HomeMy WebLinkAbout06-588 McGillEugene G. McGill
PennDOT District 3 -0
715 Jordan Avenue
Montoursville, PA 17754
Dear Mr. McGill:
ADVICE OF COUNSEL
October 2, 2006
06 -588
This responds to your letter dated August 25, 2006, which will be treated as a
request for advice from the State Ethics Commission.
Issue: Whether as a Real Estate Specialist with the Commonwealth of
Pennsylvania, Department of Transportation ( "PennDOT "), 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 a Real Estate
S pecialist with PennDOT, you would be considered 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 submitted copies of your job description and the job classification
specifications for your position, which are incorporated herein by reference. Your duties
and responsibilities include the following:
• Negotiating with property owners for the settlement of complex acquisition
projects, including partial acquisitions that involve property improvements or have
an impact on the remaining value of the affected property and acquisitions that
involve major right of way projects and major roadway widening in commercial
and industrial areas.
• Resolving acquisition issues, the preparation of relocation plans, and the
determination of relocation payments.
• Recommending administrative settlements.
• Identifying excess property, maintaining an inventory of leased property,
negotiating lease terms, preparing lease agreements, collecting monies due for
rental of property, and making arrangements for repairs to be performed of
leased property.
McGill, 06 -588
October 2, 2006
Page 2
• Conducting bid openings and auction sales in connection with handling all sales
of excess right of way.
• Seeking alternate ways of redesigning and /or conducting a project in order to
minimize the amount of funds being expended.
• Reviewing requests to dispose of excess land owned by PennDOT.
• Reviewing all types of relocation assistance claims prepared by the districts and
reviewing contracts and leases.
You state that your position does not allow you to make unsupervised decisions
in the office or field. You do not have the authority to make any final decisions or to
stop recommendations from being sent to a person or department within PennDOT that
has the authority to make a decision concerning any claim on any project assigned to
District 3 -0. The nature of your daily work does not put you in a position wherein you
might be required to operate in a management position or in an out -of -class or acting
management /supervisory capacity. You state that Management Directive 205.10 does
not include your job classification or duties in the definition of a "public employee."
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
65 Pa.C.S. § 1102.
(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.
McGill, 06 -588
October 2, 2006
Page 3
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 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
McGill, 06 -588
October 2, 2006
Page 4
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 Mummau 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 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 a Real Estate Specialist, you have the ability to
take or recommend official action with respect to subparagraph (5) within the definition
of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. § 1102. Specifically, you
have the power and authority to negotiate with property owners for the settlement of
complex acquisition projects, including partial acquisitions that have an impact on the
remaining value of the affected p roperty and acquisitions that involve major roadway
widening in commercial and industrial areas; resolve acquisition issues; resolve the
preparation of relocation plans and the determination of relocation payments;
recommend administrative settlements; identify excess property; conduct bid openings
and auction sales in connection with handling all sales of excess right of way; maintain
an inventory of leased property; negotiate lease terms and prepare lease agreements;
make arrangements for repairs to be performed of leased property; seek alternate ways
of redesigning and /or conducting a project in order to minimize the amount of funds
being expended; review requests to dispose of excess land owned by PennDOT; review
all types of relocation assistance claims prepared by the districts; and review contracts
and leases.
McGill, 06 -588
October 2, 2006
Page 5
The foregoing activities would also meet the criteria for determining your status
as a p ublic employee under the Regulations of the State Ethics Commission, specifically
at 51 Pa. Code § 11.1, "public employee," subparagraph (ii). Therefore, you are
advised that you are a "public employee" subject to the Ethics Act and the regulations of
the State Ethics Commission, and you are required to file Statements of Financial
Interests pursuant to the Ethics Act.
As to your arguments that your position does not allow you to make
unsupervised decisions in the office or field, to make final decisions or stop
recommendations from being sent to a person or department within PennDOT that has
the authority to make such decisions, or to act in any type of management /supervisory
capacity, it is noted that the definition of public employee is not limited to taking official
action but also encompasses merely recommending official action. Parenthetically, it is
noted that it was previously determined in Gabriel, Advice of Counsel, 96 -545, Helsel,
Advice of Counsel, 99 -580, and Rudinski, Advice of Counsel, 04 -567, that a Real Estate
Specialist for PennDOT is a public employee as defined in the Ethics Act.
Conclusion: In your capacity as a Real Estate Specialist with the Commonwealth
of Pennsylvania, Department of Transportation ( "PennDOT "), you are a "public
employee' subject to the Public Official and Employee Ethics Act and the Regulations of
the State Ethics Commission. 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 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
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