HomeMy WebLinkAbout01-573 WyrickR. LaRue Wyrick
128 Homewood Drive
York, PA 17403
Dear Mr. Wyrick:
ADVICE OF COUNSEL
July 3, 2001
01 -573
Re: Public Employee; FIS; Water Pollution Biologist II; Department of Environmental
Protection.
This responds to your Financial Interest Disclosure Appeal dated June 12, 2001,
which will be treated as a request for advice from the State Ethics Commission.
Issue: Whether a Water Pollution Biologist 2 with the Water Quality Protection
Bureau in the Department of Environmental Protection, is a "public employee" subject to
the Public Official and Employee Ethics Act (the "Ethics Act "), 65 Pa.C.S. §1101 et seq.,
and the Regulations of the State Ethics Commission, and particularly, the requirements
for filing Statements of Financial Interests.
Facts: You are currently employed as a Water Pollution Biologist 2 with the
Water Quality Protection Bureau in the Department of Environmental Protection
( "DEP "). You have submitted copies of two different versions of your job description
and organization chart, which documents are incorporated herein by reference. You
have also submitted copies of the following documents, which are all incorporated
herein by reference:
1) Page 2053 from the Pennsylvania Bulletin, Vol. 12 No. 27, which sets forth the
Commissions Regulations relating to public employees;
2) Interoffice Memorandum dated May 29, 2001 from Renata E. Mosely,
Manager of the Employe Relations and Safety Division, to you regarding your financial
disclosure appeal; and
3) Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Commw. 1984).
After quoting the Ethics Act's definition of "public employee" and portions of the
State Ethics Commission Regulations relating to criteria used to determine whether an
individual is a public employee, you contend that the duties found in your job
descriptions do not relate to contracting; administering or monitoring grants or
subsidies; planning or zoning; inspecting, licensing, regulating or auditing any person; or
any other activity where the official action has an economic impact of greater than a de
Wyrick, 01 -573
July 3, 2001
Page 2
minimis nature on the interests of any person. Based upon your job descriptions, you
argue that you should be "excused" from the Ethics Act's requirement of filing an FIS for
the 2000 calendar year.
Discussion: The Ethics Act defines the term "public employee" as follows:
$1102. Definitions.
"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 re and 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.
65 Pa.C.S. §1102.
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 final decisions.
(F) The individual prepares or supervises the
preparation of final recommendations.
(G) The individual makes final technical recommen-
dations.
Wyrick, 01 -573
July 3, 2001
Page 3
51 Pa. Code §11.1.
(H) The individual's recommendations or actions are
an inherent and recurring part of his position.
(1) 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 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.
Wyrick, 01 -573
July 3, 2001
Page 4
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. Ranck, 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.
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 a Water Pollution Biologist 2, you have the
ability to take or recommend official action with respect to subparagraphs (4) and (5)
within the definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S.
§1102. With regard to subparagraph (4), you have the authority to make
recommendations to permit engineers regarding the Bureau's Whole Effluent Toxicity
Testing ( "WETT ") monitoring requirements, limits and toxic impacts; and perform and /or
assist with conducting laboratory audit inspections at wastewater treatment facilities or
labs on a statewide basis. As to subparagraph (5), you have the authority to review
WETT data submitted by permittees; review and make recommendations regarding
compliance monitoring commitments using statistical applications to ensure data
integrity and test protocol validity; assist with investigations (civil or criminal) and write
reports that focus on problems revealed during lab audit inspection visits; and assist in
developing regulations, procedures and guidance on compliance monitoring
requirements specified in permits. These activities would also meet 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).
In that a determination of whether the duties and responsibilities of a position is
based upon an objective test, that is, a consideration of an individual's job as set forth in
his class specification and job description, rather than any duties that the individual may
be presently performing, the necessary conclusion is that 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 a Water Pollution Biologist 2 with the Water
Quality Protection Bureau in the Department of Environmental Protection ( "DEP "), 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 each year in which you hold the aforesaid position and 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.
Wyrick, 01 -573
July 3, 2001
Page 5
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.
Sincerely,
Vincent J. Dopko
Chief Counsel