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Home My WebLink About07-547Lori Graham 1074 Putnam Drive Tylersburg, PA 16361 Dear Ms. Graham: ADVICE OF COUNSEL June 15, 2007 07 -547 This responds to your letters received April 23, 2007, and May 4, 2007, and your faxed transmission of May 7, 2007, by which you requested advice from the State Ethics Commission. Issue: Whether as a Transportation Equipment Operator A with the C ommonwealth 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) of the Ethics Act pertaining to former public officials /public employees. Facts: You are currently employed as a Transportation Equipment Operator A with PennDOT. Your position with PennDOT is in the Maintenance department. In the winter, you operate a tandem dump truck for snow removal and are on -call for emergency snow removal response. Throughout the remainder of the year, you work on labor- intensive projects, including laboring and flagging on an asphalt patching crew. You are considering employment with two firms that are PennDOT "Business Partners." You state that if you would obtain employment with either firm, you would be working as a Consultant Inspector. The prospective work would consist of construction inspection and would require you to document work, track materials, apply specifications, and perform other non -labor intensive duties as to work performed by a construction contractor. You seek guidance as to whether the Ethics Act would impose any restrictions upon you following termination of your employment with PennDOT. You have submitted a document as a copy of a job description for your position with PennDOT. However, upon review, the job description that you have provided is not your official, current job description. It also erroneously references your class code as 93120, which is for the classification of "Automotive Mechanic Supervisor." Your official job description has been obtained from PennDOT. It is incorporated herein by reference. Your official job description designates your class code as 91380, Graham, 07 -547 June 15, 2007 Page 2 which is for the classification of "Transportation Equipment Operator A." The job classification specifications for your position under job code 91380 have been obtained and are incorporated herein by reference. Per your official PennDOT job description, your duties and responsibilities include the following: • Operating equipment used for construction and maintenance work; • Performing manual laboring duties; • Performing minor repairs and preventive maintenance work on equipment and assisting diesel mechanics in making major repairs to equipment; • Maintaining equipment records; and • Demonstrates the operation of assigned equipment to other employees. Per the job classification specifications under job code 91380, a Transportation Equipment Operator A: • Operates equipment used for construction and maintenance work; • Performs manual work, including unloading trucks, cleaning culverts, erecting signs, repairing guiderails or barriers, cutting grass and brush, erecting and tearing down snow fences, and digging ditches; • Performs minor repairs and preventive maintenance on equipment and assists mechanics in making major repairs to equipment; • Maintains equipment records; and • Demonstrates the operation of assigned equipment to other employees. Based upon the above, you ask whether the Ethics Act would impose prohibitions or restrictions upon you with respect to your plans for future employment in the private sector, following termination of employment 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: Graham, 07 -547 June 15, 2007 Page 3 (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. (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. Graham, 07 -547 June 15, 2007 Page 4 (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 superinten- dents, 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. 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 Transportation Equipment Operator A 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 job description and the job classification specifications, you are not responsible for taking or recommending official action of a non - ministerial nature with Graham, 07 -547 June 15, 2007 Page 5 regard to any of the five categories set forth in the Ethics Act's definition of the term "public employee." 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 Transportation Equipment Operator A 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 "), 65 Pa.C.S. § 1102. Consequently, upon termination of your current Commonwealth employment, Section 1103(g) of the Ethics Act, pertaining to former public 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 requestor 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. Graham, 07 -547 June 15, 2007 Page 6 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