HomeMy WebLinkAbout96-596 MatternDear Ms. Mattern:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
September 26, 1996
Diana Mattern
Department of Environmental Protection
Bureau of Land Recycling and Waste Management
Rachel Carson State Office Building
14th Floor
PO Box 8471
Harrisburg, PA 17105 -8471
96 -596
Re: Department of Environmental Protection, Bureau of Land Recycling and Waste
Management; Environmental Chemist 2; Public Employee; FIS.
This responds to your letter of appeal dated August 27, 1996 which will be
treated as a request for advice from the State Ethics Commission.
Issue: You ask whether in your capacity as an Environmental Chemist 2 with the
Department of Environmental Protection, Bureau of Land Recycling and Waste
Management, hereinafter DEP, 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. You state that your work does not involve any
activities specified within the definition of "public employee," you do not hold a
supervisory position and you do not perform on -site unsupervised field work. You
reference your duties as providing technical and program assistance and expertise to
regional and Central Office personnel.
In order to review the question presented, we must review 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.
The classification specification for an Environmental Chemist 2 provides:
Mattern, 96 -596
September 26, 1996
Page 2
An employee in this class performs a variety of duties in the Department
of Environmental Resources involving the regulation of industrial and
municipal facilities to ensure compliance with Federal and Commonwealth
rules and regulations governing the disposal, storage, treatment,
discharge, and transportation of hazardous waste, industrial waste, and
toxic materials. Work involves developing, amending, and interpreting
rules, regulations, policies, and procedures governing hazardous wastes,
industrial wastes, and toxic materials. Work involves providing technical
advice to Departmental and industry officials involving assessments of
the potential risks of toxic, hazardous, and industrial wastes. Work also
involves evaluating proposals for the disposal of industrial residue and
hazardous wastes with respect to chemical implications, evaluating the
risk potential of particular wastes based on chemical constituents and
their acute and chronic toxicities, bio- accumulation potential, and toxic
or hazardous impact on treatment systems. Work includes training field
personnel and county health personnel on proper sampling techniques
and testing procedures, conducting inspections of high risk treatment
plans, water systems, and streams for contamination; and developing
sampling methods and procedures for hazardous wastes monitoring
systems. Work also includes providing technical assistance to the Bureau
of Laboratories on the analysis of non - routine organic substances„ and
reviewing industry plans for proposed hazardous, toxic, or industrial
waste storage, treatment, or disposal facilities for compliance with
Federal and Commonwealth regulations. Work also includes providing
information to facility operators, municipal officials, and the public on
Departmental programs, functions, rules, regulations, policies, and
procedures; reviewing proposed legislation for possible impact on the
hazardous, toxic, or industrial waste programs and recommending
whether management should support or oppose the legislation; and
serving as an expert witness for the Department. Work is assigned in the
forms of goals, objectives, and priorities, and the employe exercises
considerable freedom in planning, scheduling, and completing
assignments. Work is reviewed upon completion by a professional
supervisor through reports and conferences for attainment of program
goals and objectives, completeness, and overall quality.
Discussion: The question to be answered is whether you, in your capacity as an
Environmental Chemist 2 with the Department of Environmental Protection, Bureau of
Land Recycling and Waste Management, 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;
Mattern, 96 -596
September 26, 1996
Page 3
65 P.S. §402.
(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.
(iv) Persons in the following positions are generally
considered public employes:
Mattern, 96 -596
September 26, 1996
Page 4
(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.
51 Pa. Code § 1 1.1.
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).
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
Mattern, 96 -596
September 26, 1996
Page 5
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 an Environmental Chemist 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. These
activities fall within the definition of public employee as contained in the regulations
of the Commission in Section 11.1, subparagraph (ii)(H) and (I). 51 Pa. Code § 1 1.1.
Under these circumstances and given your duties and responsibilities, 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 an
Environmental Chemist 2 with the Department of Environmental Protection, Bureau of
Land Recycling and Waste Management. 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
formal 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
pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the
Mattern, 96 -596
September 26, 1996
Page 6
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.
Sincerely,
f
Vincent ' . Dopko
Chief Counsel