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HomeMy WebLinkAbout09-004 DuncavageOPINION OF THE COMMISSION Thomas B. Duncavage 1008 Gorman Street Philadelphia, PA 19116 -3710 I. ISSUE: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Nicholas A. Colafella Mark Volk DATE DECIDED: 7/22/09 DATE MAILED: 8/4/09 Dear Mr. Duncavage: This Opinion is issued in response to the appeal of Advice of Counsel 09 -550, which was issued on May 18, 2009. Whether an individual employed as an Administrative Specialist 2 with the City of Philadelphia under job class specification 2L17 would be considered 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, and in particular, the requirements for filing Statements of Financial Interests pursuant to the Ethics Act. II. FACTUAL BASIS FOR DETERMINATION: By faxed letter dated June 12, 2009, you appealed Advice of Counsel 09 -550, which was issued on May 18, 2009. Your initial advisory request presented facts that were summarized in the Advice of Counsel as follows: 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. 09 -004 Duncavage, 09 -004 August 4, 2009 Page 2 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: 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 performed 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. 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 Duncavage, 09 -004 August 4, 2009 Page 3 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 the authority to perform per the above job class specification for an Administrative Specialist 2. Duncavage, Advice of Counsel 09 -550, at 1 -3. Advice of Counsel 09 -550 determined that 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 this Commission, and in particular, the requirements for filing Statements of Financial Interests pursuant to the Ethics Act. The Advice determined that you have the ability to take or recommend official action of a non - ministerial nature that would satisfy subparagraph (5) within the statutory definition of "public employee" (pertaining to any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any Duncavage, 09 -004 August 4, 2009 Page 4 person" (65 Pa.C.S. § 1102)), as well as the criteria set forth in this Commission's Regulations for determining status as a public employee, specifically at 51 Pa. Code § 11.1, "public employee," subparagraphs (i) and (ii). The Advice of Counsel specifically noted that 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. The Advice of Counsel noted that 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. By faxed letter dated June 12, 2009, you appealed Advice of Counsel 09 -550. You express your view that your actual job duties are far removed from those contained in job class specification 2L17. You state that your main work is to compile operational data which may or may not be utilized by the City Water Department. You state that all work which you perform is preliminary and subject to modification, revision, or non - utilization. You further state that your manager makes presentations to the City Water Department along with preliminary recommendations which are subject to revision. In your appeal letter, you contend that all of your work is supervised, and you do not manage or supervise anyone or make presentations to internal staff or executives. You contend that you do not recommend official actions, and you do not make final technical recommendations. You further contend that you have no authority to make final decisions or final internal recommendations or to stop recommendations. You assert that you do not create or modify budgets or perform any contract assessments or grant analysis. You further assert that you do not affect the work of any other organizations. You have submitted a copy of your resume. The job class specification for your position (job class specification 2L17) is incorporated herein by reference. By letter dated June 17, 2009, you were notified of the date, time and location of the public meeting at which your request would be considered. III. 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, this 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. Our review of this matter is de novo (Clarke, Opinion 04 -012; Spear, Opinion 04- 011): "De novo review entails, as the term suggests, full consideration of the case anew. The reviewing body is in effect substituted for the prior decision maker and redecides the case." D'Arciprete v. D'Arciprete, 323 Pa. Super. 430, 470 A.2d 995 (1984) (citations omitted). See also, Hayes v. Donohue Designer Kitchen, Inc., 2003 Pa. Super. 84, 818 A.2d 1287 (2003); Commonwealth v. Krut, 311 Pa. Super. 64, 457 A.2d 114 (1983); In re Duncavage, 09 -004 August 4, 2009 Page 5 Audit of School District, 354 Pa. 232, 47 A.2d 292 (1946). We shall begin our analysis by noting the established principle that the Ethics Act, as remedial legislation, is to be liberally construed. Maunus v. State Ethics Commission, 518 Pa. 592, 544 A.2d 1324 (1988). 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 this 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. Duncavage, 09 -004 August 4, 2009 Page 6 (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: (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. The following terms are defined in the Ethics Act as follows: § 1102. Definitions Duncavage, 09 -004 August 4, 2009 Page 7 "Ministerial action." An action that a person performs in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of the person's own judgment as to the desirability of the action being taken. "Nonministerial actions." An action in which the person exercises his own judgment as to the desirability of the action taken. 65 Pa.C.S. § 1102. As noted in the Advice of Counsel, 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, Phillips 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. In applying the objective test in the instant matter, we conclude 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 this Commission. 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; 51 Pa. Code § 11.1( "public employee "); see also, Gilliland /Reese, Opinion 05 -005. The objective source defining your position - -job class specification 2L17 -- establishes that as an Administrative Specialist 11 with the City, depending upon your specialty, you have the authority, inter alia, to do the following: • Act as project manager on a variety of administrative and operational issues and determine the scope of projects; • Evaluate projects upon completion and make recommendations for future projects; • Review and evaluate preliminary capital and operating budgets submitted by division managers and formulate revisions to budget proposals; • Assess feasibility of proposed budget strategies and make recommendations for change, and determine priorities and prepare estimates; and • Analyze grant applications and parameters of proposed grant- funded programs. Based upon the above, we find that your authority includes responsibility for taking or recommending official action of a nonministerial nature with regard to category (5) of the Ethics Act's definition of "public employee," specifically, any other activity where the Duncavage, 09 -004 August 4, 2009 Page 8 official action has an economic impact of greater than a de minimis nature on the interests of any person." 65 Pa.C.S. § 1102. In particular, there is no question that in reviewing and evaluating preliminary capital and operating budgets submitted by division managers and formulating revisions to budget proposals, your official job duties and responsibilities would have a significant economic impact upon the interests of taxpayers with regard to the expenditure of public funds. Cf., McGill, Opinion 07 -004; Goddard, Opinion 07 -019. Additionally, your authority to: (1) assess feasibility of proposed budget strategies and make recommendations for change, and determine priorities and prepare estimates; and (2) analyze grant applications and parameters of proposed grant- funded programs, would provide additional support for the conclusion that you are a "public employee" subject to the provisions of the Ethics Act. As noted above, the objective source defining your position (job class specification 2L17) is dispositive of your status under the Ethics Act —not claims as to actual duties performed. Therefore, your assertions as to the actual duties performed do not alter our conclusion that your duties and authority as an Administrative Specialist 2 with the City under job class specification 2L17 establish your status as a "public employee" subject to the Ethics Act. Having determined that you are a public employee subject to the Ethics Act and the Regulations of this Commission, it necessarily follows that you are required to file Statements of Financial Interests pursuant to the Ethics Act. Based upon the above analysis, we deny the appeal and affirm Advice of Counsel 09 -550. Lastly, this matter has only been addressed under the Ethics Act. IV. CONCLUSION: In your capacity 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 ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq. You would be required to file Statements of Financial Interests pursuant to the Ethics Act. The appeal is denied. Advice of Counsel 09 -550 is affirmed. This matter has only been addressed under the Ethics Act. Pursuant to Section 1107(10) of the Ethics Act, 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, Louis W. Fryman Chair Duncavage, 09 -004 August 4, 2009 Page 9