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HomeMy WebLinkAbout07-510 PARISThomas J. Paris Field Maintenance /Firefighter -Chief Union Steward Erie International Airport /Tom Ridge Field 4411 West 12 Street Erie, PA 16505 Dear Mr. Paris: ADVICE OF COUNSEL February 16, 2007 • Identifying and correcting safety /risk management problems. 07 -510 This responds to your facsimile transmissions dated January 18, 2007, by which you requested advice from the State Ethics Commission. Issue: Whether as an Airfield Maintenance /Firefighter with Erie International Airport /Tom Ridge Field, 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 are employed as an Airfield Maintenance /Firefighter with Erie International Airport/Tom Ridge Field ( "the Airport "). You are also the Chief Union Steward at the Airport. You have submitted a copy of the job description for your position, which is incorporated herein by reference. Per the job description, your duties and responsibilities include the following: • Performing airfield inspections. • Responding to aircraft rescue and firefighting emergencies. • Operating and performing minor repairs on power equipment. • Evaluating, maintaining, and repairing asphalt and concrete pavements and plumbing. • Evaluating, maintaining, and repairing electrical systems, including specialized equipment such as passenger loading bridges, automatic doors, and sound systems. Paris, 07 -510 February 16, 2007 Page 2 You state that you do not make major purchases, but you do purchase hand tools, items such as light bulbs, and parts to repair the airfield and equipment. You state that when "big items" are to be purchased, management asks for your input, but management makes the decisions as to what to recommend. You ask whether, in your capacity as an Airfield Maintenance /Firefighter with the Airport, 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 individuals employed in the said position are required to file Statements of Financial Interests. 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only to the person whose conduct is in question, his authorized representative, or, when applicable, his appointing body or employer. To the extent you have inquired as to the conduct of other individuals employed as Airfield Maintenance /Firefighters with the Airport without their express permission, you are considered a third party without legal standing. Therefore, this advisory must necessarily be limited to addressing your inquiry as to your own status /conduct. Administrative notice is taken of the fact that the Airport is owned and operated by the Erie Municipal Airport Authority "Authority "). This advisory interprets your statement that you are employed with the Airport to mean that you are employed by the Authority to work at the Airport. 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. Paris, 07 -510 February 16, 2007 Page 3 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) office. (D) decisions. The individual is the supervisor of a highest level The individual has the authority to make final (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. Paris, 07 -510 February 16, 2007 Page 4 (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 "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 persons 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 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 Paris, 07 -510 February 16, 2007 Page 5 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 the submitted facts as to your duties and responsibilities, the necessary conclusion is that you are a "public employee" and are subject to the financial reporting and disclosure requirements of the Ethics Act. In your capacity as an Airfield Maintenance /Firefighter, you 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.C.S. § 1102. Specifically, you have the authority to purchase tools, items, and parts used for maintaining the airfield and repairing the airfield and equipment. Under the submitted facts, which do not reference any constraints upon your purchasing authority that would render such authority ministerial, the necessary conclusion is that your purchasing authority is sufficient to establish your status as a public employee subject to the Ethics Act. The foregoing activities would also meet the criteria for determining your status as a public employee under the Regulations of the State Ethics Commission, specifically at 51 Pa. Code § 11.1, "public employee," subparagraph (i). 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. It is noted that you have submitted limited facts as to the nature of the airfield inspections that you perform and the recommendations that you make as to major purchases. You are advised that your authority to perform airfield inspections and to make recommendations as to major purchases could provide additional support for the conclusion that you are a "public employee" and are subject to the provisions of the Ethics Act. Conclusion: As an Airfield Maintenance /Firefighter employed by the Erie Municipal Airport Authority at the Erie International Airport /Tom Ridge Field, 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 Paris, 07 -510 February 16, 2007 Page 6 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, Robin M. Hittie Chief Counsel