HomeMy WebLinkAbout85-015 SmithMr. G. L. Smith
Four Parkway Center
875 Greentree Road
Pittsburgh, PA 15220
I. Issue:
II. Factual Basis for Determination:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
July 26, 1985
OPINION OF THE COMMISSION
85 - 015
Re: Advice of Counsel Appeal, Public Employee, Real Estate Specialist II,
Pennsylvania Department of Transportation, Time of Appeal
Dear Mr. Smith:
This responds to your letter of June 25, 1985, wherein you request the
full Commission to review an Advice of Counsel issued on September 13, 1984.
Whether a Real Estate Specialist II employed by the Pennsylvania
Department of Transportation is to be considered a public employee within the
purview of the State Ethics Act and thereby required to file a Statement of
Financial Interests.
On or about April 30, 1985, you filed a financial disclosure appeal form
which in part, asserted that as a Real Estate Specialist II, you did not
believe that you were required to file a Statement of Financial Interests.
You asserted that in your opinion you are not a public employee as that term
was defined in the State Ethics Act. Your appeal to the Pennsylvania
Department of Transportation was denied. As a result, on or about June 3,
1985, you appealed that decision to the Pennsylvania State Ethics Commission.
A review of the relevant Commission files in this matter reveals that on
May 18, 1984, approximately one year before, you had filed a similar financial
disclosure appeal form. As a result, the State Ethics Commission reviewed
your position in light of your job description and your classification
specification. As a result of that review, an Advice of Counsel was issued to
you dated September 13, 1984. That advice, No. 84 -607 concluded that you are
a public employee within the parameters of the State Ethics Act and,
therefore, required to file a Statement of Financial Interests.
Mr. G. L. Smith
July 26, 1985
Page 2
In relation to your current appeal, you have not presented any
information indicating that your position has changed since the date of the
issuance of the previously mentioned advice or that you do not perform the
functions as outlined in your job description and position classification.
Finally, we note that on June 28, 1985, you filed a Statement of Financial
Interests with the Skate Ethics Commission for the year 1984. Pursuant to
your letter of June 25, 1985, you now seek to appeal the Advice of Counsel
that was issued on September 13, 1984.
III. Discussion:
Pursuant to the State Ethics Act, 65 P.S. §407(9)(i),(ii), the State
Ethics Commission may upon the request of any person issue an opinion or
a(;vi ce informing that person as to their duties and obligations under the
Ethics Act° Pursuant to the regulations of the State Ethics Commission upon
the receipt of such a request, the Executive Director and the General Counsel
will determine which request will be referred to the General Counsel for the
preparation of an advice and which request will be submitted directly to the
Commission for an opinion. 51 Pa. Code §2.11. Based upon this provision of
law, an Advice of Counsel was issued to you on September 13, 1984. That
Advice of Counsel concluded that you are a public employee within the
provisions of the State Ethics Act and thereby required to file a Statement of
Financial Interests. As a result of that advice, you, in fact, filed a
Statement of Financial Interests on September 24, 1984, for the year 1983.
With regard to an appeal from an Advice of Counsel, the Ethics Act
provides as follows:
§2.12 Appeal from an advice.
(a) Any person who requested an opinion or advice
who is dissatisfied with an advice given may appeal to the
full Commission for review. 51 Pa. Code 2.12(a).
(b) Any such appeal shall be made, in writing, to
the Commission within 15 days of service of the Advice.
51 Pa. Code. 2.12(b).
As can be clearly seen, such advice must be appealed within 15 days after
the service thereof. In the instant matter your June 25, 1985 appeal of the
Advice of Counsel that had been issued on September 13, 1984, is more than
nine months after the issuance of that advice In addition to the foregoing,
you have not indicated or asserted in either your appeal before the Department
of Transportation or in your appeal papers to this Commission that there has
Mr. G. L. Smith
July 26, 1985
Page 3
been any change in your status or that your particular position differs in any
material way from those operating in similar positions. See Murphy, No 309,
(holding Real Estate Specialist II was a public employee required to file a
Statement of Financial Interest). As a result, the Commission has determined
that it must deny your appeal of the previously issued Advice of Counsel.
This denial, of course, is without prejudice to your right to submit at an
appropriate time prior to the next filing period a request for an advice or
opinion that specifically sets forth the reasons and arguments in support of
your position and the factors in relation thereto.
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.
JJC /sfb
By the Com ission,
HER RT B. CONNER
Chairman