HomeMy WebLinkAbout07-554 GODDARDKeith Goddard
214 S. 29" Street
Harrisburg, PA 17103
Dear Mr. Goddard:
ADVICE OF COUNSEL
July 6, 2007
07 -554
This responds to your letter dated June 4, 2007, by which you requested advice
from the State Ethics Commission.
Issue: Whether as a Clerical Supervisor 1 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) of the
Ethics Act pertaining to former public officials /public employees.
Facts: You are currently employed as a Clerical Supervisor 1 (Secretary to the
Section Chief) in the Consultant Agreement Section of PennDOT. 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 00190) has also been
obtained and is incorporated herein by reference.
Per your official PennDOT position description, your duties and responsibilities
include the following:
• Serving as secretary to the Section Chief, professional engineers, and all other
employees in the Consultant Agreement section;
• Directly supervising clerical staff by planning and organizing work assignments;
• Reviewing legal documents developed in the Consultant Agreement Section and
extracting appropriate language and information to develop and type
correspondence to the Districts, Central Office, Consultants, Office of Chief
Counsel, and Comptroller's Office for review and signature by the Section Chief;
• Managing the Section's Quality Assurance Program for processing and paying
consultant invoices, which includes reviewing invoices to ensure that the invoice
amount is justifiable, in the proper format and allowable under the terms and
conditions set forth in the Engineering Agreement, and determining invoice
document conformity based on established guidelines;
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July 6, 2007
Page 2
• Performing a variety of fiscal duties including: independently checking fiscal
forms for correct coding and amount; independently reviewing current and
previous invoices, checking for fiscal accuracy; verifying fiscal information with
engineers; verifying wage /overhead rates; and verifying contract amounts to
preclude overpayment for unauthorized items;
• Generating quarterly reports, agreement backlogs, Disadvantaged Business
Enterprise reports, and Agreement /Supplement execution tracking using
appropriate systems and databases;
• Preparing Employee Progress Review reports, approving employee leave, and
taking appropriate disciplinary action, if necessary; and
• Finding appropriate solutions to resolve problems with projects according to
PennDOT policies and related material.
Per the job classification specifications under job code 00190, a Clerical
Supervisor 1:
• Interviews and recommends the selection of applicants for clerical positions
within the section;
• Adjusts employee complaints and recommends decisions on formal grievances;
• Evaluates the performance of employees in the clerical unit supervised;
• Supervises and assigns work to the subordinate clerical staff;
• Supervises the typing of documents and maintenance of files, and plans and
provides guidance in the establishment and reorganization of filing systems as
needed;
• Registers, certifies, and insures outgoing mail and demonstrates the operation of
office and mail processing machines to clerical staff;
• Determines supply needs for the work unit and requisitions office supplies from a
central stores unit; and
• Reviews the assigning of code numbers to financial and budgetary disbursement
of funds and grants.
You state that in your position as a Clerical Supervisor 1, your core function is to
develop letters and memos and answer office telephones, while serving as secretary to
the Section Chief. You further state that during your Commonwealth employment, you
have had no involvement with the managing and /or procuring of engineering contracts;
administering or monitoring grants or subsidies; planning or zoning; or inspecting,
licensing, regulating or auditing any person. Since October 2006, you have been
supervising a temporary clerical pool employee, which you assert does not give you the
authority to have an economic impact on any person.
You state that you have been pursuing an Associates degree in Civil
Engineering. You plan to resign from Commonwealth employment effective July 13,
2007, and pursue a career in the private sector. You state that your future employment
will consist of performing design tasks which could include horizontal /vertical geometry,
drainage design, guide rail design, erosion control, traffic control plans, signing and
Goddard, 07 -554
July 6, 2007
Page 3
pavement marking plans, cross sections, quantity takeoffs and cost estimating, and plan
preparation.
Based upon the submitted facts, you request guidance as to whether you would
be subject to the restrictions of Section 1103(g) of the Ethics Act upon 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,
as a Clerical Supervisor 1 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.
Goddard, 07 -554
July 6, 2007
Page 4
(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.
(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.
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July 6, 2007
Page 5
(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 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 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.
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; individuals who
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July 6, 2007
Page 6
make final technical recommendations; and individuals whose recommendations are an
inherent and recurring part of their positions. See, e.q., Reese /Gilliland, Opinion 05-
005.
In applying the objective test in the instant matter, the necessary conclusion is
that, in your capacity as a Clerical Supervisor 1 for PennDOT, you would be considered
a "public employee" subject to the Ethics Act. As a Clerical Supervisor 1, your
responsibilities and authority extend beyond clerical duties. You have the ability to take
or recommend official action with respect to subparagraph (5) within the definition of
"public employee" as set forth in the Ethics Act, 65 Pa.C.S. § 1102. For example, you
have the authority to conduct interviews and make recommendations as to the selection
of applicants for clerical positions within the Consultant Agreement Section. This
authority in and of itself is sufficient to establish your status as a public employee
subject to the Ethics Act. There is no question that in making recommendations with
regard to the hiring of clerical staff in the Consultant Agreement Section of PennDOT,
your official job duties and responsibilities would have a significant economic impact
upon the interests of affected applicants as well as the interests of taxpayers with
regard to the expenditure of public funds. Cf., Mihalik, Advice 07 -511.
Additionally, your authority to prepare employee progress review reports, take
appropriate disciplinary action, recommend decisions on formal grievances, manage the
Section's Quality Assurance Program for processing and paying invoices, and perform
fiscal duties as detailed in your position description and job classification specifications
would provide additional support for the conclusion that you are a "public employee"
subject to the provisions of the Ethics Act.
The foregoing authority 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, subparagraphs (i) and (ii).
Consequently, upon termination of public service, you would become 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
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July 6, 2007
Page 7
submitting bid or contract proposals which are signed by or
contain the name of a former public official or public
employee.
"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
Goddard, 07 -554
July 6, 2007
Page 8
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 90 -006; Sharp, Opinion 90- 009 -R.
The governmental body with which you would be deemed to have been
associated upon termination of public service would be PennDOT in its entirety
including, but not limited to, the Consultant Agreement Section. Therefore, for the first
year after termination of your employment with PennDOT, Section 1103(g) of the Ethics
`
Act would apply and restrict "representation" of "persons" before PennDOT.
Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are
advised that the Ethics Act would not prohibit you from accepting employment in the
private sector. However, to the extent that your job duties would require interaction with
PennDOT in a manner that would constitute prohibited "representation" as delineated
above, your performance of such activities would be prohibited by Section 1103(g) of
the Ethics Act during the first year following termination of your employment 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: In your capacity as a Clerical Supervisor I 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"). Upon termination of employment with PennDOT, you would become a former
public employee" subject to Section 1103(g) of the Ethics Act. The former governmental
body would be PennDOT in its entirety including, but not limited to, the Consultant
Agreement Section. 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, should service be terminated, as outlined above, 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.
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July 6, 2007
Page 9
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