HomeMy WebLinkAbout87-591 BenderThis responds to your financial disclosure appeal of April 3U, 1987,
which has been processed as a request for advice.
Issue: You ask whether in your capacity as an Enforcement Officer III with
the Pennsylvania Liquor Control Board, hereinafter, the PLCB, 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: In order to review the question presented, your duties and
responsibilities will be reviewed. Copies of your job description have been
obtained which are incorporated herein by reference. As an employee in this
position, you perform supervisory investigative and /or auditing work in the
enforcement of the State Alcoholic Beverage Laws. An Enforcement Officer III
is responsible for assigning and supervising the work of subordinate
enforcement officers in the enforcement of the alcohol beverage laws within
the assigned district. Your duties include leading field investigations,
comprehensive audits and raids. Considerable initiative and independent
judgment are exercised by you in directing the activities of others.
Supervision over you is performed through conferences with the district
supervisor and a review of submitted reports.
Discussion: As set forth above, the question to be answered here is clear.
Specifically, are you, in your capacity as an Enforcement Officer III serving
with the PLCB to be considered a "public employee." The State Ethics Act
defines that term as follows:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: (717) 783 -1610
June 25, 1987
ADVICE OF COUNSEL
Mr. John B. Bender 87
Pennsylvania Liquor Control Board
1080 N. Delaware Ave.
Philadelphia, PA 19125
Re: Enforcement Officers III, Public Employee, PA Liquor Control Board
Dear Mr. Bender:
Mr. John B. Bender
June 25, 1987
Page 2
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
nonmi ni steri al 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.
The regulations of the State Ethics Commission similarly define the term
public employee as above and also set forth that the term includes any
individual:
(B) who meets the criteria of either subclause
(I) or (II):
(I) The individual i s:
( -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.
Mr. John B. Bender
June 25, 1987
Page 3
( -2 -) affect organizations
other than his own organization.
(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 public employees.
(A) Executive and special directors or
assistants reporting di rectly to the agency head or
governing body.
(B) Commonwealth bureau di rectors, divi sion
chiefs, or heads of equivalent organization
elements and other goverrmental body department
heads.
(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
4 supervises the preparation of
final recommendations; or
( -4 -) makes the final
technical recommendations; and
( -b-) whose recommendations or
actions:
( -1 -) are an inherent and
recurring part of his position;
and
Mr. John B. Bender
June 25, 1987
Page 4
(C) Staff attorneys engaged in representing
the department, agency, or other governmental
bodies before the public.
(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
judi ciary.
4
(F) School business managers and principals.
(iv) Persons in the positions listed below are
generally not considered public 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.
(B) Law clerks, court criers, court reporters,
probation officers, security guards, and writ
servers.
(C) School teachers and clerks of the schools.
51 Pa. Code 1.1.
The question you present must be reviewed under these provisions of the
statute and the regulations of the Commission in light of your duties and
obligations as described in your financial disclosure appeal, the
classification specifications, and the job description under which you
operate. The inquiry necessarily focuses on the job itself and not on the
individual incumbent 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, 79 Pa. Cmwlth.
491, 470 A.2d 659 (1984); and Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa.
1982).
Also, in reviewing your question, the Commonwealth Court in its ruling in
Phillips, supra, at page 661, directs that coverage of the Ethics Act should
be broadly construed, rather than narrowly, and conversely, directs that
exclusions from the Ethics Act should be narrowly construed. Based upon this
directive and reviewing the definition of "public employee" in the statute and
Mr. John B. Bender
June 25, 1987
Page 5
the regulations and opinions of this Commission, in light of your job
functions and the information available to us, it must be concluded that while
you serve in this capacity, you are a "public employee" subject 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 an Enforcement Officer III, you have
the ability to recommend official action with respect to subparagraph I within
the definition of "public employee" as set forth in the Ethics Act, 65 P.S.
402. Specifically, you are responsible for assigning and supervising the work
of subordinates and you are involved in leading field investigations,
comprehensive-audits and raids. Your work, in general, requires considerable
initiative and independent judgement exercised by you in directing the
activities of others. These activities fall within the definition of public
employee as contained ik the regulations of the Commission 51 Pa. Code 1.1.
Under these circumstances and given your duties and responsibilities as
outlined above, it must be concluded that you are a "public employee" as that .
tern is defined in the State Ethics Act. See Peffley, 80 -055 and Fedeanis,
84 -594.
Conclusion: Based upon the above discussion, you are to be considered a
"public employee" in your capacity as an Enforcement Officer III with the
PLCB.
Accordingly, you must file a Statement of Financial Interests for each
year in which you hold the position outlined above and for the year foliating
your termination of this service.
If you have not already done so, a Statement of Finanical Interests must
be 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.
Pursuant to Section 7(9) (i i ), 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.
Mr. John B. Bender
June 25, 1987
Page 6
This letter is a public record and will
Finally, if you disagree with this Advi
challenge same, you may request that the ful
personal appearance before the Commission wi
Opinion from the Commission will be issued.
writing, to the Commission within 15 days of
to 51 Pa. Code 2.12.
4
be made available as such.
ce or if you have any reason to
1 Cowl scion revi ew this Advi ce. A
11 be scheduled and a formal
Any such appeal must be made, in
service of this Advice pursuant
Si ncerely ,
l ' goev
Vincent J. Dopko
General Counsel