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HomeMy WebLinkAbout99-629 OlsenJeffrey Olsen 600 Schuylkill Street Schuylkill Haven, PA 17972 Dear Mr. Olsen: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL November 22, 1999 99 -629 Re: Public Employee; FIS; Environmental Protection Specialist; Pennsylvania Department of Military and Veterans Affairs. This responds to your Financial Interest Disclosure Appeal dated October 19, 1999, which will be treated as a request for advice from the State Ethics Commission. Issue: Whether an Environmental Protection Specialist with the Pennsylvania Department of Military and Veterans Affairs is a "public employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act ") and the Regulations of the State Ethics Commission, and particularly, the requirements for filing Statements of Financial Interests. Facts: On April 8, 1999, you were notified by the Bureau of Administrative Services for the Pennsylvania Department of Military and Veterans Affairs of your responsibility as a public employee to prepare and file a Statement of Financial Interests. Having reviewed the definition of "public employee" as set forth in the Ethics Act, you state your view that in your capacity as an Environmental Protection Specialist, you do not fall within that definition. You contend that your job description does not include responsibilities for: contracting or procuring any goods or services; inspecting any facility; licensing any facility; regulating or auditing any person or entity; administering or monitoring, grants or subsidies; or planning or zoning. In addition, you state that you do not operate in the field without on -site supervisory authority and that you do not supervise others. Finally, you opine that your job does not require you to make any decisions or recommendations where the official action will have an economic impact that is of a greater than de minimis nature on the interests of any person. Copies of your job description, job classification specifications, and organizational chart have been obtained from the Department of Military and Veterans Affairs, Bureau of Administrative Services, all of which documents are incorporated herein by reference. The job classification specification defines the position of an Environmental FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Olsen, 99 -629 November 22, 1999 Page 2 Protection Specialist as "professional work within a specialty area of the waste management program." In this class, an employee may perform a variety of assignments within one of the waste management specialty areas which include the following: superfund project officer; resource recovery and planning; toxic waste investigation and prosecution; or permit review and coordination. The position requires contact and effective working relationships with a wide variety of persons, including local government officials, legislators, the press and media, federal officials, planning commissions, special interest groups, and the public. Employees in this classification exercise judgement in planning, scheduling, and completing assignments within limits of broad program policies, guidelines, and applicable state and federal regulations. According to your job description, your specific duties and responsibilities include, but are not limited to, the following: ensuring that the requirements outlined in certain federal, state and local laws and regulations are met; overseeing the preparation and implementation of Spill Prevention Control and Countermeasure Plans for facilities and activities requiring such plans; developing a spill prevention program; preparing, implementing and maintaining written procedures on state -wide spill response; preparing and implementing management practices to avoid, reduce or eliminate air and water pollution through pollution prevention actions; planning and implementing water resources and drinking water management programs to include plans and planning for emergency and contingency plans for public water supplies, consumer confidence reports, storm water management plans, and spill prevention and contingency plans; planning and implementing an air quality management program to include plans and planning policies concerning radon, asbestos, and ozone depleting chemicals (ODC) management as well as any risk management plans required under EPCRA; monitoring ODC usage to ensure ODC are eliminated from use as substitutes that meet applicable standards become available; preparing and implementing a state- wide Asbestos Management Plan; ensuring the objectives of the Army Radon Reduction Program; implementing air and water quality management programs through the preparation of plans, regulations and other guidance documents; representing the Department of Military and Veterans Affairs and PAARNG in meetings and conferences with federal, state and local officials concerning current and proposed PAARNG activities; negotiating permit requirements; presenting contingency plans in the event of environmental accidents /liabilities; acting as a liaison between regulatory agencies and PAARNG projects coordinators by providing technical assistance and guidance; making recommendations on environmental issues, concerns, policies and procedures; serving as a member of the Department's Environmental Quality Control Committee; participating in discussions and providing recommendations on environmental issues, concerns, policies, and procedures; assisting in the training of PAARNG and Department personnel in environmental awareness and water and air quality management; interpreting and applying regulations to ensure that the Department and PAARNG activities are in compliance and assessing impact; and reviewing activities and policies of Guard armories and facilities for regulatory compliance with air and water quality regulations. You request that you be deemed exempt from filing a Statement of Financial Interests for calendar year 1998 and for any subsequent year in which your job duties fail to meet the definition of "public employee." Discussion: The Ethics Act defines the term "public employee" as follows: Section 1102. Definitions. "Public employee." Any individual employed by the Olsen, 99 -629 November 22, 1999 Page 3 65 Pa.C.S. §1102. 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 minimis nature on the interests of any person. The term shall not include individuals who are employed by this Commonwealth 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" and set forth the following additional criteria: (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of "public employe ": (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. (C) The individual is the supervisor of a highest level field office. . (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 finak 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 Olsen, 99 -629 November 22, 1999 Page 4 duties. (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. 51 Pa. Code § 1 1.1. Status as a "public employee" subject to the Ethics Act is determined by applying the above definition and criteria to the position held. The focus is necessarily upon the position itself, and not upon the individual incumbent in the position, the variable functions of the position, or the manner in which a particular individual occupying the position may carry out those functions. See Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Commw. Ct. 1984); and Mummau v. Renck, 531 Fed. Supp. 402 (E.D. Pa. 1982). Furthermore, the Commonwealth Court of Pennsylvania has directed that coverage under the Ethics Act be construed broadly and that exclusions under the Ethics Act be construed narrowly. See, Phillips, supra. Olsen, 99 -629 November 22, 1999 Page 5 Based upon the above judicial directives, the provisions of the Ethics Act, the State Ethics Commission Regulations, and the opinions of the State Ethics Commission, in light of your duties and responsibilities, the necessary conclusion is that you are a "public employee" subject to the financial reporting and disclosure requirements of the Ethics Act. It is clear that in your capacity as an Environmental Protection Specialist, you have the ability to take or recommend official action with respect to subparagraph (5) within the definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. §1102. Your activities would indeed have an economic impact of a greater than de minimis nature on the interests of "any person." While your job classification specifications are sufficient to support this conclusion, see, Phillips, supra, your specific job duties as set forth in your job description include planning and implementing various programs related to air quality management, asbestos management, ODC usage, public water supplies, storm water management plans, spill prevention and contingency plans. You serve on your Department's Environmental Quality Control Committee and make recommendations on environmental issues, concerns, policies and procedures. You review federal, state and local environmental regulations and interpret and apply such regulations to ensure that the Department of Military and Veterans Affairs and PAARNG activities are compliant. You further review the activities and policies of Guard armories and facilities for regulatory compliance with air and water quality regulations. The above activities would fall within subparagraph (5) of the statutory definition of "public employee," as well as the criteria for determining your status as a public employee under the Regulations of the State Ethics Commission, specifically at 51 Pa. Code §11.1, "public employee," subparagraph (ii). Therefore, you are a "public employee" subject to the Ethics Act and you are required to file Statements of Financial Interests pursuant to the Ethics Act. Conclusion: In your capacity as.an Environmental Protection Specialist with the Pennsylvania Department of Military and Veterans Affairs, you are a "public employee" subject to the Public Official and Employee Ethics Act and the Regulations of the State Ethics Commission. Accordingly, you must file a Statement of Financial Interests for each year in which you hold the aforesaid position and for the year following your termination of such service. If you have not already done so, a Statement of Financial Interests must be filed within 30 days of this Advice. Pursuant to Section 1107(11), an 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, provided 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. Olsen, 99 -629 November 22, 1999 Page 6 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 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, Vince J. Dop o Chief Counsel