The URL can be used to link to this page

Home My WebLink About82-557 AltersMr. Daniel L. Alters 200 Pine Street Williamsport, PA 17701 Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 June 28, 1982 ADVICE OF COUNSEL 82 -557 RE: Statement of Financial Interests - DER - Bureau of Water Quality Management - Regional Operations Manager Dear Mr. Alters: This responds to your letter of March 18, 1982 in which you requested an opinion from the State Ethics Commission which request represents an appeal from the Governor's Office ruling that you must file a Financial Interest Statement. Issue: As Operations Chief of Regional Water Quality Operations in the Bureau of Water Quality Management, are you required to file a Statement of Financial Interests, as a public employee, pursuant to Section 4 of the Ethics Act? Facts: You currently serve as Operations Chief of Regional Water Quality for the DER's Bureau of Water Quality Management. Among your official powers, you can file criminal proceedings as a means of enforcement. The proceedings include summary offenses, and second and third degree misdemeanors. In your Financial Disclosure Appeal Form, dated April 10, 1981, you pointed out that an Opinion of the Attorney General, No. 76 -15, indicated that officers and agents of DER are police officers within the definition) provided in the Pennsylvania Rules of Criminal Procedure, Rule 51 in particular. You reason that because, per the Attorney General's Opinion, you are a "police officer ", you are not required to file a Financial Interest Statement as a public employee. Your official job description which you executed on June 2, 1982 details the fact that you are responsible for: 1. Directing, through subordinate supervisers, the activities of more than one unit within the assigned geographical area engaged in the regulation of facilities to insure compliance with the Commonwealth's rules and regulations governing water quality management; 2. coordinating the activities of these units, to ensure that they are working towards the attainment of similar goals and objectives and resolving conflicts between the units; State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Daniel L. Alters June 28, 1982 Page 2 As noted in your job description you exercise considerable freedom in determining specific goals, objectives, and program priorities although your work is reviewed upon completion by a professional superior through reports and conferences to insure the attainment of program goals and objectives, completeness, and overall program quality. Discussion: The Ethics Act, 65 P.S. 401 et. seq. defines "public employee" as "any individual employed by the Commonwealth ... who is responsible for taking or recommending official action of a non - ministerial nature with regard to inspecting, licensing or regulating any person." 65 P.S. §402. Public employees under the Act must file a Statement of Financial Interests with the Commission for the preceding calendar year with the department, agency or bureau in which he is employed no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. 65 P.S. §404(a). 3. interpreting assignments, rules, regulations, policies and procedures; 4. meeting with facility's operators, municipal officials and the public to explain inspections, investigations, enforcement, plan review, and other activities; 5. preparing, reviewing, and f i l i n g citations and criminal complaints, testifying as a material and expert witness before Listrict Magi- strates, the Environmental Hearing Board, or other state courts and reviewing the documentation prepared for the enforcement of cases including determining the amount of penalties to be sought for clean water fund violations and reviewing and approving enforceme::t recom- mendations submitted by subordinates and writing, reviewing and approving violation letters; 6. reviewing requests for permits to use herbicides, ei gicides or pesticides in waters of the Commonwealth; determining streams to be analyzed, sample points, and sampling frequency :'or tee water quality network; reviewing and approving PPC plans; 7. reviewing proposed changes to Water Quality Management rules, regulations, policies, and procedures; and 8. planning and organizing work of the units in this section, assigning work, determining work flow, reviewing work performance, evaluating emnployee performance, preparing, reviewing, and assigning employee peformance evaluation reports, interviewing and /or recommending employee selection, reviewing and resolving employee grievances and complaints, approving leave requests, evaluating training needs of subordinates, and demonstrating more efficient work methods to subordinates. Mr. Daniel L. Alters June 28, 1982 Page 3 As a Regional Operations Chief in the DER Bureau of Water Quality Manage- ment, you report directly to the Regional Water Quality Management and you are clearly an employee of the Commonwealth. In carrying out your duties, you take or recommend official action of a non - ministerial nature. Indicative of this is your power to file criminal proceedings, as a means of enforcement, pursuant to Rule 51 of the Pennsylvania Rules of Criminal Procedure. It is true that the Attorney General has described the power of DER employees to initiate criminal proceedings under Rule 51 as similar to that exercised by a police officer. The analogy between the two positions, however, is limited to that power: "Thus, agents of the Department of Environmental Resources possess sufficient police powers to bring them within the scope of Rule 51 of the Rules of Criminal Procedure and, therefore, are required to institute summary criminal proceedings by citation." Opinion of Attorney General, June 7, 1976; 6 Pa. Bulletin 26. (emphasis supplied). The Attorney General did not say that DER agents were police officers for the purposes of every Commonwealth statute, such as the Ethics Act. It is also true that the regulations of the Ethics Commission state that police officers are not considered public employees as a general rule. 51 Pa. Code §4.10. However, an important clarifying provision in the regulation states that the example exclusion of §4.10 are for general guidance only and are not conclusive as to the exclusion or inclusion" of any group, in any event. 51 Pa. Code 4.10(e). Thus, even if DER agents - as a group - were labelled "police officers" which, incidentally, they are not, the label alone would not be determinative in deciding whether the group members are public employees for the purposes of the Ethics Act. This ruling depends on the specific duties and important responsibilities you are assigned. The Commission notes that it has applied the Act to other persons who would generally be considered "police officers ", such as state policeman, where the application fulfills the purpose of the Act and where the persons perform duties within the scope of the "public employee" definition. If the person is charged with the public trust, the public is entitled to be assured that the trust conferred upon "public employees" is not violated. See Peffley, 80 -655. In the facts here, there is little doubt, given your job duties that you have the ability and authority to snake recommendations relating to investigations and that you approve recommendations made by subordinates within the areas enunciated in the definition of "public employee." In addition, you make decisions relating to the penalties to be sought in Mr. Daniel L. Alters June 28, 1982 Page 4 particular case and you review and approve "violation letters." This authority, without more, supports the conclusion that you fall within the "public employee" definition. Finally, however, you exercise a significant degree of control over subordinate personnel with respect to hiring, assigning, promoting and evaluating these persons. This enhances our conclusion that you fall within the purview of the "public employee" definition. Conclusion: As a Regional Operations Chief, you have duties that involve more than mere enforcement or "police" action. You take and you recommend official action of a non- ministerial nature with regard to inspecting and regulating other persons. You are charged with a public trust. Thus, you are a "public employee" as defined by the Ethics Act, and you must comply with the requirements for filing Financial Interest Staements. Such a statement should have been filed by May 1, 1982. If you have not already filed the statement due by May 1, 1981, you must do so within 15 days of this Advice. Forms are enclosed for your use. Please foward one copy of this form to our office so that we may .monitor compliance with this Advice. 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 may he scheduled and a formal Opinion the Commission will be issued. You should make such a request or indicate your disapproval of this Advice within the next 30 days. 8F /rdp Enclosure cc: Sheryl Cohen Jay Dunn Dennis Farley Sincerely, S j & k S car 1)4 Sandra S. Christianson 46 General Counsel