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Home My WebLink About83-001 McClureI. Issue: Gregory B. McClure 5872 Laurel Street -Harrisburg PA 17112 Dear Mr. McClure: STATE ETHICS COMMISSION • 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 February 28, 1983 a OPINION OF THE COMMISSION 83 -001 RE: Microbiologist III, Applicability of Ethics Act, Financial Interest Statement You ask whether the Ethics Act applies to you as a Microbiologist III and requires you to file a Financial Interest Statement as a "public employee." II. Factual Basis For Determination: You currently serve as and are classified as a Microbiologist III serving within the Department of Environmental Resources (DER), Bureau of Laboratories (Inorganic Chemistry and Biological Services). Previous to this Commission's review of your question an Advice of Counsel, No. 82 -559, had been issued in this case on June 29, 1982 and that Advice is incorporated herein by reference. That Advice concluded that you were a "public employee" within the meaning of the Ethics Act. That advice relied primarily upon a description of your duties as a Microbiologist III detailed in your official job description which is incorporated herein by reference which you signed on June 3, 1982. In addition, we refer to, rely upon and incorporate herein by reference the classification specifications relative to the position of a Microbiologist III. These classification specifications indicate that the work of a Microbiologist III entails directing a phase of a microbiological laboratory •_.program and involves for assisting the development of standards and procedures to be used in lahoratories as well as training laboratory, departmental and outside personnel in this field. This work is performed in accordance with scientific principles and modern procedures and considerable independent judgment is exercised or required to he exercised in the preparation of reports and the interpretation of test results. Persons within Gregory B. McClure February 28, 1983 Page 2 this classification supervise a small professional and sub - professional staff. Work involves the following: The culture and examination of clinical and other specimens for identification of organisms; conducting research on laboratory techniques, testing methods and procedures; the most difficult or advanced examinations and tests in specialized phases of microbiology and all other specialized phases of the work in the field of microbiology. Your specific job description details your duties which include: 1. Logging and analyzing approximately 60,000 samples a year as well as interpreting and reporting the results of such analysis and sending reports to the field personnel. These reports do not contain recommendations, but are purely the result of your scientific analysis of samples.. 2. Serving as an expert witness in civil or criminal cases on behalf of the Commonwealth. 3. Serving as the primary consultant for Microbiology in the Department and providing technical advice on such matters at all times. 4. Directing the microbiology program for the Bureau of Laboratories and supervising those programs in both Harrisburg and Erie. 5. Maintaining a Quality Control Program and investigating problems that occur in the laboratory or in the field. 6. Developing standards and procedures for the microbiology program and training the laboratory, departmental, and field personnel as well as reviewing the performance of such personnel. 7. Develops new methodology for special problems. This job description indicates that you report directly to the division chief within the Bureau of Laboratories and that you are responsible for a small professional staff, including Microbiologists II and Laboratory Technicians II. You have no responsibility for certification of laboratories at present or inspection, on -site or otherise, of labs. III. Applicable Law: The law to be applied to this question is as follows: "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: Gregory B. McClure February 28, 1983 Page 3 (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 there2f in teaching as distinguished from administrative duties._ 65 P.S. 402. Public employee - -- (i) The term includes any individual: (A) who is employed by the Commonwealth or a political subdivision and who is responsible for taking or recommending official action of a nonministerial nature with regard to: (I I) contracting or procurement; I) administering or monitoring grants or subsidies; (III) planning or zoning; (IV) inspecting, licensing, regulating, or auditing any person; or (V) any other activity where the official action has greater than a de minimis economic impact; and (B) who meets the criteria of either subclause (I) or (II) of this clause: (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 Gregory B. McClure February 28, 1983 Page 4 ( -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; i ( -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 the final technical recommendations; and ( -b -) whose recommendations or actions: ( -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. (C) Staff attorneys engaged in representing the department, agency, or other governmental bodies before the public. (0) Solicitors, engineers, managers, 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. Gregory B. McClure February 28, 1983 Page 5 (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 clerks of the schools. 51 Pa. Code 0.1 IV. Discussion: The question presented is simply stated: Is a Microbiologist III a "public employee" as defined in the Ethics Act and therefore required to file a Financial Interest Statement under the Ethics Act. This question must be reviewed and answered in relation to the Ethics Act, its purpose and, of course, the Commission's regulations on this point. This question must be reviewed and answered in light of your own duties and obligations as those duties are ennunciated in the classification specifications applicable to the position of a Microbiologist III and your own individual job description which is derived therefrom. This inquiry must focus on the job itself and not necessarily on the individual incumbent in the position or the variable functions or the manner in which a particular individual occupying a position may carry out those functions. See Phillips 82 -008 as well as Mummau v. Rank, 531 F. Supp. 402 (E.D. Pa. 1982). Reviewing your job function and particular position objectively under this analysis leads us to the conclusion that the Advice of Counsel originally issued in this matter was not correct. We conclude you are not a "public employee" or subject to the filing requirements of the Ethics Act. Although, we have previously held that Microbiologists II are "public employees" within the meaning and coverage of the Ethics Act (Porter, 81 -003) this ruling is not necessarily determinative as to the question you present. In particular, our ruling in Porter dealt with Microbiologists serving within the Department of Health while you serve in the DER. The persons at issue in Porter had a role in inspecting and evaluating lahoratories and personnel for the purpose of licensing. You have no such role. Gregory B. McClure February 28, 1983 Page 6 Given these differences and based upon a review of the duties you do perform, we conclude you do not take or recommend official action of a non - ministerial nature with respect to any of the categories contained in the definition of "public employee" under the Ethics Act or our regulations. V. Conclusion: As 4 Microbiologist III serving in the Bureau of Laboratories, DER, and given your job duties as currently in force you are not a "public employee" within the meaning and coverage of the Ethics Act. You are not required to file a Financial Interest Statement as required by Section 4 of the Ethics Act. Accordingly, Advice of Counsel No. 82 -559 is set aside and this Opinion adopted and entered. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the advice given. This letter is a public record and will be made available as such. Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconside- ration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. SSC /rdp Attachments cc: Sheryl Cohen Jay Dunn Dennis Farley By the Commission, rnJ 4' PAUL J. SMITH Chairman SCc..i°c'4 -ij v ?V \; ten t,:c 2, be1- L V 1 D V. ) k n'' L`'— `4h1 14 k. I S