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HomeMy WebLinkAbout98-007 MatternD. Mattern 15 Locust Circle Etters, PA 17319 Dear Ms. Mattern: OPINION OF THE COMMISSION Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Allan M. Kluger Julius Uehlein Louis W. Fryman John J. Bolger Frank M. Brown DATE DECIDED: 10/9/98 DATE MAILED: 10/20/98 98 -007 Re: Public Employee; FIS; Advice of Counsel; Failure to Appeal; Leave of Absence; Resignation. This Opinion is issued in response to your letter dated August 17, 1998. I. ISSUE: Whether a public employee's duty to file Statements of Financial Interests pursuant to the Public Official and Employee Ethics Law is to be revisited where the employee did not appeal from a prior Advice of Counsel determining such duty, and whether such duty is abrogated as to a year in which the public employee takes a leave of absence that commences in January and continues through resignation from public employment. II. FACTUAL BASIS FOR DETERMINATION: In your letter of August 17, 1998, you state that you are appealing the requirement to file financial disclosure forms under the Public Official and Employee Ethics Law ( "Ethics Law ") and the Governor's Code of Conduct. You have submitted what you characterize to be a copy of your job description. You previously worked as an Environmental Chemist 2 for the Department of Environmental Protection ( "DEP "), in the Bureau of Land Recycling and Waste Management. You claim that your work for DEP did not involve any of the activities specified in the definition of "public employee." You contend that you were not in a supervisory position, and that you did not perform on -site unsupervised field work. You state that final recommendations and decisions were made at higher management levels, or by DEP regions. You characterize your duties as providing technical and program assistance and expertise to regional and central office personnel. Additionally, you state that from January, 1997 until your resignation from Commonwealth employment in September, 1997, you were on a leave of absence and Mattern, 98 -007 October 20, 1998 Page 2 were not involved in making any decisions or recommendations as a Commonwealth employee. Based upon the above, it is your contention that in the aforesaid position with DEP, you were not a "public employee" and should not be required to file financial disclosure forms under the Ethics Law and the Governor's Code of Conduct. We take administrative notice of the fact that on September 26, 1996, the Chief Counsel of this Commission issued an Advice of Counsel to you, responding to a similar inquiry which you previously submitted. In Mattern, Advice of Counsel No. 96 -596, it was determined that in your capacity as an Environmental Chemist 2 with DEP's Bureau of Land Recycling and Waste Management, you would be considered a "public employee" and you would be required to file Statements of Financial Interests pursuant to the Ethics Law. The Advice included the following language in large, bold type: 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 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. Mattern, Advice of Counsel No. 96 -596 at 5B6. The records of the State Ethics Commission reflect that you did not appeal that Advice. As for this, your most recent inquiry, you were notified by letter dated September 22, 1998, of the date, time, and location of the public meeting at which your request for an advisory Opinion was to be considered. III. DISCUSSION: It is initially noted that this Commission does not have the jurisdiction to interpret or rule upon the requirements of the Governor's Code of Conduct. As for your status under the Ethics Law, an Advice of Counsel was previously issued to you, specifically determining that as an Environmental Chemist 2 for DEP's Bureau of Land Recycling and Waste Management, you would be considered a "public employee" and you would be subject to the filing requirements for Statements of Financial Interests pursuant to the Ethics Law. You were specifically advised of your right to appeal the Advice at that time. You did not appeal then, and you cannot do so now through the mechanism of another inquiry. We consider your status as a public employee and your related duty to file Statements of Financial Interests pursuant to the Ethics Law to have been finally determined by the Advice of Counsel. A final disposition as to status as a public employee and the duty to file Statements of Financial Interests is considered a definitive determination of the issue, and repeated challenges to the filing requirements will not be entertained absent justification such as a meaningful change in the position. See, Markel, Opinion No. 88 -007 at 8. Since the facts which you have submitted do not establish any such justification, we will not revisit those issues. Mattern, 98 -007 October 20, 1998 Page 3 We now turn to the one new issue which you have raised, which is whether your duty to file Statements of Financial Interests pursuant to the Ethics Law would be abrogated as to 1997, since you were on a leave of absence from January, 1997 until you resigned from Commonwealth employment in September, 1997. It would appear to be your argument that since you were not involved in making decisions or recommendations as a Commonwealth employee during that time, you should not be required to file the Statement of Financial Interests form relative to that period. The duty to file Statements of Financial Interests is set forth at Section 4 of the Ethics Law, which provides, in pertinent part: Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position." 65 P.S. §404(a) (Emphasis added). In considering any possible impact of your leave of absence and resignation, it is noted that the facts which you have submitted do not reveal whether your leave of absence commenced January 1, 1997 or at some later point in January. We shall address both possible scenarios. First, it is clear that if at any time during 1997, you were not on a leave of absence, you would be required to file the Statement of Financial Interests form relative to 1997. Section 4(a) contains no exceptions or exemptions based upon the brevity of public service, and this Commission does not have the authority to create exceptions or exemptions that do not exist by statute. See, Richardson, Opinion No. 93 -006; Long, Opinion No. 97 -010. Thus, if your leave of absence commenced at any time after January 1, 1997, you would be required to file a Statement of Financial Interests in 1998 disclosing the requisite financial information for calendar year 1997. Turning to the second possible scenario, if your leave of absence was in effect January 1, 1997 and continued without interruption through your resignation in September, 1997, we would nevertheless conclude that you would be required to file the Statement of Financial Interests form. While on leave, you continued to hold the status of a public employee. Since Section 4(a) contains no exceptions or exemptions based upon leaves of absence, a straightforward application of the law mandates the conclusion that your leave of absence would not abrogate your duty to file. Moreover, it was the legislative intent that the Ethics Law be "liberally construed to promote complete financial disclosure." 65 P.S. §401(a). To carve out an exception that has no basis in the statute would not only exceed our authority, but would also "fly in the face" of the legislative intent. The public's interest in financial disclosure by public officials /public employees is paramount to any private interest in avoiding the filing requirements. See, Crisci, Opinion No. 89 -013. We would further note that the Commonwealth Court of Pennsylvania has directed that coverage under the Ethics Law is to be construed broadly, and that exclusions under the Ethics Law are to be construed narrowly. See, Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Commw. Ct. 1984). Thus, even where we are reviewing the status of an individual to determine whether he is a public official /public employee subject to the filing requirements for Statements of Financial Interests - which, as noted above, is not at issue in this case - we apply an objective test, which has been approved by Commonwealth Court. Id. Specifically, we focus upon the individual's job description and /or job classification specifications, rather than any claims as to what his actual performance of duties involves. Id.; See, also, e.q., Abrams, Opinion No. 95 -011 at 9 -10. Protestations that the individual does not actually perform the duties that he has the authority to perform according to his job description or job classification specifications are to no avail. We see Mattern, 98 -007 October 20, 1998 Page 4 no reason to afford any greater consideration to your protestations that you were not actually performing the duties of your position while on a leave of absence. We hold that your duty to file Statements of Financial Interests pursuant to the Ethics Law would not be abrogated by your leave of absence from January, 1997 through your resignation from Commonwealth employment in September, 1997. If you have not already done so, a Statement of Financial Interests for calendar year 1997 must be filed with DEP within 30 days of the mailing date of this Opinion. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. IV. CONCLUSION: Where a prior Advice of Counsel has determined that the requestor, as an Environmental Chemist 2 for the Department of Environmental Protection ( "DEP "), Bureau of Land Recycling and Waste Management, would be considered a "public employee" subject to the Public Official and Employee Ethics Law ( "Ethics Law ") and specifically the requirements to file Statements of Financial Interests, and where such Advice was not appealed and the requestor has proffered no justification for revisiting such issues, the determinations of the Advice of Counsel are considered final and will not be revisited by this Commission. A public employee's duty to file Statements of Financial Interests would not be abrogated by the taking of a leave of absence, even if such leave of absence would be in effect continuously from January 1 of the year in question through resignation from public employment. If not already filed, a Statement of Financial Interests for calendar year 1997 must be filed by the requestor with DEP within 30 days of the mailing date of this Opinion. Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §21.29(b). By the Commission, Daneen E. Reese Chair