. Consequently, the post-
employment restrictions of Section 1103(g) of the Ethics Act would not be applicable to you
upon termination of your employment with PennDOT.
Facts:
You seek a determination as to whether, as a Roadway Programs Technician 2 with
PennDOT under job code 12511, you are a “public employee” subject to the Ethics Act and the
Regulations of the State Ethics Commission. In particular, you seek guidance as to whether the
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May 10, 2023
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post-employment restrictions of Section 1103(g) of the Ethics Act would be applicable to you upon
termination of your employment with PennDOT.
You have submitted a copy of your official Commonwealth position description (“the
Position Description”), which is incorporated herein by reference. A copy of the job classification
specifications for the position of Roadway Programs Technician 2 (job code 12511) has been
obtained and is also incorporated herein by reference.
Per the Position Description, you provide advanced technical work in Roadway Programs
Management. Under the direction of the Bonded Roads Coordinator, you are responsible for
performing advanced technical review, analysis, and inspection of posted roadways. You also
review any associated damage repair work caused by over-posted-weight haulers for compliance
and quality. Your job duties and responsibilities include:
Reviewing Posted Road and Letter of Local Determination applications;
Performing roadway inspections before, during and after the hauling, and
performing damage repair construction inspection;
Conducting inspections to analyze and assess level of damage and making
recommendations for needed repairs;
Analyzing inspection data to recommend if roadway restrictions are needed or if
the roadway needs to be included in the five-year pavement plan;
Entering permit information into the Roadway Management System and issuing
permits;
Entering and tracking Legal Agreement Tracking System of Excess Maintenance
Agreement information; and
Communicating hauling activity, damages assessed and repairs, and schedules with
the County Management team.
Position Description, at 1.
Per the job classification specifications under job code 12511, a Roadway Programs
Technician 2 performs advanced technical duties in the review, analysis and development of
roadway management and maintenance operations in accordance with the policies and procedures
of the Roadway Management System (“RMS”) or Maintenance Operations and Resources
Information System (“MORIS”). The examples of work performed by a Roadway Programs
Technician 2 include the following:
Reviews work data, such as work units completed, person-hours spent, equipment
utilization, materials usage, and fuels usage; ensures that data is in the proper format
for computer input; and reviews output data to identify reasons for work program
problems in assigned maintenance organization;
Reviews and analyzes output data from the automated roadway management or
maintenance management subsystems to ensure that work program goals are
achieved and to maintain overall system control in assigned maintenance
organization;
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May 10, 2023
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Serves as team leader on RMS roadway and bridge evaluation programs by
overseeing the collection of data on conditions of pavement surfaces using
systematic techniques or electronic equipment;
Performs calibrations on electronic testing equipment;
Collects and analyzes data on a district-wide or department-wide basis dealing with
RMS or MORIS management programs;
Uses EDP techniques to store data and prepare reports on district or department-
wide RMS or MORIS management programs;
Serves as team member on a quality assurance team which reviews maintenance
functions;
Analyzes the application of manpower, equipment and materials used to schedule
work or to study cost data to determine cost effectiveness;
Monitors the status of work budgets and recommends adjustments to the plan to
meet limitations imposed by the budgets;
Participates in the planning and scheduling of moderately complex operations in
accordance with roadway management and maintenance systems at the district or
bureau level;
Aids in the development, verification and implementation of work standards used
in the roadway management or maintenance system; and
Reviews and analyzes output data for the highway inventory control system to
ensure materials purchased are consistent with systems requirements.
Job classification specifications (job code 12511), at 1-2.
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;
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(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 recommendations.
(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.
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(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.
(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.
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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 regard to or the exercise of the person’s own judgment as to
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.
The 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. 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 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), allocatordenied, 607
Pa. 708, 4 A.3d 1056 (2010); Phillips, supra.
The first portion of the statutory definition of “public employee” includes individuals with
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.
Code § 11.1 (“public employee”)(ii), include not only individuals with authority to make final
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 definition of "public employee" and the related regulatory criteria to the
submitted facts as to the duties of your current position, the necessary conclusion is that in your
capacity as a Roadway Programs Technician 2 with PennDOT under job code 12511, you are not
a "public employee" as that term is defined in the Ethics Act. Based upon an objective review of
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May 10, 2023
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the Position Description and the job classification specifications, you are 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.”
The post-employment restrictions of Section 1103(g) of the Ethics Act apply only to former
public officials/public employees:
§ 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).
Because the duties and responsibilities of your current position would not bring you within
the definition of “public employee” as set forth in the Ethics Act, Section 1103(g) of the Ethics
Act would not be applicable to you upon termination of your employment as a Roadway Programs
Technician 2 with PennDOT and would not restrict you with regard to your post-employment
activities.
The only provision of the Ethics Act that applies to you is Section 1103(b), which applies
to everyone. For your information, Sections 1103(b) and 1103(c) of the Ethics Act provide in part
that no person shall offer or give to a public official/public employee anything of monetary value
and no public official/public employee shall solicit or accept anything of monetary value based
upon the understanding that the vote, official action, or judgment of the public official/public
employee would be influenced thereby. Reference is made to these provisions of the law not to
imply that there has been or will be any transgression thereof but merely to provide a complete
response to the question presented.
The propriety of the proposed conduct has only been addressed under the Ethics Act; the
applicability of any other statute, code, ordinance, regulation or other code of conduct other than
the Ethics Act has not been considered in that they do not involve aninterpretation of the Ethics
Act. Specifically not addressed herein is the applicability of the Governor’s Code of Conduct.
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.
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.
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Any such appeal must be in writing and must be actually receivedat 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,
Bridget K. Guilfoyle,
Chief Counsel