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HomeMy WebLinkAbout84-515 ColnaDorothy L. Colna Bureau of Mining and Reclamation 203 Presqueisle Street Phillipsburg, Pennsylvania 16866 Dear Ms. Colna: Mailing Address. STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 January 31, 1984 ADVICE OF COUNSEL RE: Representation, Restrictions, Section 3(e) 84 -515 This responds to your letter of January 17, 1984, in which you request advice from the State Ethics Commission. Issue: You ask whether you face any restrictions under the Ethics Act with respect to your termination of employment with the Commonwealth. Facts: You indicate that you are currently employed as Clerk- Typist II with the Department of Environmental Resources, Region IV, in Phillipsburg, Pennsylvania. You indicate that your position is not and has never been a supervisory position by its responsibilities or salary scale. The position basically entails receiving and docketing permit applications, maintaining files, distributing information, logging and tracking the applications, assigning numbers to the applications, preparing notifications for mining permit and drainage applications, and for non -coal and regular service mine actions. The position is basically one dealing with typing, filing, maintaining files, and other duties normally associated with clerical support responsibilities. You indicate that you have accepted an offer of employment from a coal company which is to begin as of January 26, 1984. You ask whether you face any restrictions with respect to this employment, especially with respect to signing your name to any correspondence that might be submitted to the Department of Environmental Resources on behalf of your new employer and with respect to delivering items to the Department of Environmental Resources offices. Discussion: The initial question to be reviewed is whether or not your are considered to be a "public employee" as that term is defined in the State Ethics Act as follows: State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Dorothy L. Colna January 31, 1984 Page 2 "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. "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 reviewing this in light of your job description, we conclude that you are not to be considered a "public employee" as that term is set forth in the Ethics Act. It should be noted that the provisions of Section 3(e) of the Ethics Act, if you were a public employee, would apply to your conduct as a "former public employee" as follows: (e) No former official or public employee shall represent a person, with or without compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. 403(e). However, given our conclusion that you are not within the classification of the term "public employee" the restrictions that are applicable to an individual as a "former public employee" would be inapplicable to you following your termination of service with the Department of Environmental Resources. It should be noted that even if you were to be considered a "public employee" as set forth in the Ethics Act, the mere fact that you seek or have obtained employment with a coal company 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, you, as a former Clerk- Typist II should not be considered to have been a "public employee" or, upon termination of your employment with the Department of Environmental Resources, to have become a "former public employee" subject to any restrictions under Section 3(e) of the Ethics Act. Dorothy L. Colna January 31, 1984 Page 3 Conclusion: In your position as a Clerk- Typist II with the Department of Environmental Resources you were not to be considered a "public employee" as that term is defined in the State Ethics Act. Accordingly, upon termination of your employment with the Commonwealth, you would not be subject to any restrictions which would be applicable to persons within the classification of "former public employee" as set forth in Section 3(e) of the Ethics Act. Your activities in the year following your termination of employment with Departmental of Environmental Resources can be undertaken without restrictions 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. 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 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. SSC /rdp cc: Honorable Nicholas DeBenedictis Mr. Edward J. Miller Sincerely, L17 andra S. Christianson General Counsel