HomeMy WebLinkAbout83-578 McHaleMr. James D. McHale
R.D. #1
Box 115, Eriez
Jamestown, PA 16134
Dear Mr. McHale:
Mailing Address:
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
July 27, 1983
ADVICE OF COUNSEL
Re: Section 3; Revenue Investigator Trainee
83 -578
This reponds to your letter of June 24, 1983, in which you requested
advice from the State Ethics Commission.
Issue: You would like to know what, if any, restrictions the Ethics Act
places upon you as a former Revenue Investigator Trainee in your quest for a
new job.
Facts: You were recently furloughed and then discharged from the Pennsylvania
Department of Revenue, Bureau of Cigarette and Malt Beverage Taxation.
Although you had originally begun employment in 1971 as a Field Investigator,
and in February, 1982, furlough classification reduction caused your title and
duties to be changed to those of a Revenue Investigator Trainee. You were
subsequently discharged by the Department in March, 1983, and are currently
seeking new employment.
Your job description'as a Revenue Investigator Trainee indicates that
your duties consisted of verifying payroll records, tax withholdings, and
collecting tax delinquincies. You also assisted taxpayers with various tax
procedures and all your duties were conducted under supervision.
You are currently searching for a job and are concerned that a conflict
of interest may arise with regard to a prospective job after and your past
employment. You have, therefore, sought advice from the State Ethics
Commission regarding what, if any, restrictions may be placed upon you as a
former Revenue Investigator Trainee.
Discussion: Initially, the Ethics Commission notes that, as a statutory
entity, its jurisdiction and its power are strictly limited to the authority
granted it in 65 P.S. Section 401 et. seq. Thus, it has no authority to
interpret, and /or enforce the provision of other codes, and this advice should
not be construed as clearance to act under other Commonwealth laws. Nor are
we empowered, as you request, to conduct a "thorough investigation and
clarification" with respect to the "entire matter" of your reclassification,
furlough or discharge.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. James D. McHale
July 27, 1983
Page 2
In deciding whether the Ethics Act would apply to you as a former public
employee, the threshold question is to determine whether, as a Revenue
Investigator Trainee, you were considered a public employee within the
definition of the Act.
The applicable provision of the Ethics Act are contained in 65 P.S. 402,
which reads:
"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.
With regard to your job description as a Revenue Investigator Trainee,
the Commission finds that you were not involved -in any of the activities
described above, and you therefore did not meet the definition of "public
employee" as defined by the Ethics Act. In this light, because you were not
subject to the provisions of the Ethics Act while employed as a Revenue
Investigator Trainee, you do not fall within the definition of a "former
public employee" and so are not subject to any of the representation
restrictions placed upon former public employees by the Ethics Act. See 65
P.S. Section 403(e).
Conclusion: Your job description indicates that you did not fall within the
Ethics Act definition of "public employee" which you were employed as a
Revenue Investigator Trainee. You therefore cannot be considered a "former
public employee" within the Act's definition of that term, and so you are not
subject to the representation restrictions placed upon former public employees
by the Ethics Act.
Mr. James D. McHale
July 27, 1983
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.
KW /na
cc: James Scheiner, Secretary
Sincerely,
Sandra S. Christianson
General Counsel