HomeMy WebLinkAbout91-507 ConfidentialSTATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
January 28, 1991
Re: County Senior Planner; Public Employee; FIS
91 -507
This responds to your letter of December 18, 1990, in which
you requested confidential advice from the State Ethics
Commission.
Issue: You ask whether in your capacity as a Senior Planner with
County A, you are to be considered a "public employee" as that
term is defined in the Public Official and Employee Ethics Law,
and therefore, whether you are required to file a Statement of
Financial Interests.
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 Ethics Law and the regulations of this
Commission. In order to review the question presented, we will
briefly outline the duties and responsibilities associated with
your position as contained in your job description and the
organizational chart for this position. Your duties and
responsibilities, as set forth in these two documents are
incorporated herein by reference. An employee in this position:
Conducts highly responsible planning work at a supervisory level,
supervising both professional and support staff and conducting
administrative duties; advises, collects data for, and presents
drafted policy documents to the planning director and chief
planner for County A and conducts planning work to implement the
objectives and programs of County A; applies for and administers
governmental grant assistance programs; works with local
municipalities with respect to preparing plans and grant
applications; represents County A at meetings of the public and
the press with respect to policies and programs of County A;
works with other planning agencies including federal and state
agencies to coordinate planning; prepares and administers some
budgetary items; conducts field work, and performs numerous other
responsibilities as set forth in the incorporated job
description.
Page 2
Discussion: The question to be answered is whether you, in your
capacity as a Senior Planner for County A, are to be considered a
"public employee." The Ethics Law 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.
65 P.S. §402.
"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. S402.
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 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
Page 3
( -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 final technical
recommendations; and
( -b -)
actions:
whose recommendations or
( -1 -) are an inherent and
recurring part of his position; and
( -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
directly to the agency head or
governing body.
(B) Commonwealth bureau directors,
division chiefs, or heads of
equivalent organization elements
and other governmental body
department heads.
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 judiciary.
(F) School business managers and
principals.
(iv) Persons in the positions listed below
are generally not considered public
employees.
(A) City clerks, other clerical
staff, road masters, secretaries,
police officers, welfare case
workers, maintenance workers,
construction workers, detectives,
equipment operators, and recreation
directors.
(B) Law clerks, court criers,
court reporters, probation
officers, security guards, and writ
servers.
(C) School teachers and clerk of
the schools. 51 Pa. Code X1.1.
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 job
description and /or classification specifications, under which you
operate. Our 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.
Page 5
See Phillips v. State Ethics Commission, 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 us to
construe coverage of the Ethics Act broadly, rather than
narrowly, and conversely, directs that exclusions from the Ethics
Law should be narrowly construed. Based 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 must
conclude that you are a "public employee" subject to the
financial reporting and disclosure requirements of the State
Ethics Act.
It is clear that in your capacity as a Senior Planner, you
have the ability to recommend official action with respect to
subparagraphs 1, 2, 3 and 5 within the definition of "public
employee" as set forth in the Ethics Law, 65 P.S. §402.
Specifically, you are involved in contracting or procurement of
office equipment, you apply for and administer federal and state
grants, and your primary function includes professional planning
work at a highly responsible supervisory level. Your official
action has an economic impact of greater than a de minimus nature
on the interests of the residents of County A. These activities
fall within the definition of public employee as contained in the
regulations of the Commission in Section 1.1, subparagraph (i)(A)
and (B)(I) and (II). 51 Pa. Code 1.1. Under these circumstances
and given your duties and responsibilities as outlined above, you
are a "public employee" as that term is defined in the Ethics
Law.
Conclusion: You are to be considered a "public employee" in your
capacity as a Senior Planner with County A. Accordingly, you
must file a Statement of Financial Interests for each year in
which you hold the position outlined above and for the year
following your termination of this service.
As to your request for advice regarding filing past
Statements of Financial Interests, we cannot address that
question since it involves a failure on your part as to matters
which should have been done. It would appear to be prudent to
file as quickly as possible.
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.
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such
This letter is a public record and will be made available as
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 in writing
and must be received at the Commission within 15 days of the date
of this Advice pursuant to 51 Pa. Code 52.12.
cerely,
Vincent Dop o
Chief Counsel