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Home My WebLink About05-595 LoveJesse A. Love 6101 Ann Street Harrisburg, PA 17111 ADVICE OF COUNSEL November 28, 2005 05 -595 Re: Public Employee; Statement of Financial Interests; Section 1103(g); Business Intern; PennDOT. Dear Ms. Love: This responds to your letter dated October 26, 2005, by which you requested advice from the State Ethics Commission. Issue: Whether as a business intern with the Pennsylvania Department of Transportation, hereinafter ("PennDOT"), you are to 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. Facts: You are a Business Intern with PennDOT in Engineering District 8 -0. You have submitted a copy of a job description for the position of Project /Intern Monitor, which you state was provided to you by the Human Resource Department. It shall be assumed for purposes of this advisory that the job description for a Project /Intern Monitor accurately reflects your duties and responsibilities as a Business Intern. Per the job description, you are responsible for the following duties: familiarizing yourself with PennDOT publications regarding record retention and disposition, existing Design Division record management practices and associated tools such as Microsoft Access or Excel databases; personally viewing existing record retention areas to verify existing record retention practices; and organizing existing and future record retention management system(s) based on PennDOT publications regarding record retention and disposition. You state that you are also responsible for scanning paper files and inputting data. You state that you were recently offered a position with a civil engineering consulting firm that has ongoing contracts with PennDOT. You ask whether the restrictions under Section 1103(g) of the Ethics Act apply to you. 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 Love, 05 -595 November 28, 2005 Page 2 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. Before your question regarding the applicability of Section 1103(g) can be addressed, an initial determination must be made as to whether 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. 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. (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. Love, 05 -595 November 28, 2005 Page 3 (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. (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. Love, 05 -595 November 28, 2005 Page 4 (C) School teachers and clerks of the schools. 51 Pa. Code § 11.1. In applying the definition of "public employee" and the related regulatory criteria to the functions of your position, the necessary conclusion is that in your capacity as a Business Intern for PennDOT in Engineering District 8 -0, you are not to be considered a "public employee" as that term is defined in the Ethics Act. Based upon an objective review, 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." Thus, you are not subject to the disclosure requirements of the Ethics Act, and you are not required to file Statements of Financial Interests. Because you are not a "public employee," Section 1103(g) of the Ethics Act does not apply to you. The only provisions of the Ethics Act that apply to you are Sections 1103(b) and 1103(c) which apply to everyone. For your information, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer 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. Lastly, 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 an interpretation of the Ethics Act. Conclusion: In your capacity as Business Intern with PennDOT in Engineering District 8 -0, you are not to be considered a `` ublic employee" as that term is defined by the Public Official and Employee Ethics Act ("Ethics Act "). Accordingly, in that capacity, you are not subject to the disclosure requirements of the Ethics Act and you are not required to file Statements of Financial Interests. Because you are not a "public employee," Section 1103(g) of the Ethics Act does not apply to you. The only provisions of the Ethics Act that apply to you are Sections 1103(b) and 1103(c) which apply to everyone. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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 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. 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 Love, 05 -595 November 28, 2005 Page 5 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