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HomeMy WebLinkAbout07-552 KETTERJeremy K. Ketter Michael Baker, Jr., Inc. 100 Airside Drive Moon Township, PA 15108 Dear Mr. Ketter: ADVICE OF COUNSEL July 5, 2007 07 -552 This responds to your letter dated May 23, 2007, and your faxed transmissions of May 31, 2007, by which you requested advice from the State Ethics Commission. Issue: Whether, in your former capacity as an Intern /Student Employee 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, such that the restrictions of Section 1103(g) of the Ethics Act would now be applicable to you. Facts: You state that during the past three years you completed four rotations as a " , T:)-op" intern /student employee ( "Intern ") with PennDOT's District 11 -0 Engineering Office. During your final rotation, which was from May 2006 to August 11, 2006, you worked as an Intern in the District 11 -0 Construction Unit, where you assisted with inspection work on local roadway rehabilitation projects. You state that your responsibilities included: ensuring that the contractor completed the contract in accordance with state specifications; determining when to take samples for testing; keeping a daily log of work performed; and completing any required paperwork for submission. You state that you had no authority to direct the contractor, and that if you found that the contractor was not complying with design specifications, you made a report to the Inspector -in- Charge, who then informed the contractor of the non- compliant work. You state that the Inspector -in- Charge had to sign all paperwork that you completed. You have submitted a copy of the PennDOT Position Description that applied to you during your aforesaid final rotation as an Intern with PennDOT. The submitted Position Description is incorporated herein by reference. Per the PennDOT Position Description, your duties and responsibilities as an Intern included the following: • Reviewing and providing comments regarding construction plans, special provisions, and State and Municipal reimbursement agreements during the Design Stage; • Providing man -hour analysis for inspection needed and consultation during construction; Ketter, 07 -552 July 5, 2007 Page 2 • Reviewing and approving the proposed project staffing for construction inspection; • Reviewing the contract to check that certain requirements are met during the field review; • Visiting the project randomly to monitor all construction activities, documentation, and inspection; • Reviewing proposed additional /extra work and recommending it for Federal participation; • Reviewing submitted work orders for accuracy; • Evaluating submissions of time extensions; • Attending final inspection and monitoring punch list completions; • Reviewing, checking, and processing reimbursement requests received from local municipalities for construction and inspection costs; • Monitoring and notifying PennDOT if additional funds are needed during the Closeout Stage; and • Monitoring the need for any necessary supplemental reimbursements. Although the Position Description states that "[a]II duties will be performed under the supervision of the Local Project Coordinator" (Position Description, at 1), it further provides as follows: DECISION MAKING: Decisions are made by the individual based on the directives in the Project Office Manual, the requirements in Pub. #408, Pub #39 and signed contract documents. Based on the directives, the individual will either make the decision or refer to the supervisor. Position Description, at 2. You state that the Human Resources Officer for District 11 -0 informed you that the aforesaid Position Description is generic for all Interns who work in the Construction Unit. You have submitted an additional copy of the Position Description on which you have crossed off duties that you assert you did not perform. You are currently employed as an intern for Michael Baker Jr., Inc. ( "Baker "), where you hope to participate with inspection work and management training on PennDOT projects during the months of June and July 2007. Your supervisor has requested that you seek an official interpretation as to your eligibility to perform inspection duties for Baker on PennDOT projects. You seek guidance as to whether, in your former capacity with PennDOT, you would be considered a "public employee" as defined in the Ethics Act, such that you would now be subject to the post- termination restrictions of Section 1103(g) of the Ethics Act. 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 Ketter, 07 -552 July 5, 2007 Page 3 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. 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 you have not specifically indicated that in your former capacity as an Intern with PennDOT, you stood in an employer - employee relationship with PennDOT. This advisory is issued based upon the assumption that in your former capacity as an Intern with PennDOT, you were an employee of PennDOT. In responding to your inquiry, the threshold question to be addressed is whether in your former 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. Ketter, 07 -552 July 5, 2007 Page 4 (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: Ketter, 07 -552 July 5, 2007 Page 5 (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 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, Philips 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 the 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. Your assertions as to the actual duties that you performed as an Intern are not controlling with regard to the determination of your status under the Ethics Act. Rather, as noted above, status as a "public employee" subject to the Ethics Act is determined based upon objective sources establishing what an individual has the authority to do in a given position rather than on claimed actual job performance. In applying the objective test in the instant matter, the necessary conclusion is that, in your former capacity as an Intern for PennDOT, you would be considered a "public employee." In your capacity as an Intern, you had the ability to take or recommend official action with respect to subparagraphs (4) and (5) within the definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. § 1102. Specifically, the following duties set forth in the Position Description would be sufficient to establish status as a "public employee" subject to the Ethics Act: Ketter, 07 -552 July 5, 2007 Page 6 • Reviewing and approving the proposed project staffing for construction inspection; • Reviewing the contract to check that certain requirements are met during the field review; • Visiting the project randomly to monitor all construction activities, documentation, and inspection; • Reviewing proposed additional /extra work and recommending it for Federal participation; • Reviewing submitted work orders for accuracy; • Evaluating submissions of time extensions; • Attending final inspection and monitoring punch list completions; and • Reviewing, checking, and processing reimbursement requests received from local municipalities for construction and inspection costs. 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," subparagraphs (i) and (ii). Consequently, upon termination of public service, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. While Section 1103(g) of the Ethics Act does not prohibit a former public official /public employee from accepting a position of employment, it does restrict the former public official /public employee with regard to "representing" a "person" before the governmental body with which he has been associated ": § 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) (Emphasis added). The terms "represent," "person," and "governmental body with which a public official or public employee is or has been associated" are specifically defined in the Ethics Act as follows: § 1102. Definitions "Represent." To act on behalf of any other person in any activity which includes, but is not limited to, the following: personal appearances, negotiations, lobbying and submitting bid or contract proposals which are signed by or contain the name of a former public official or public employee. Ketter, 07 -552 July 5, 2007 Page 7 "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. 65 Pa. C. S. § 1102. The term "Person" is very broadly defined. It includes, inter alia, corporations and other businesses. It also includes the former public employee himself, Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur, Opinion 95 -007. The term "representation" is also broadly defined to prohibit acting on behalf of any person in any activity. Examples of prohibited representation include: (1) personal appearances before the former governmental body or bodies; (2) attempts to influence; (3) submission of bid or contract proposals which are signed by or contain the name of the former public official /employee; (4) participating in any matters before the former governmental body as to acting on behalf of a person; and (5) lobbying. Popovich, Opinion 89 -005. Listing one's name as the person who will provide technical assistance on a proposal, document, or bid, if submitted to or reviewed by the former governmental body, constitutes an attempt to influence the former governmental body. Section 1103(g) also generally prohibits the inclusion of the name of a former public official/ public employee on invoices submitted by his new employer to the former governmental body, even though the invoices pertain to a contract that existed prior to termination of public service, Shay, Opinion 91 -012. However, if such a pre - existing contract does not involve the unit where the former public employee worked, the name of the former public employee may appear on routine invoices if required by the regulations of the agency to which the billing is being submitted. Abrams/Webster, Opinion 95 -011. A former public official /public employee may assist in the preparation of any documents presented to his former governmental body. However, the former ublic official /public employee may not be identified on documents submitted to the former governmental body. The former public official /public employee may also counsel any person regarding that person's appearance before his former governmental body. Once again, however, the activity in this respect should not be revealed to the former governmental body. The Ethics Act would not prohibit or preclude making general informational inquiries to the former governmental body to secure information which is available to the general public, but this must not be done in an effort to indirectly influence the former governmental body or to otherwise make known to that body the representation of, or work for the new employer. Section 1103(g) only restricts the former public official /public employee with regard to representation before his former governmental body. The former public official /public employee is not restricted as to representation before other agencies or entities. However, the "governmental body with which a public official /public employee is or has been associated" is not limited to the particular subdivision of the agency or other governmental body where the public official /employee had influence or control but extends to the entire body. See, Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion No. 90 -006; Sharp, Opinion 90- 009 -R. Ketter, 07 -552 July 5, 2007 Page 8 The governmental body with which you are deemed to have been associated upon termination of public service is PennDOT in its entirety including, but not limited to, District 11 -0. Therefore, for the first year after termination of your service with PennDOT, Section 1103(g) of the Ethics Act would apply and restrict `representation" of "persons" before PennDOT. You are advised that for the first year following termination of your employment with PennDOT, Section 1103(g) of the Ethics Act would prohibit you from engaging in inspection work and /or management training activities on a PennDOT project unless you would be able to do so without engaging in prohibited representation before PennDOT. As noted above, the restrictions imposed upon you by Section 1103(g) of the Ethics Act would end one year after you terminated your service with PennDOT. Based upon the facts that have been submitted, this Advice has addressed the applicability of Section 1103(g) only. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee 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: Based upon the submitted facts, in your former capacity as an intern /student employee ( "Intern ") for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), you would be considered a "public employee" subject to the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq. ( "Ethics Act "). Upon termination of service with PennDOT, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is PennDOT in its entirety including, but not limited to, District 11 -0. Section 1103(g) of the Ethics Act would restrict you from engaging in any activity that would constitute prohibited representation before PennDOT for one year following termination of Commonwealth employment. The restrictions as to representation outlined above must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Act. Further, since service has been terminated, the Ethics Act would require that a Statement of Financial Interests be filed by no later than May 1 of the year after termination of service. 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. Ketter, 07 -552 July 5, 2007 Page 9 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