HomeMy WebLinkAbout07-004 MCGILLOPINION OF THE COMMISSION
Eugene McGill
PennDOT District 3 -0
715 Jordan Avenue
Montoursville, PA 17815
Dear Mr. McGill:
I. ISSUE:
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Paul M. Henry
Raquel K. Bergen
Nicholas A. Colafella
Reverend Scott Pilarz
DATE DECIDED: 1/9/07
DATE MAILED: 1/23/07
You seek a determination as to whether, in your
capacity as a Real Estate Specialist 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
07 -004
This Opinion is issued in response to the appeal of Advice of Counsel, 06 -588,
which was issued on October 2, 2006.
Whether a Real Estate Specialist with the Commonwealth of Pennsylvania,
Department of Transportation ( "PennDOT "), 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, and particularly, the
requirements for filing Statements of Financial Interests.
II. FACTUAL BASIS FOR DETERMINATION:
By faxed letter dated October 30, 2006, you appealed Advice of Counsel, 06 -588,
which was issued on October 2, 2006.
Your initial advisory request presented facts and arguments that were summarized
in the Advice of Counsel as follows:
McGill, 07 -004
January 23, 2007
Page 2
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.
• 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."
McGill, Advice of Counsel 06 -588 at 1 -2.
Advice of Counsel 06 -588 determined that in your position as a Real Estate
Specialist for PennDOT, you would be considered a "public employee" subject to the
Ethics Act and Regulations of this Commission. The Advice of Counsel determined that
McGill, 07 -004
January 23, 2007
Page 3
you have the ability to take or recommend official action of a nonministerial nature that
satisfies subparagraph (5) of the statutory definition of "public employee" (pertaining to
any other activity where the official action has an economic impact of greater than a de
minimis nature on the interests of any person" (65 Pa.C.S. § 1102)), as well as the criteria
set forth in this Commission's Regulations for determining status as a public employee,
specifically at 51 Pa. Code § 11.1, "public employee," subparagraph (ii). The Advice of
Counsel specifically noted your power /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 property 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.
With regard 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, the Advice of Counsel noted that the definition of public employee is not limited
to taking official action but also encompasses merely recommending official action.
The Advice of Counsel finally determined that as a "public employee" subject to the
Ethics Act and the Regulations of this Commission, you are required to file Statements of
Financial Interests pursuant to the Ethics Act.
By faxed letter dated October 30, 2006, you appealed Advice of Counsel 06 -588.
Your appeal letter did not state any particular basis for the appeal, but merely exercised
the right to appeal the Advice of Counsel.
By letter dated November 8, 2006, you were notified of the date, time and location
of the public meeting at which your request would be considered.
The position description and the job classification specifications for your position
(job code 17148) are incorporated herein by reference.
III. 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, 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 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.
Our review of this matter is de novo (Clarke, Opinion 04 -012; Spear, Opinion 04-
011): "De novo review entails, as the term suggests, full consideration of the case anew.
The reviewing body is in effect substituted for the prior decision maker and redecides the
case." D'Arciprete v. D'Arciprete, 323 Pa. Super. 430, 470 A.2d 995 (1984) (citations
omitted). See also, Hayes v. Donohue Designer Kitchen, Inc., 2003 Pa. Super. 84, 818
A.2d 1287 (2003); Commonwealth v. Krut, 311 Pa. Super. 64, 457 A.2d 114 (1983); In re
McGill, 07 -004
January 23, 2007
Page 4
Audit of School District, 354 Pa. 232, 47 A.2d 292 (1946).
We shall begin our analysis by reviewing the relevant provisions of the Ethics Act
and the Regulations of this Commission.
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 this 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-
McGill, 07 -004
January 23, 2007
Page 5
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.
(C) School teachers and clerks of the schools.
51 Pa. Code § 11.1.
The following terms are relevant to your inquiry and are defined in the Ethics Act as
follows:
§ 1102. Definitions
McGill, 07 -004
January 23, 2007
Page 6
"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, Phillips, supra.
In applying the objective test in the instant matter, we conclude that you are a public
employee subject to the Ethics Act and Regulations of this Commission.
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; and individuals who make final
technical recommendations. Gilliland /Reese, Opinion 05 -005.
The objective sources defining your position (job classification specifications and
position description) establish that as a Real Estate Specialist with PennDOT, you have
the authority, inter alia, to do the following:
(Per Job Classification Specifications)
• Negotiate with property owners for the settlement of complex acquisition projects,
which projects may include commercial and industrial properties, partial takings
involving property improvements, major right of way projects, and major roadway
widening in commercial or industrial areas;
• Provide relocation assistance to displaced persons;
• Resolve acquisition issues, prepare relocation plans, and determine relocation
payments;
• Critique acquisition plans for the purpose of reducing right of way acquisition costs;
• Recommend administrative settlements;
• Prepare appraisal reports justifying determined real estate values and damage
estimates on claims of nominal value and uncomplicated trading of unimproved
land;
• Identify excess property, maintain an inventory of leased property, negotiate lease
terms, prepare lease agreements, and make arrangements for repairs to be
McGill, 07 -004
January 23, 2007
Page 7
performed of leased property;
• Conduct bid openings and auction sales;
• Manage a District Outdoor Advertising and Junkyard Control Program;
• Review requests to dispose of excess land owned by PennDOT; and
• Review contracts and leases and all types of relocation assistance claims prepared
by the districts.
(Per Position Description)
• Negotiate with property owners for the settlement of non complex acquisition
projects, which include strip acquisitions, vacant parcels of land, minor rural
easements, and smaller parcels that do not involve property improvements or
impact the remaining value of the affected property;
• Negotiate with property owners for the relocation of residential owner and /or tenant
occupants;
• Work with lien holders and /or their attorneys in an effort to get liens released or
paid from just compensation;
• Contact and coordinate with mortgage holders, lien holders, and judgment holders
for release and payoff figures; and
• Seek alternate methods of designing and conducting a project in order to minimize
the amount of funds being expended.
Based upon the above, we find that your authority includes responsibility for taking
or recommending official action of a nonministerial nature with regard to category (5) of the
Ethics Act's definition of "public employee," specifically, any other activity where the
official action has an economic impact of greater than a de minimis nature on the interests
of any person." 65 Pa.C.S. § 1102. There is no question that in negotiating for the
settlement of acquisition projects, recommending administrative settlements, and
determining relocation payments and the like, your official job duties and responsibilities
would have a significant economic impact upon the interests of affected property owners
as well as the interests of Pennsylvania taxpayers with regard to the expenditure of public
funds for real estate acquisition.
As noted above, the objective sources defining your position (job classification
specifications and position description) are dispositive of your status under the Ethics
Act —not claims as to actual duties performed.
Having determined that you are a public employee subject to the Ethics Act and the
Regulations of this Commission, it necessarily follows that you are required to file
Statements of Financial Interests pursuant to the Ethics Act.
Based upon the above analysis, we deny the appeal and affirm McGill, Advice of
Counsel 06 -588.
Lastly, the propriety of the proposed course of conduct has only been addressed
under the Ethics Act.
IV. CONCLUSION:
A Real Estate Specialist employed by the Commonwealth of Pennsylvania,
Department of Transportation ( "PennDOT "), would be considered a "public employee"
subject to the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq. ( "Ethics
Act ") and Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq. The
Real Estate Specialist would be required to file Statements of Financial Interests pursuant
to the Ethics Act. Advice of Counsel 06 -588 is affirmed.
The propriety of the proposed conduct has only been addressed under the Ethics
McGill, 07 -004
January 23, 2007
Page 8
Act.
Pursuant to Section 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.
Finally, a party may request the Commission to reconsider its Opinion. The
reconsideration request must be received at this Commission within thirty days of the
mailing date of this Opinion. The party requesting reconsideration must include a detailed
explanation of the reasons as to why reconsideration should be granted in conformity with
51 Pa. Code § 21.29(b).
By the Commission,
Louis W. Fryman
Chair