HomeMy WebLinkAbout89-581 BingamanSTATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
November 8, 1989
Ms. Trudy G. Bingaman
16 Fox Chase Road
Harrisburg, PA 17111
Re: Environmental Chemist; Public Employee; FIS
89 -581
Dear Ms. Bingaman:
This responds to your letter of August 24, 1989 or Financial
Interest disclosure appeal, which will be treated as a request for
advice from the State Ethics Commission.
Issue: You ask whether in your capacity as a Environmental Chemist
II with the Department of Environmental Resources, hereinafter, DER,
you are to be considered a "public employee" as that term is defined
in the Public Official and Employee Ethics Law, and therefore,
whether you are required to file a Statement of Financial Interests.
Facts: You question whether your activities and functions fall
within the purview of the definition of "public employee" as that
phrase is defined in the Ethics Law and the regulations of this
Commission. In order to review the question presented, we will
briefly outline the duties and responsibilities associated with
your position as contained in your job .description and the
classification specifications for this position. Your duties and
responsibilities, as set forth in these two documents are
incorporated herein by reference. The classification specification
for an employee in this position provides:
An employe in this class performs a variety of duties in the
Department of Environmental Resources involving the regulation of
industrial and municipal facilities to ensure compliance with
Federal and Commonwealth rules and regulations governing the
disposal, storage, treatment, discharge, and transportation of
hazardous waste, industrial waste, and toxic materials. Work
involves developing, amending, and interpreting rules, regulations,
policies, and procedures governing hazardous wastes, industrial
wastes, and toxic materials. Work involves providing technical
advice to Departmental and industry officials involving assessments
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of the potential risks of toxic, hazardous, and industrial wastes.
Work also involves evaluating proposals for the disposal of
industrial residue and hazardous wastes with respect to chemical
implications, evaluating the risk potential of particular wastes
based on chemical constituents and their acute and chronic
toxicities, bio- accumulation potential, and toxic or hazardous
impact on treatment systems. Work includes training field personnel
and county health personnel on proper sampling techniques and
testing procedures, conducting inspections of high risk treatment
plans, water systems, and streams for contamination; and developing
sampling methods and procedures for hazardous wastes monitoring
systems. Work also includes providing technical assistance to the
Bureau of Laboratories on the analysis of non - routine organic
substances, and reviewing industry plans for proposed hazardous,
toxic, or industrial waste storage, treatment, or disposal
facilities for compliance with Federal and Commonwealth regulations,
policies, and procedures; reviewing proposed legislation for
possible impact on the hazardous, toxic, or industrial waste
programs and recommending whether management should support or
oppose the legislation; and serving as an expert witness for the
Department. Work is assigned in the form of goals, objectives, and
priorities, and the employe exercises considerable freedom in
planning, scheduling, and completing assignments. Work is reviewed
upon completion by a professional supervisor through reports and
conferences for attainment of program goals and objectives,
completeness, and overall quality.
In your letter you argue that you are not a public employee
because your actions are ministerial in nature and your position
has no bearing on contracting, procurement, or the approval of
expenditures. In your financial disclosure appeal you assert that
your duties consist of technical reviews to insure compliance with
Pennsylvania Code. Although your duties require technical
recommendations to be made relative to the permitting process, you
state that the recommendations are not the sole basis for official
action because the entire process requires a number of technical
reviews which are made by different people who have different areas
of expertise. In addition, you state that your judgement is
exercised in a technical nature and follows the conventions of the
discipline rather than any arbitrary "notions ". Finally you note
that your duties are not supervisory in nature and do not involve
any contracting, procurement or approval of expenditures.
Discussion: The question to be answered is whether you, in your
capacity as a Environmental Chemist II for DER, are to be considered
a "public employee." The Ethics Law defines that term as follows:
Section 2. Definitions
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"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
minimus nature on the interests
of any person. 65 P.S. §402.
"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.
The regulations of the State Ethics Commission similarly
define the term public employee as above and also set forth that
the term includes any individual:
(B) who meets the criteria of either subclause
(I) or (II):
(I) The individual is:
( -a -) a person who normally
performs his responsibility in the
field without on -site supervision;
( -b -) the immediate supervisor of
a person who normally performs his
responsibility in the field without
on -site supervision; or
( -c -) the supervisor of any
highest level field office.
(II) The individual is a person:
( -a -) who:
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( -1 -) has the authority to make
final decisions;
( -2 -) has the authority to
forward or stop recommendations from
being sent to the person or body with
the authority to make final decisions;
( -3 -) prepares or supervises the
preparation of final recommendations;
or
( -4 -) makes final technical
recommendations; and
( -b -) whose recommendations or
actions:
( -1 -) are an inherent and
recurring part of his position; and
( -2 -) affect organizations other
than his own organization.
(ii) 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.
(iii) Persons in the positions listed below are
generally considered public employees.
(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 before
the public.
(D) Solicitors, engineers, managers,
and secretary- treasurers acting as
managers, police chiefs, chief clerks,
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chief purchasing agents, grant and
contract managers, housing and
building inspectors, 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 business managers and
principals.
(iv) Persons in the positions listed below are
generally not considered public employees.
(A) City clerks, other clerical staff, road
masters, secretaries, police officers, welfare
case workers, maintenance workers, construction
workers, detectives, equipment operators, and
recreation directors.
(B) Law clerks, court criers, court
reporters, probation officers,
security guards, and writ servers.
(C) School teachers and clerk of the
schools. 51 Pa. Code 51.1.
We must review the question you present under these provisions
of the statute and the regulations of the Commission in light of
your duties and obligations as described in your job description
and /or classification specifications, under which you operate. Our
inquiry necessarily focuses on the job itself and not on the
individual incumbent in the position, the variable functions of the
position, or the manner in which a particular individual occupying a
position may carry out those functions. See Phillips v. State
Ethics Commission, 79 Pa. Cmwlth. 491, 470 A.2d 659 (1984); and
Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982).
Also, in reviewing your question, the Commonwealth Court in
its ruling in Phillips, supra, at page 661, directs us to construe
coverage of the Ethics Act broadly, rather than narrowly, and
conversely, directs that exclusions from the Ethics Law should be
narrowly construed. Based upon this directive and reviewing the
definition of "public employee" in the statute and the regulations
and opinions of this Commission, in light of your job functions and
the information available to us, we must conclude that you are a
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"public employee" subject to the financial reporting and disclosure
requirements of the State Ethics Act.
It is clear that in your capacity as a Environmental Chemist
II, you have the ability to recommend official action with respect
to subparagraphs (4) and (5) within the definition of "public
employee" as set forth in the Ethics Law, 65 P.S. 5402.
Specifically, the classification specification provides in part for
an Environmental Chemist II that you provide technical advice to the
Department and Industry officials and evaluate proposals for the
disposal of industry residue and hazardous waste as well as train
field personnel and conduct inspections on high risk treatment
plans, water systems and streams; in addition, you review industry
plans for proposed hazardous toxic or industry waste storage as to
compliance and you also recommend whether management should support
or oppose proposed legislation. Such activities fall within
subparagraphs four and five of the definition of public employe as
noted. These activities fall within the definition of public
employee as contained in the regulations of the Commission in
Section 1.1, subparagraphs (B)(II). 51 Pa. Code 1.1. Under these
circumstances and given your duties and responsibilities as outlined
above, you are a "public employee" as that term is defined in the
Ethics Law.
Conclusion: You are to be considered a "public employee" in your
capacity as a Environmental Chemist II with DER. Accordingly, you
must file a Statement of Financial Interests for each year in which
you hold the position outlined above and for the year following your
termination of this service.
If you have not already done so, a Statement of Financial
Interests must be filed within 15 days of this Advice. This
Statement of Financial Interests would report information of the
prior calendar year. Please file the original of such a Statement
with this Commission to insure compliance with this Advice, provide
the yellow copy to your Personnel Office and retain the green copy
for your records.
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.
such.
This letter is a public record and will be made available as
Finally, if you disagree with this Advice or if you have any
reason to challenge same, you may request that the full Commission
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review this Advice. A
will be scheduled and a
issued. Any such appeal
the Commission within 15
51 Pa. Code 52.12.
personal appearance before the Commission
formal Opinion from the Commission will be
must be in writing and must be received at
days of the date of this Advice pursuant to
Vincent' J. Dopko
Chief Counsel