HomeMy WebLinkAbout82-573 KoberWayne W. Kober
RD #2
Brittany Lane
Dillsburg, PA 17019
RE: Coverage by the State Ethics Act
Dear Mr. Kober:
Mailin Address:
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
September 17, 1982
ADVICE OF COUNSEL
82 -573
This responds to your communication of August 2, 1982, in which you
requested advice from the State Ethics Commission.
Issue: You question whether or not the State Ethics Act is applicable to you
in your position as an Environmental Policy Analyst.
Facts: Until August 11, 1982, you served as an Environmental Policy Analyst
(Environmental Planning Supervisor II) in the Environmental Quality Division
of the Bureau of Highway Services for the Pennsylvania Department of Transpor-
tation (hereinafter, the Department). As of August 12, 1982, you began work as
a manager of environmental projects with the firm of Yule, Jordan & Associates
in Camp Hill, Pennsylvania.
You also provided us with your job description which was in effect during
your service with the Commonwealth. This description indicates that you
performed management level work to assist the division chief in the admini-
stration of the Department's environmental programs. In this capacity you
were required to be familiar with current environmental legislation, regula-
tions and scientific publications and you assisted in a technical capacity in
the development of departmental policy procedural and informational documents.
You also helped to organize and conduct field views although you did not make
any recommendations as to official action following these meetings. You also
participated in special purpose committees and panels designed to enhance
Departmental communications with the Federal Highway Administration, consul-
tant and outside agency staff and in -house and consultant engineering and
environmental groups. This participation was designed primarily to provide
reports on these matters to appropriate Departmental management staff. You
were also involved in developing training courses and materials for Department
engineering and environmental staff. Finally, you supervised the environ-
mental impact analyst in the Environmental Quality Division.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Wayne W. Kober
September 17, 1982
Page 2
Discussion: The Ethics Act is applicable to "public employees" and "public
officials" as defined in the Ethics Act. The pertinent definition in your
case is that which relates to "public employee" which states 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
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.
In this case, given the job description which you have provided, it does
not appear that you are within the category of "public employee" as set forth
in the above definition. Specifically, you do not appear to take or recommend
official action of a non - ministerial nature with relation to any of the five
areas outlined above. While you are responsible for supervision of certain
personnel this does not per se indicate that you fall within the definition of
"public employee." In addition, we note that the Department has reviewed your
status and has indicated that you are not currently required to file a
Financial Disclosure Statement under the Ethics Act in that your duties and
responsibilities do not meet the definition of "public employee" as outlined
in the Act. We do not find sufficient reason to reverse the determination of
the Department nor does our independent review of your job description
indicate that you should be required to file a Financial Interest Statement.
Therefore, those portions of the Ethics Act which restrict the activities of
"public employees" or "former public employees" would not be applicable to
y
o u.
Conclusion: As an Environmental Planning Supervisor II you are not to be
considered a "public employee" or a "former public employee" within the
purview of the Ethics Act.
Wayne W. Kober
September 17, 1982
Page 3
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: Thomas D. Larson,
Secretary
Department of Transportation
Sincerely,
Sandra S. Chrstianson
General Couns'el