HomeMy WebLinkAbout10-504 Cutler
ADVICE OF COUNSEL
January 6, 2010
Ralph J. Teti, Esquire
Willig, Williams & Davidson
Twenty-Fourth Floor
1845 Walnut Street
Philadelphia, PA 19103
10-504
Dear Mr. Teti:
This responds to your letters dated October 26, 2009, and November 12, 2009,
by which you requested an advisory from the Pennsylvania State Ethics Commission.
Issue:
Whether an individual employed as a Drug and Alcohol Abuse Program
Manager with the City of Philadelphia Department of Behavioral Health and Mental
Retardation Services under job class specification 5F13 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., and particularly, the requirements for filing Statements of Financial
Interests.
Facts:
You have been authorized by Samuel Cutler (“Mr. Cutler”) to request an
advisory from the Pennsylvania State Ethics Commission on his behalf. You have
submitted facts, the material portion of which may be fairly summarized as follows.
Mr. Cutler is employed as a Drug and Alcohol Abuse Program Manager with the
City of Philadelphia (“City”) Department of Behavioral Health and Mental Retardation
Services (hereinafter also referred to as “the Department”) under job class specification
5F13. You have submitted a copy of job class specification 5F13 for Mr. Cutler’s
position as a Drug and Alcohol Abuse Program Manager, which document is
incorporated herein by reference.
Job class specification 5F13 provides, in pertinent part, as follows:
GENERAL DEFINITION
This is administrative work directing the planning, development,
coordination, and evaluation of substance abuse rehabilitation programs
such as re-education, housing, safe driving, evaluation, diagnosis and
treatment, and criminal offenders’ rehabilitation programs. Employees in
this class develop substance abuse rehabilitation programs and service
Teti/Cutler, 10-504
January 6, 2010
Page 2
standards, develop participant selection criteria and protocols to be used
by contracted agencies, and supervise contracted agencies and/or in-
house staff engaged in monitoring substance abuse program participants.
Responsibility for negotiating contracted services, establishing and
maintaining an effective system to identify, screen and select program
participants, and establishing and maintaining effective working
relationships with federal, state and local officials are significant aspects of
the work. Work is performed under the direction of an administrative
superior.
. . . .
------------------------------------------------------
TYPICAL EXAMPLES OF WORK (ILLUSTRATIVE ONLY)
Coordinates, plans and develops an alcohol and drug abuse rehabilitation
program; develops, in concert with city departments or other related
agencies, a mechanism to identify, screen and funnel substance
abusers into the program; conducts research and develops
selection criteria and protocols to be used by contractors in
selecting program participants; negotiates with a contracted health
service center a program to diagnose and evaluate individuals and
in certain cases treat those individuals; arranges with alcohol and
drug treatment organizations and centers to provide programs to
rehabilitate individuals by either using existing programs or
developing new ones; coordinates with all program agencies and/or
departments the monitoring of short and long term progress of all
program participants.
Supervises in-house or contracted staff engaged in selecting and
monitoring program participants; reviews individual cases; makes
final determination regarding the acceptability of clients into
programs; recommends alternative treatment programs; monitors
the activities of contracted agencies to ensure compliance with
contract requirements and federal, state and city regulations and
statutes.
Develops and reviews program goals by formulating with the respective
program participant or service provider the policies, standards and
procedures governing the various phases of the alcohol and drug
rehabilitation program; evaluates and reviews the quality and
effectiveness of the program from a management point of view;
recommends program modifications to better meet needs.
Plans and prepares the annual program budget based on grant awards
and contracted and negotiated services; reviews proposed budget
requests for compliance to city, state and federal guidelines to
assure adherence to accepted fiscal practices.
Keeps informed of and evaluates federal, state and private sources of
funding for services and research; develops and prepares grant
applications by coordinating and negotiating with the necessary
agencies or organizations, the type, manner and degree of services
to be provided as well as the mechanism for implementation;
attends meetings with federal, state and other officials to review
proposed programs and to clarify any questionable points.
Teti/Cutler, 10-504
January 6, 2010
Page 3
Prepares ands submits periodic reports on program activities and
achievement and on progress toward the overall program goals;
prepares or assists in the preparation of various reports to federal,
state and city funding agencies; prepares and submits for review
the proposed contracts for services being performed by outside
agencies.
Provides advisory services to public officials and private and community
groups or organizations on the program structure, goals and
results; conducts surveys and research studies on similar programs
and related activities throughout the country and incorporates and
reports significant findings; uses mass media, public speaking and
other methods to educate the public on the problems related to
substance abuse.
Performs related work as required.
. . . .
Job Class Specification 5F13, at 1-2.
You state that Mr. Cutler has authority to contract with vendors or providers.
You state that while Mr. Cutler’s job duties once involved budges and contracts, he now
does data collection work and drug and alcohol research for the Department. You state
that Mr. Cutler does not manage a program for the Department, although he did so
years ago. You further state that Mr. Cutler does not supervise any employees in the
Department and his work is supervised by an administrative superior.
You assert that Mr. Cutler does not have the authority to make final decisions or
to forward or stop recommendations from being sent to final decision makers. You
further assert that an individual employed in the position of Drug and Alcohol Abuse
Program Manager: (1) is not responsible for taking or recommending official action of a
non-ministerial nature that would bring such individual within the definition of “public
employee” as set forth in the Ethics Act; (2) is not the supervisor of the highest level in
the department or division in which such individual works; and (3) does not make
recommendations or take such actions that would affect other departments, divisions or
commissions within the City. You additionally assert that the position of Drug and
Alcohol Abuse Program Manager is more like that of a teacher or recreation leader, and
that the Regulations of the State Ethics Commission provide that persons in such
positions are generally not considered public employees.
Based upon the above, you ask whether Mr. Cutler, in his position as a Drug and
Alcohol Abuse Program Manager with the City Department of Behavioral Health and
Mental Retardation Services under job class specification 5F13, would be considered a
public employee subject to the Ethics Act, and in particular, the requirements for filing
Statements of Financial Interests pursuant to the Ethics Act.
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:
Teti/Cutler, 10-504
January 6, 2010
Page 4
§ 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.
(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.
Teti/Cutler, 10-504
January 6, 2010
Page 5
(I) 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.
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
Teti/Cutler, 10-504
January 6, 2010
Page 6
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. Commw. Ct. 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.g., Reese/Gilliland, Opinion 05-
005.
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 Mr. Cutler’s duties and responsibilities, the necessary conclusion is that in his position
as a Drug and Alcohol Abuse Program Manager with the City Department of Behavioral
Health and Mental Retardation Services under job class specification 5F13, Mr. Cutler is
a "public employee" subject to the Ethics Act, including the financial reporting and
disclosure requirements of the Ethics Act.
It is clear that in his capacity as a Drug and Alcohol Abuse Program Manager
under job class specification 5F13, Mr. Cutler has the ability to take or recommend
official action of a nonministerial nature with respect to subparagraphs (1) and (5) within
the definition of “public employee” as set forth in the Ethics Act, 65 Pa.C.S. § 1102. The
following duties and authority establish Mr. Cutler’s status as a public employee:
?
Directing the planning, development, coordination, and evaluation of substance
abuse rehabilitation programs;
?
Developing service standards, program participant selection criteria and
protocols to be used by contracted agencies;
?
Negotiating contracted services;
?
Supervising contracted agencies and/or in-house staff engaged in selecting and
monitoring substance abuse program participants;
?
Making final determinations regarding the acceptability of clients into programs;
?
Recommending alternative treatment programs;
?
Monitoring the activities of contracted agencies to ensure compliance with
contract requirements and federal, state and city regulations and statutes;
?
Planning and preparing the annual program budget based on grant awards and
contracted and negotiated services;
Teti/Cutler, 10-504
January 6, 2010
Page 7
?
Reviewing proposed budget requests for compliance to city, state and federal
guidelines to assure adherence to accepted fiscal practices;
?
Preparing and submitting for review proposed contracts for services being
performed by outside agencies; and
?
Contracting with vendors or providers.
The foregoing duties/authority would also meet the criteria for determining Mr.
Cutler’s 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 in his position as a Drug and Alcohol Abuse
Program Manager with the City Department of Behavioral Health and Mental
Retardation Services under job class specification 5F13, Mr. Cutler is 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:
As a Drug and Alcohol Abuse Program Manager with the City of
Philadelphia Department of Behavioral Health and Mental Retardation Services under
job class specification 5F13, Samuel Cutler is 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., and in
particular, the requirements for filing Statements of Financial Interests pursuant to the
Ethics Act.
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