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HomeMy WebLinkAbout84-560 GingMr. Robert P. Ging, Jr., Esquire Professional Office Building 432 Boulevard of the Allies Pittsburgh, PA 15219 RE: Clerk Typist II; DER; Section 3(e); Not Covered Dear Mr. Ging: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 April 26, 1984 ADVICE OF COUNSEL 84 -560 This responds to your letter of March 23, 1984, in which you, as Attorney for Ms. Jean Wiser, requested advice from the State Ethics Commission. Issue: You ask whether Ms. Wiser, a Clerk Typist II with the Department of Environmental Resources, Bureau of Mining and Reclamation, is a public employee for purposes of coverage under the State Ethics Act. Facts: You indicate that Ms. Wiser is currently employed as a Clerk Typist II with the Department of Environmental Resources, Bureau of Mining and Reclamation, Greensburg District Office. You indicate that Ms. Wiser holds the same position as that discussed in Advice 84 -515, where a Clerk Typist II was deemed not to be a public employee subject to the restrictions of the Ethics Act. Reference to that Advice is reinforced by Ms. Wiser's job description as well as language contained within the arbitration opinion enclosed with your request for advice. From these items it may be generally stated that Ms. Wiser's position is basically one dealing with typing, filing, maintaining files, and other duties normally associated with clerical support responsibilities. You also indicate that Ms. Wiser is interested in obtaining a secretarial position with an engineering firm which does consulting work with DER. In this regard, you ask what restrictions, if any, would be placed on Ms. Wiser should she obtain such a position. You indicate that you do not believe Ms. Wiser is a public employee within the meaning of the Ethics Act, and that she is, thus, not subject to any restrictions pursuant to the Ethics Act. You have, therefore, requested a ruling from the State Ethics Commission as to whether or not Ms. Wiser is indeed a public employee within the meaning of the Act and if so, what restrictions she would experience in her new job. Mr. Robert P. Ging, Jr., Esquire April 26, 1984 Page 2 Discussion: The initial question to be reviewed is whether or not Ms. Wiser is considered a "public employee" as that term is defined in the State Ethics Act as follows: "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonmiinisterial nature with regard to: (1) contracting or procurement; (2) administering or monitcring 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 minimus nature on the interests of any person. "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. 65 P.S. 402. Based upon this definition and in light of Ms. Wiser's job description as well as the language in the arbitration decision, we conclude that Ms. Wiser is not to be considered a "public employee" as that term is defined in the Ethics Act. Thus, because Ms. Wiser is not within the classification of the term "public employee ", the restrictions applicable to an individual who is a "former public employee" as contained in Section 3(e) of the Ethics Act are inapplicable to Ms. Wiser should she terminate her service with the Department of Environmental Resources. It should be noted that even if Ms. Wiser were to be considered a "public employee" as set forth in the Ethics Act, the mere fact that she would seek or have obtained employment with an engineering firm that does consulting work with DER would not be prohibited under the Ethics Act. Any restrictions upon a former public employee are primarily centered upon personal appearances before or representation of a new employer before the agency with which the former public employee had been associated. However, given our conclusion as set forth above, and in light of Ms. Wiser's job description, Advice No. 84 -515, as well as the language and the decision of the arbitration panel enclosed with your request for advice, Ms. Wiser, as a Clerk Typist II, should not be considered to be a "public employee." Upon termination of her employment with DER, she would have no obligation as a "former public employee" nor would she be subject to any restrictions under Section 3(e) of the Ethics Act. Mr. Robert P. Ging, Jr., Esquire April 26, 1984 Page 3 Conclusion: In her position as a Clerk Typist II with DER, Ms. Wiser is not to be considered a "public employee" as that term is defined in the State Ethics Act. Accordingly, upon termination of her employment with the Commonwealth, Ms. Wiser would not be a former public employee subject to any restrictions which would be applicable to such persons as set forth in Section 3(e) of the Ethics Act. Her activities in the year following her termination of employment with DER may be undertaken without restriction under Section 3(e) of the Ethics Act. Pursuant to Section 7(9)(ii), this 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, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. CW /rdp This letter is a public record and will be made available as such. Sincerely, andra S. Ch ► stianson General Cou sel