Loading...
HomeMy WebLinkAbout92-611Dear Mr. Lane: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 2, 1992 Mr. Donald M. Lane 92 -611 Pennsylvania Fish Commission Bureau Fisheries 450 Rokiinson Lane Bell0fonte, PA 16823 -9616 Re: Chief of Surveys, Surveyor I, Pennsylvania Fish Commission; Public Employee; FIS. This responds to your Financial Interest disclosure appeal dated June 1, 1992, which will be treated as a request for advice from the State Ethics Commission. Issue: You ask whether in your capacity as a Chief of Surveys (Surveyor I) with the Pennsylvania Fish Commission, you are to be considered a "public employee" as that term is defined in the Public Official and Employee Ethics Law. Facts: You question whether your activities and functions fall within the purview of the definition of "public employee" as that phrase is defined in the Ethics Law and the regulations of this Commission. You note that you filed an appeal with the Pennsylvania Fish Commission on May 1, 1992, which appeal was denied by letter of May 22, 1992. Thus, you are filing your appeal with this Commission. You rebut the denial of your appeal by the Pennsylvania Fish Commission on the following three items. First, you state that surveying, per se, is not listed under "public employee" of Section 6.b [sic]. The survey section of the Pennsylvania Fish Commission consists of two persons, including you and a "surveyor technician supervisor." Only those surveys as surveyed by the above personnel are certified Second, you state that the field work is not conducted as any part of the five items listed under the definition of "public employee." Third, you state that you have had no negotiations with any Mr. DQflald M. Lane July 2, 1992 Page 2 individual or business involved in property acquisitions with the Pennsylvania Fish Commission. All negotiations are handled by other persons and the survey section merely delineates the boundaries of the previously agreed acquisition. In order to review the question presented, it is necessary to outline the duties and responsibilities associated with your position as contained in your job description. Your job description has been obtained from the Pennsylvania Fish Commission, and is incorporated herein by reference. The overall function of your position entails supervision and conduct of essentially all of the Fish Commission's land and engineering surveying activities throughout the Commonwealth, by a registered surveyor. Your position function includes knowledge of, and work performed on, all of the Fish Commission's 240 -odd installations as well as the surveying required for new acquisitions and developments. Your duties and responsibilities include engineering surveying, including the development of various design data; the plotting of culture and topography; the development of profiles and cross - sections for the study and selection of sites for engineering construction; the layout of structures; quantity and measurement determinations; "as built" surveys; and utility surveys. These surveys are done for all development projects at the Commission's fish hatcheries, dams and lakes, access areas, and roads. You perform land surveying which includes the determination of the location of land boundaries and land boundary corners; the preparation of maps showing the plan figures formed by the boundaries and the determination of the areas of land contained t herein; the division of land into smaller tracts, including the layout of roads and streets, and rights -of -way for the same to give required access; the preparation of plats or maps of land subdivisions and the preparation and interpretation of land descriptions for incorporation in various documents such as deeds and leases. Your work includes resurveying and continuously remarking the Fish Commission's property boundaries. You perform all of your duties and responsibilities with the aid of one assistant. The Division Chief assigns work to you. Your work is reviewed by the requesting branch and occasionally by the Division Chief. 14 to your job description, your work is carried out independently and requires very little supervision. It is noted that your job description lists_ your present class title as a Surveyor Supervisor-Technician. Discussion: The question to be answered is whether, in your capacity as the Chief of Surveys (Surveyor I) classified as a Surveyor Supervisor Technician for the Pennsylvania Fish Commission, you are to be considered a "public employee.." The Mr'. Donald M. Lane July 2, 1992 Page 3 Ethics Law defines that term as follows: Section 2. Definitions (5 ) 65 P.S. 5402. "Public employee." Any the Commonwealth .. or a .who is responsible for official action of a with regard to: x:14"•,. individual employed by political subdivision taking or recommending nonministerial nature (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person. "Public employee" shall not include individ- uals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. The regulations of the State Ethics Commission similarly define the term public employee as above and also set forth that the term includes any individual: (B) Who meets the criteria of either subclause (I) or (II): (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: r_ Mr. Dohald M. Lane July 2, 1992 Page 4 (a) who: (1) has the authority to mak 4 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 recommen- dations; or (4) makes final technical recommen- dations; 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. (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 br 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 Mr. Donald M. Lane July 2, 1992 Page 5 51 Pa. Code $1.1. (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 gcivernmental 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 employees. (A) City clerks, other clerica - 1 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. The question you present must be reviewed under these provisions of the statute and the regulations of the Commission in light of your duties and obligations as described in your job description under which you operate. The inquiry necessarily focuses on the job itself and not on the individual incumbent in the position, the variable functions of the position, or the manner in which a particular individual occupying a position may carry out those functions. See Phillips v. State Ethics Commission, 79 Pa. Cmwlth. 491, 470 A.2d 659 (1984) y and Mummau v. Renck, 531 Fed. Supp. 402 (E.D. Pa. 1982). Also, in reviewing your question, the Commonwealth Court in its ruling in Phf]zl ps supra, at page .661, diredts that coverage MX. Donald M. Lane July 2, 1992 Page 6 of the Ethics Act be construed broadly, rather than narrowly, and conversely, directs that exclusions-from the Ethics Law should be narrowly construed. Based upon this directive and reviewing the . definition of "public= employee" in the statute and the regulation% and opinions of this Commission in light of your job functions ands, the information available to us, the necessary conclusion is that you are a "public employee" subject to the financial reporting and, disclosure requirements of the Ethics Law. It is clear that in your capacity as the Chief of Surveys (Surveyor I) classified as a Surveyor Supervisor Technician, you. have the ability to recommend official action with respect to subparagraph (5) within the definition of "public employee" as set forth in the Ethics Law, 65 P.S. S402 . Specifically, you supervise and conduct the Fish Commission's land and engineering surveying activities throughout the Commonwealth. Your engineering surveying, includes developing design data, plotting culture and topography, and developing profiles and cross - sections for the study and selection of sites for engineering construction. It also includes the layout of structures, quantity and measurement determination,, "as built" surveys, and utility surveys. Your land surveying includes but is not limited to determining the location of land boundaries and land boundary corners; the division of land into smaller tracts including the layout of roads and streets and rights -of -way; and preparing plats or maps of land subdivisions and preparing and interpreting land descriptions for incorporation in various documents such as deeds and leases. You perform your duties and responsibilities with the aid of one assistant. Your work is carried out independently and requires very little supervision. These activities fall within the definition of public employee as contained in the regulations of the Commission in Section 1.1, subparagraph B(I). 51 Pa. Code 1.1. Under these circumstances and given your duties and responsibilities as outlined above, you are a "public employee" as that term is defined in the Ethics Law. Conclusion: You are to be considered a "public employee" in your capacity as the Chief of Surveys (Surveyor I) classified as a Surveyor Supervisor Technician with the Pennsylvania Fish Commission. Accordingly, you must file a Statement of Financial Interests for each year in which you hold the position outlined above and for the year following your termination of this service. If you have not already done so, a Statement of Financial Interests must be filed within 15 days of this Advice. This Statement of Financial Interests would report information of the prior calendar year. Pursuant to Section 7(11), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and Mr.. Donald M. Lane July 2, 1992 Page 7 evidence of good faith conduct in any other civil or criminal proceeding, provi4ing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given such. This letter is a public record and will be made available as, Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commis *ion will be scheduled and a formal Opinion from the Commission will bq issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa, Code 52.12. Sincerely, Vincent`'. Dopko Chief Counsel 7r_ - �:i