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HomeMy WebLinkAbout86-548 SincakMr. Michael D. Sincak Camhria County P.O. Box 384 Johnstown, PA 15907 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 April 30, 1986 ADVICE OF COUNSEL Re: County Mineral Coordinator, Public Employee Dear Mr. Sincak: 86 - 548 This responds to your letter of April 9, 1986, in which you requested advice from the State Ethics Commission. Issue: You ask whether in your capacity as a County Mineral Coordinator with the County Assessment Office, hereinafter the Office, you are to be considered a "public employee" as that term is defined in the Ethics Act, and therefore, whether you are required to file a Statement of Financial Interests pursuant to the Ethics Act. 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 State Ethics Act and the regulations of this Commission. In order to review the question presented, we will hriefly outline the duties and responsibilities associated with your position. You advise that you have no formal written job description, however, you have summarized your duties and responsibilities as follows: You are an employee of the Camhria County Mineral Assessment Office which is considered by the county personnel office to he a branch of the County Assessment Office. You are, therefore, answerable to the chief assessor regarding all mineral assessment matters. You also are responsible to the hoard of county commissioners who control, regulate, monitor and direct the chief assessor. You advise that in your position as mineral coordinator you supervise a staff of three co- workers. Mr. Michael D. Sincak April 30, 19R6 Page 2 Generally, your duties and res pons i bi l i It i es include the development of technical information on remaining coal reserves in Cambria County. This information is then applied to existing coal assessment programs which in turn, through the functioning of the assessment office, generates tax dollars. You advise that in some situations, modifications must he made to the existing coal assessment programs. In relation to this, you are responsihle for making recommendations to the county board of commissioners for such modifications. The final decision as to whether the recommendations are, in fact, implemented remains with the county hoard of commissioners. Generally, the office of the county assessor is responsihle for determining the value to he placed upon taxable subjects and for the implementation of all procedures in reference thereto. In this respect, your office is responsihle for the assessment of the coal reserves in Camhria County. Discussion: As set forth ahove, the question to he answered here is clear. Specifically, are you, in your capacity as a County Mineral Coordinator serving with the Office to be considered a "puhlic employee." The State Ethics Act defines that term as follows: Section 2. Definitions. "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 suhdivision thereof in teaching as distinguished from administrative duties. F5 P.S. 402. The regulations of the State Ethics Commission similarly define the term puhlic employee as ahove and also set forth that the term includes any individual: Mr. Michael D. Sincak April 30, 1986 Page 3 (R) 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: ( -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 the final technical recommendations; and ( -h -) whose recommendations or actions: ( -1 -) are an inherent and recurring part of his position; and ( -2 -) affect organizations other than his own organization. Mr. Michael D. Sincak April 30, 1986 Page 4 (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 puhlic employees. (A) Executive and special directors or assistants reporting directly to the agency head or governing hody. (R) Commonwealth bureau directors, division chiefs, or heads of equivalent organization elements and other governmental hody department heads. (C) Staff attorneys engaged in representing the department, agency, or other governmental bodies hefore the puhlic. (D) Solicitors, engineers, managers, and secretary- treasurers acting as managers, police chiefs, chief clerks, 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 helow are generally not considered puhlic employes. (A) City clerks, other clerical staff, road masters, secretaries, police officers, welfare case workers, maintenance workers, construction workers, detectives, equipment operators, and recreation di rectors. (R) Law clerks, court criers, court reporters, prohation officers, security guards, and writ servers. (C) School teachers and clerks of the schools. 51 Pa. Code 1.1. Mr. Michael D. Sincak April 30, 1986 Page 5 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 letter of April 9, 1986. Our inquiry necessarily focuses on the joh itself and not on the individual incumhent 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 McClure, 83 -001; Phillips, 82 -008, affirmed on appeal, 79 Pa. Cmwlth. 491, 470 A.2d 659 (1984); and Mummau v. Ranck, 531 Fed. Supp. 402 (F_.0. Pa. 1982). Also, in reviewing your question, the Commonwealth Court in its ruling in Phillips, supra, directs us to construe coverage of the Ethics Act hroadly, rather than narrowly, and conversely, directs that exclusions from the Ethics Act should he narrowly construed. Rased 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 are led to the conclusion that while you serve in this capacity, you are a "puhlic employee" suhject to the financial reporting and disclosure requirements of the State Ethics Act. Further detail on our analysis follows. It is clear that in your capacity as a County Mineral Coordinator, you have the ability to recommend official action with respect to subparagraph 4 and 5 within the definition of "public employee" as set forth in the Ethics Act, 65 P.S. 402. Specifically, you are responsihle for the assessemt of coal reserves and for the application of assessment programs. This, of course, has an effect of more than a de minimus nature on the interest of the individuals who are suhject to such assessments. Additionally, as noted in the regulations of the Commission, you are responsihle for or making recommendations to the cheif assessor as well as to the county hoard of commissioners. Clearly, within the regulations of the State Ethics Commission, you are to he considered a puhlic employee within the purview of the Act. 51 Pa. Code R (1); R(2). Under these circumstances and given your duties and responsibilities as outlined ahove, we must conclude that you are a "puhlic employee" as that term is defined in the State Ethics Act. Conclusion: Rased upon the above discussion, we conclude that you are to he considered a "puhlic employee" in your capacity as a County Mineral Coordinator with the Cambria County Office of Assessment. Accordingly, you must file a Statement of Financial Interests for each year in which you holrl the position outlined above and for the year following your termination of this service. If you have not already done so, a Statement of Finanical Interests must he 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. Michael D. Sincak April 30, 1986 Page 6 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 he 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 he scheduled and a formal Opinion from the Commission will he issued. Any such appeal must he made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Sinc ni 0 Genera ounsel