HomeMy WebLinkAbout96-581 LaneDonald M. Lane
Bureau of Abandoned Mine Reclamation
Department of Environmental Protection
PO Box 149
Ebensburg, PA 15931
Re: Mining Engineer 2; Department of Environmental Protection; Bureau of
Abandoned Mine Reclamation; Public Employee; FIS.
Dear Mr. Lane:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
August 12, 1996
96 -581
This responds to your letter dated July 9, 1996 and Financial Interest Disclosure
Appeal, which will be treated as a request for advice from the State Ethics
Commission.
Issue: You ask whether in your capacity as a Mining Engineer 2 with the
Department of Environmental Protection (DEP), Bureau of Abandoned Mine
Reclamation (BAMR), you are to be considered a "public employee" as that term is
defined in the Public Official and Employee Ethics Law.
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 classification specifications for this position. Your
duties and responsibilities, as set forth in these two documents are incorporated herein
by reference. An employee in this position is responsible for:
the design or review of designs of complete mining engineering
projects. Work involves designing or reviewing the design for such
projects as a complete mine area restoration project. Work also involves
conducting engineering research to assist in completing . mine area
restoration projects. Employe works with considerable independence in
developing the technical details of the project but must adhere to project
priorities and scheduled deadlines. Work normally requires contact with
other public agencies, consultants, or contractors to obtain compliance
with Commonwealth standards and needs.
Lane, 96 -581
August 12, 1996
Page 2
Examples of Work: Develops and /or reviews plans and contract
specifications for extinguishment of underground mine fires and burning
refuse piles, demolition of hazardous mine equipment and facilities,
reclamation of coal refuse piles and abandoned strip mines, drainage
facilities for acid mine discharge, mine subsidence control, and sealing
abandoned mine portals. Prepare design cost estimate.
* * *
Ability to negotiate uneven and rough terrain. Ability to visually conduct
inspections which require the application of engineering principles and
construction techniques.
The generic classification specification for a Mining Engineer 2 provides in part:
This is professional mining engineering work. Employes in this
class are responsible for the design, or review of designs, of complete
mining engineering projects or for the conduct of a segment of an
engineering research project. Work involves designing or reviewing the
design for such projects as a complete mine area restoration project.
Work in engineering research will normally involve conducting research
tests and preparing the research project results. Employes work with
considerable independence in developing the technical details of the
project but must adhere to project priorities and scheduled deadlines.
Work normally requires contact with other public agencies, consultants,
or contractors to obtain compliance with Commonwealth standards and
needs. Supervision and technical guidance is received from a project
coordinator or supervisory engineer who assigns work in the project form
and reviews completed work for engineering soundness, meeting of
project goals, and cost effectiveness.
In support of your position, you make the following arguments: you have no
responsibility for contracting or procurement, administering or monitoring grants or
subsidies, zoning or planning, licensing, regulating, or auditing any person; a superior
assigns projects, supervises your activities, approves your correspondence and any
invoices; and field inspectors gather information but do not regulate.
Discussion: The question to be answered is whether you, in your capacity as
a Mining Engineer 2 with DEP, BAMR in the Ebensburg Field Office, 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;
Lane, 96 -581
August 12, 1996
Page 3
65 P.S. §402.
(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 minimis 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.
The regulations of the State Ethics Commission similarly define the term public
employee as above with the additional following criteria:
(ii) The following criteria will be used, in part, to determine
whether an individual is within the definition of "public employee ":
(A) The individual normally performs his responsibility in
the field without onsite supervision.
(B) The individual is the immediate supervisor of a person
who normally performs his responsibility in the field without onsite
supervision.
office.
(C) The individual is the supervisor of a highest level field
(D) The individual has the authority to make final decisions.
(E) The individual has the authority to forward or stop
recommendations from being sent to the person or body with the
authority to make final decisions.
(F) The individual prepares or supervises the preparation of
final recommendations.
(G) The individual makes final technical recommendations.
(H) The individual's recommendations or actions are an
inherent and recurring part of his position.
(I) The individual's recommendations or actions affect
organizations other than his own organization.
(iii) 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.
Lane, 96 -581
August 12, 1996
Page 4
51 Pa. Code § 1 1.1.
(iv) Persons in the `:following positions are generally
considered public employes:
(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.
(C) Staff attorneys engaged in representing the
department, agency or other governmental bodies.
(D) Engineers, managers and secretary- treasurers acting
as managers, police chiefs, chief clerks, chief purchasing agents,
grant and contract managers, administrative officers, housing and
building inspectors, investigators, auditors, 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 superintendents, assistant superintendents,
school business managers and principals.
(G) Persons who report directly to heads of executive,
legislative and independent agencies, boards and commissions
except clerical personnel.
(v) Persons in the following positions are generally not
considered public employes:
(A) City clerks, other clerical staff, road masters,
secretaries, police officers, maintenance workers, construction
workers, equipment operators and recreation directors.
(B) Law clerks, court criers, court reporters, probation
officers, security guards and writ servers.
(C) School teachers and clerks of the schools.
The question you present must be reviewed under these provisions of the
statute and the regulations of the Commission in Tight of your duties and obligations
as described in your job description and /or classification specifications, 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
Phillips v. State Ethics Commission, 79 Pa. Commw. 491, 470 A.2d 659 (1984); and
Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982).
Lane, 96 -581
August 12, 1996
Page 5
Also, in reviewing your question, the Commonwealth Court in its ruling in
Phillips, supra, at page 661, directs that coverage of the Ethics Act be construed
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 Tight of your job functions and the information available to us, the
necessary conclusion 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 Mining Engineer 2, you have the ability to
recommend official action with respect to subparagraphs 4 and 5 within the definition
of "public employee" as set forth in the Ethics Law, 65 P.S. §402. Specifically, you
perform inspection activities which action has a greater than a de minimis economic
impact. These activities fall within the definition of public employee as contained in
the regulations of the Commission in Section 11.1, subparagraph (iv)(D) which
specifically includes "engineers" within the definition of public employee. 51 Pa. Code
§ 1 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.
As to the arguments you raise, the fact that you do not perform certain of the
activities listed within the definition of public employee is unavailing since it is
sufficient if you meet at least one of the criteria, which you do. Likewise,,the fact that
you have a supervisor who reviews or approves your actions does not negate your
status as a public employee.
Conclusion: You are to be considered a "public employee" in your capacity as
a Mining Engineer 2 with the Department of Environmental Protection (DEP), Bureau
of Abandoned Mine Reclamation (BAMR). 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.
If you have not already done so, a Statement of Financial Interests must be filed
within 30 days of this Advice. This Statement of Financial Interests would report
information of the prior calendar year.
Pursuant to Section 7(11), 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 appeal the Advice to the full Commission.
a personal appearance before the Commission will be scheduled and a
forma/ Opinion will be issued by the Commission.
Any such appeal must be in writing and must be actually received
at the Commission within thirty (30) days of the date of this Advice
Lane, 96 -581
August 12, 1996
Page 6
pursuant to 51 Pa.Code §13.2(h). The appeal may be received at the
Commission by hand delivery, United States mail, delivery service, or
by FAX transmission (717- 787 - 0806). Failure to file such an appeal at
the Commission within thirty (30) days . may result in the dismissal of
the appeal.
Sincer y,
l eji°
Vincent J. Dopko
Chief Counsel