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Home My WebLink About81-003 GudolonisI. Issue: C, V r ate, STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 January 27, 1981 OPINION OF THE COMMISSION Marianne C. Porter 81 -003 Clara M. Gudolonis Stanley M. Reynolds Microbiologist II Division of Laboratory Licensure & Training Bureau of Laboratories, Department of Health Pickering Way & Welsh Pool Road Lionville, PA 19353 RE: Microbiologist II, Applicability of Ethics Act Dear Ms. Porter, Ms. Gudolonis, and Mr. Reynolds: This responds to your letter of November 24, 1980, in which you requested that the full Commission review the Advice of Counsel, 80 -1A. This Advice is attached hereto in represen- tative form and is incorporated as a part of the record in this Appeal. Are persons classified as Microbiologist II, serving in the Bureau of Laboratories, Department of Health of the Common- wealth of Pennsylvania "public employees" required to file Financial Interest Statements (FIS) under the Ethics Act? II. Factual Basis for Determination: We have secured your official job descriptions and these are incorporated by reference into this Opinion. Essentially, these job descriptions indicate that among other duties, you are responsible for: 1. independently performing on -site surveys of clinical laboratories throughout the state for the purpose of licensing and /or certification under various laws; 2. presenting unknown specimens for analysis during this on -site survey process and evaluating the perfomance of the laboratory in relation to these "tests" as to completeness and technical accuracy; Porter, Gudo 'is, Reynolds January 27, 1 1 Page 2 3. evaluating laboratory personnel and preparing a list of deficiencies detected during the on -site surveys; 4. advising laboratory personnel as to compliance with state and federal laws and regulations and methods of improving technical performance. III. Applicable Law: The Ethics Act applies to all persons within the defini- tion of "public employee" which is repeated below: 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: (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 interest of any person. 65 P.S. 402. Commission regulations elaborate on this definition by specifying that a "public employee" includes: A person who normally performs his or her responsi- bility in the field with on -site supervision; or, - The immediate supervisor of such a person; or, • The supervisor of the highest level field office. - A person with the authority to make final decisions; - A person with the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions; or, - Who prepares or supervises the preparation of final recommendations; or, Who makes the final technical recommendations; and Whose recommendations or actions are an inherent and recurring part of his or her position and affect organizations other than his or her own. Porter, Gudo 'is, Reynolds January 27, 1,-31 Page 3 IV. Discussion: Our regulations indicate that "police chiefs" are generally considered "public employees" but that "police officers" are generally not within this definition. See 51 Pa. Code, Chapter 2. The question presented is simply stated: Are Micro- biologist II's "public employees" and therefore required to file Financial Interest Statements 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 regu- lations. It must be reviewed and answered in light of your duties and obligations as these duties are enunciated by your job descriptions or otherwise. We recognize that you argue that the regulations of the Commission state that "generally" persons designated as "police officers" are not "public employees" under the Ethics Act and therefore need not file financial statements. We recognize furthermore, that you assert that the work you do is similar to that of a policeman except that you do not have the power to take punitive action. We should first note, in response to this latter argument that the general exclusions contained in our regulations are just that -- general. exclusions. The regulations say that they are "general" categories and, of course, they cannot supercede the definition in the Act itself as to coverage. Second, the fact that you may perform duties similar to a police officer is not a sufficient basis for ruling you are police officers in any event and generally excluded from coverage. Finally, even where persons are more clearly desig- nated as "peace officers ", as with Liquor Control Board Enforcement Officers, this Commission has found that they may not be deemed "police officers" generally excluded from coverage in our regulations. See Peffleyy, 80 -055. Thus, your reliance on the assertion that your obis similar to that of a policeman is insufficient to warrant your exclusion from coverage under the Act. After reviewing these regulations in light of your argu- ment we must return to the Ethics Act, as the basic point of discussion. We must review the Act itself. Basically, the definition of "public employee" includes anyone who inspects, regulates, or audits. Clearly under these criteria, you are within the definition and should be required to file Financial Interest Statements. Your own job description states that you inspect for purpose of licensing. In addition, your inspec- tion is designed to reveal and report on the degree of compliance with federal and state laws and /or regulations. This activity surely falls within the scope of inspecting or regulating. This is particularly pertinent in light of the fact that your duties are performed on -site and without supervision. Our regulations specify that in such circumstances, the person Porter, Gudo pis, Reynolds January 27, 1,1 Page 4 performing those duties should be deemed a "public employee." Even though you do not have the final power to revoke a license, for example, your on -site inspection, analysis and report is vital to this process. We believe that, this activity is within the realm of what the Legislature meant when they directed that "public employees" who inspect and /or regulate should be included and covered by the Ethics Act. Finally, if any doubt exists as to inclusion or exclusion of a particular person or group, these should be resolved in favor of "promoting complete disclosure" as required by Section 1 of the Act. V. Conclusion: As Microbiologist II's, you are "public employees" within the meaning and coverage of the Ethics Act. You must file Financial Interest Statements as required by Section 4 of the Act. Because of your appeal you have not filed financial statements for the calendar year 1979. This should have been filed no later than May 1, 1980. Accordingly, this statement should be filed within 30 days of this Opinion. Forms are attached for your use. After completion, forward the original to our office to verify compliance with this Opinion, send the yellow copy to your personnnel office, and retain the green copy for your records. Your financial statement for the calendar year 1980 is due no later than May 1, 1981. Follow the instructions on the form as to the filing of this form. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commis- sion, 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 on the advice given. This letter is a public record and will be made available as such. Attachments PJS /rdp cc: Allen P. Brown William Kennedy