HomeMy WebLinkAbout09-550 DuncavageThomas B. Duncavage
1008 Gorman Street
Philadelphia, PA 19116 -3710
Dear Mr. Duncavage:
ADVICE OF COUNSEL
May 18, 2009
GENERAL DEFINITION
This is full - performance level administrative work, providing analytical
services to improve, develop, and maintain operating efficiencies for a City
department. Employees in this class conduct analyses, develop planning
strategies, and prepare comprehensive reports for review by department
managers. Work is erformed in one of two functional areas, and includes
making recommendations for changing operating systems, procedures
and organizational structures and implementing process improvements.
Representing higher level administrators at meetings and ensuring that
assignments are performed in accordance with organizational objectives
are important aspects of the work.
Work is performed under the direction of a higher level administrative or
technical superior.
09 -550
This responds to your faxed letter dated April 15, 2009, by which you requested
advice from the Pennsylvania State Ethics Commission.
Issue: Whether as an Administrative Specialist 2 with the City of Philadelphia
under job class specification 2L17, you would be considered 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 seek a determination as to whether, in your capacity as an
Administrative Specialist 2 with the City of Philadelphia ( "City ") under job class
specification 2L17, you are a "public employee" subject to the Ethics Act and the
Regulations of the State Ethics Commission. See, 65 Pa.C.S. §1102; 51 Pa. Code
§11.1. You specifically question whether you are required to file Statements of
Financial Interests.
You have submitted a copy of job class specification 2L17 for your position as an
Administrative Specialist 2, which document is incorporated herein by reference. Job
class specification 2L17 provides, in pertinent part, as follows:
Duncavage, 09 -550
May 18, 2009
Page 2
TYPICAL EXAMPLES OF WORK (ILLUSTRATIVE ONLY)
Both Specialties
• Performs all duties listed in Administrative Specialist 1 class
specification.
• Prepares comprehensive reports and correspondence, outlining
recommendations for improvements; presents recommendations for
change to executive staff.
• Prepares and presents related work as required.
OPERATIONS AND ANALYSIS SPECIALTY
• Performs research and makes presentations to interested groups on
various administrative programmatic or operating aspects of
department; facilitates meetings of internal and external groups;
participates in committees and task forces established to analyze and
remediate systemic problems; develops and implements corrective
actions.
• Acts as project manager on [a] variety of administrative and
operational issues; determines scope of project; develops schedules
and timelines for project completions; ensures achievement of
departmental objectives; evaluates project upon completion and makes
recommendations for future projects.
• Analyzes federal and state proposals and legislation which affect the
programs or operations of assigned department; recommends actions
to ensure compliance with state and federal laws; prepares a variety of
manuals, policy statements and procedures to facilitate understanding
of departmental and city regulations and requirements.
FINANCE AND BUDGET SPECIALTY
• Reviews and evaluates preliminary capital and operating budgets
submitted by division managers; formulates revisions to budget
proposals; provides direction to managers regarding preparation of
schedules and justifications.
• Prepares and presents periodic reports on budget and other financial
transactions; prepares reports required by funding and monitoring
agencies; assesses feasibility of proposed budget strategies and
makes recommendations for change; determines priorities and
prepares estimates.
• Analyzes grant applications and parameters of proposed grant- funded
programs; prepares cost schedules for inclusion in grant applications;
develops grant applications; reviews grant applications for accuracy
and completeness; prepares revenue projections; estimates increased
operating expenses to be incurred by new programs; anticipates and
prepares for financial exigencies.
Job Class Specification 2L17, at 1.
It is administratively noted that the submitted facts do not disclose the duties
listed in the Administrative Specialist 1 job class specification, which duties you have
Duncavage, 09 -550
May 18, 2009
Page 3
the authority to perform per the above job class specification for an Administrative
Specialist 2.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester
based upon the facts that the requester has submitted. In issuing the advisory based
upon the facts that the requester has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that have not
been submitted. It is the burden of the requester to truthfully disclose all of the material
facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a
defense to the extent the requester has truthfully disclosed all of the material facts.
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 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 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.
Duncavage, 09 -550
May 18, 2009
Page 4
(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.
(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:
Duncavage, 09 -550
May 18, 2009
Page 5
(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.
51 Pa. Code § 11.1.
Status as a "public employee" subject to the Ethics Act is determined by an
objective test. The objective test applies the Ethics Act's definition of the term "public
employee" and the related regulatory criteria to the powers and duties of the position
itself. Typically, the powers and duties of the position are established by objective
sources that define the position, such as the job description, job classification
specifications, and organizational chart. The objective test considers what an individual
has the authority to do in a given position based upon these objective sources, rather
than the variable functions that the individual may actually perform in the position. See,
Philips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion
04 -002; Shienvold, Opinion 04 -001; Shearer, Opinion 03 -011. The Commonwealth Court
of Pennsylvania has specifically considered and approved this Commission's objective
test and has directed that coverage under the Ethics Act be construed broadly and that
exclusions under the Ethics Act be construed narrowly. See, Phillips, supra.
The first portion of the statutory definition of "public employee" includes
individuals with authority to take or recommend official action of a nonministerial nature.
65 Pa.C.S. § 1102. Likewise, the regulatory criteria for determining status as a public
employee, as set forth in 51 Pa. Code § 11.1( "public employee ")(ii), include not only
individuals with authority to make final decisions but also individuals with authority to
forward or stop recommendations from being sent to final decision - makers; individuals
who prepare or supervise the preparation of final recommendations; individuals who
make final technical recommendations; and individuals whose recommendations are an
inherent and recurring part of their positions. See, e.q., Reese /Gilliland, Opinion 05-
005.
In applying the objective test in the instant matter, the necessary conclusion is that,
in your capacity as an Administrative Specialist 2 with the City under job class
specification 2L17, you are a "public employee" subject to the Ethics Act and the
Regulations of the State Ethics Commission, and in particular, the requirements for filing
Statements of Financial Interests pursuant to the Ethics Act.
As an Administrative Specialist 2 under job class specification 2L17, you have
the ability to take or recommend official action of a nonministerial nature with respect to
subparagraph (5) within the definition of "public employee" as set forth in the Ethics Act,
65 Pa.C.S. § 1102. Specifically, per the job class specification, and depending upon the
"specialty" to which you are assigned, you have the authority to: (1) act as project
manager on a variety of administrative and operational issues and determine the scope
of projects; (2) evaluate projects upon completion and make recommendations for
future projects; (3) review and evaluate preliminary capital and operating budgets
submitted by division managers and formulate revisions to budget proposals; (4) assess
feasibility of proposed budget strategies, make recommendations for change, and
determine priorities and prepare estimates; and (5) analyze grant applications and
parameters of proposed grant- funded programs. Additionally, depending upon facts not
included within your submission, your authority to perform duties listed in the
Administrative Specialist 1 job class specification could provide additional support for
the conclusion that you are a "public employee" subject to the provisions of the Ethics
Act.
Duncavage, 09 -550
May 18, 2009
Page 6
The foregoing 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," subparagraphs (i) and (ii).
Therefore, you are advised that as an Administrative Specialist 2 with the City
under job class specification 2L17, you are a "public employee" subject to the provisions
of the Ethics Act and the Regulations of the State Ethics Commission, and in particular,
the requirements for filing Statements of Financial Interests pursuant to the Ethics Act.
Conclusion: In your capacity as an Administrative Specialist 2 with the City of
Philadelphia under job class specification 2L17, you are a "public employee" subject to
the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq.,
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 termination of such service.
Pursuant to Section 1107(11) of the Ethics Act, 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 requester 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.
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,
Robin M. Hittie
Chief Counsel