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HomeMy WebLinkAbout07-519 BARKLEYNoreen Barkley 50 Second Avenue P.O. Box 148 Heilwood, PA 15745 Dear Ms. Barkley: ADVICE OF COUNSEL March 22, 2007 07 -519 This responds to your letter dated February 15, 2007, received February 20, 2007, by which you requested an advisory from the State Ethics Commission. Issue: Whether as a Clerk Typist 3 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 ( "Ethics Act'), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, and upon leaving Commonwealth employment, the restrictions of Section 1103(g) pertaining to former public officials /public employees. Facts: You are currently employed as a Clerk Typist 3 with PennDOT in the C ontract Management Unit Office within the Design Unit of District 10. You have submitted a copy of your position description, which is incorporated herein by reference. A copy of the job classification specifications for your position (job code 00230) has also been obtained and is incorporated herein by reference. Per the position description and the job classification specifications, your duties and responsibilities include the following: • Complex clerical work. • Entering and updating information in the Contract Management System for the generating of bid proposals. • Assisting in checking bid proposal data, bid schedule of prices, and plan summary and tabulation sheets for accuracy and completeness. • Performing a variety of specialized typing for the Contract Management Unit. • Using desk top publishing program(s) to create reports and other specialized assignments. • Reviewing special provisions for proper content and form. • Performing clerical duties for the Assistant District Executive. • Utilizing specialized clerical equipment. • Providing training and guidance to new employees. You state that after you retire, you would like to obtain a position doing the same type of work in private industry. You seek guidance as to whether you would be subject Barkley, 07 -519 March 22, 2007 Page 2 to the restrictions of Section 1103(g) of the Ethics Act upon termination of service with PennDOT. 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. In responding to your inquiry, the threshold question to be addressed is whether, in your current capacity with PennDOT, you would be considered a public employee subject to the Ethics Act. 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. Barkley, 07 -519 March 22, 2007 Page 3 (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 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: Barkley, 07 -519 March 22, 2007 Page 4 (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. 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 Clerk Typist 3 with PennDOT, you are not to be considered a "public employee" as that term is defined in the Ethics Act. Based upon an objective review of 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." Cf., Schreffler, Advice of Counsel, 03 -598. Section 1103(g) of the Ethics Act only applies 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 you are not a "public employee" as defined in the Ethics Act, Section 1103(g), pertaining to former public officials /public employees, would 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. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: In your capacity as a Clerk Typist 3 with the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), you are not to be considered a "public employee" as that term is defined by the Public Official and Employee Ethics Act ( "Ethics Act "). Consequently, upon termination of your current Commonwealth employment, Section 1103(g) of the Ethics Act, pertaining to former public Barkley, 07 -519 March 22, 2007 Page 5 officials /public employees, would not apply to you. Sections 1103(b) and 1103(c) of the Ethics Act 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 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