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HomeMy WebLinkAbout84-016 Keener-FarleyLawrence E. Keener - Farley, Esquire Attorney At Law 100 North 32nd Street Camp Hill, PA 17011 RE: Appeal, Advice No. 84 -572 Dear Mr. Keener - Farley: I. Issue: II. Factual Basis for Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 October 10, 1984 OPINION OF THE COMMISSION 84 -016 You present an appeal from Advice of Counsel No. 84 -572 (incorporated herein by reference) and pose the question of whether this Advice is correct in concluding that as a Legal Assistant II in the Bureau of Safety and Compliance at the Public Utility Commission (PUC) you are to be considered a "public employee" within the meaning of that term as set forth in the Ethics Act. Advice of Counsel No. 84 -572 concluded that you are a "public employee" as defined in the Ethics Act. The factual portion of that Advice will not be repeated here. We have, however, reviewed that Advice along with your job description and the information submitted to support your request including the Brief you filed with respect to opinion - request, No. 83 -147 which resulted in our issuance of Opinion No. 84 -005. We incorporate these items herein by reference as if fully set forth. III. Applicable Law: The law to be applied to this question is as follows: The' Ethics'ACt: Section 2'.' Definitibn's. "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: Lawrence E. Keener - Farley, Esquire October 10, 1984 Page 2 (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 minims 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. 65 P.S. 402. Regulation's of the State' Ethics Cbmmi "ssi'oh : Section' I1. ' Definitions: Public employee - -- (1) 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) contracting or procurement; (II) 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): Lawrence E. Keener - Farley, Esquire October 10, 1984 Page 3 (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 ( -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 the final technicalrecommendations; 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. Lawrence E. Keener - Farley, Esquire October 10, 1984 Page 4 (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. (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 employes. (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 1.1. Lawrence E. Keener - Farley, Esquire October 10, 1984 Page 5 IV. Discussion : There is ample support for the conclusion that you are a "public employee" as set forth in Advice of Counsel, 84 -572. We will, accordingly affirm the conclusion reached in said Advice and adopt as our own the reasoning expressed therein. There is no reason to expand upon, clarify or repeat the rationale expressed in the Discussion portion of that Advice. The Discussion in said Advice is, under our independent analysis, sufficient and correct. It provides the basis for our ruling and a copy of same is attached hereto, adopted and incorporated herein as if fully set forth. In accordance with same we reach the following conclusion and Order. V. Conc 1 usi on : The Advice of Counsel, No. 84 -572 is affirmed. We conclude, as did Counsel and based upon reasons expressed in said Advice, as adopted here, that as a Legal Assistant II with the Bureau of Safety and Compliance, within the PUC, you are a public employee as defined in the Ethics Act. As such, you are bound by those provisions of the Ethics Act which regulate the conduct of public employees. We understand that you have already filed a Statement of Financial Interests in compliance with the Ethics Pct. 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. Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. SSC /na Attachment This letter is a public record and will be made available as such. cc: Daniel Delaney, Esquire William Bauer, Director, Personnel, PUC Linda Taliafero, Chairman, PUC By the Commission , ERBER B. IN ER Chairman