HomeMy WebLinkAbout10-505 Utz
ADVICE OF COUNSEL
January 7, 2010
Ralph J. Teti, Esquire
Willig, Williams & Davidson
Twenty-Fourth Floor
1845 Walnut Street
Philadelphia, PA 19103
10-505
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 Library Supervisor I with the City of
Philadelphia, Free Library of Philadelphia under job class specification 9B08 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 David Utz (“Mr. Utz”) 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. Utz is employed as a Library Supervisor I with the City of Philadelphia, Free
Library of Philadelphia (hereinafter also referred to as “the Free Library”) under job class
specification 9B08. You have submitted a copy of job class specification 9B08 for Mr.
Utz’s position as a Library Supervisor I, which document is incorporated herein by
reference.
Job class specification 9B08 provides, in pertinent part, as follows:
GENERAL DEFINITION
This is first supervisory level library work in a municipal library system.
Employees in this class either manage a branch or a special collection, a
technical services operations, a library system function that provides
regional services or assist a manager of a City-wide reference and
information department. Work includes performing difficult or original
cataloging or ordering of rare books, orchestral music titles, and
specialized library materials, participating in materials selections,
performing technical services, implementing staff training programs, and
program development and evaluation. Supervising the provision of
reference and reader advisory services, technical services, and rare book
Teti/Utz, 10-505
January 7, 2010
Page 2
or orchestral music cataloging, through subordinate librarians, technicians
and clerical personnel, and contacting representatives of outside
organizations to promote the library’s services and solicit their assistance
are significant aspects of the work. Work is performed under the
supervision of a higher level librarian or library administrator.
. . . .
------------------------------------------------------
TYPICAL EXAMPLES OF WORK (ILLUSTRATIVE ONLY)
Assigns and reviews the work of subordinate librarians, technicians and/or
clerical staff; prepares work schedules and ensures proper
coverage; ascertains that patrons’ requests are properly handled in
accordance with library procedures and policies; orients and trains
subordinate personnel in duties and responsibilities and
departmental policies and procedures; reviews and revises the
work of subordinate staff.
Maintains assigned collection; allocates space; weeds and removes worn
and obsolete materials from collection.
Reviews newspapers, professional and publishers’ trade journals and
bibliographies for selection of reference materials; reviews and
evaluates books, periodicals, and pamphlets for inclusion in lists for
branch and regional collections; prepares written book reviews and
makes recommendations for purchase by the library system.
Supervises and participates in the provision of reference and reader
advisory services; instructs patrons in the use of library facilities;
prepares bibliographies; responds to patrons’ complaints.
. . .
Selects vendors to supply materials based on interviews with vendors’
representatives, other librarians’ recommendations, and
comparisons of discounts, services and service fees; arranges for
the acquisition of missing issues from back issues dealers;
establishes accounts with dealers to exchange unneeded material
for microforms or back issues.
Supervises the receipt, processing and distribution of books, periodicals,
microforms, standing orders and other library materials, maintains
the flow of work by setting priorities, assigning special projects and
reassigning duties during staff absences; trains new employees in
unit practices and procedures.
Initiates payment for materials ordered, discusses accounts with vendors
and publishers; prepares statistical reports to higher level technical
services librarians and other library administrators.
Trains and instructs lower level librarians, technicians, and clerical
personnel in the use of the Dewey Decimal Classification System,
the assignment of Cutter numbers, cataloging rules, Library of
Congress Subject Headings and other bibliographic tools to
classify, describe and provide author and subject access to
materials; instructs lower level staff in the use of in-house and
national computer catalog data bases; provides training in the
organization and use of departmental files; prepares and oversees
exercises in tagging and authority checking.
Teti/Utz, 10-505
January 7, 2010
Page 3
Performs more difficult cataloging work for books; serials, periodicals,
monograph series; microforms, phonodiscs and other materials;
develops bibliographic descriptions of items and assigns access
points for main and added entries; classifies items by the Dewey
Decimal Classification system and assigns unique call numbers;
searches in-house files, national print, and computer catalog data
bases for existing records; uses appropriate cataloging rules and
formats to catalog materials.
. . . .
May supervise custodial/security personnel.
Performs related work as required.
. . . .
Job Class Specification 9B08, at 1-3.
You state that Mr. Utz works in the Kingsessing Branch (“the Branch”) of the Free
Library, where he is responsible for cataloging the Branch’s collection and managing the
Branch’s full-time staff. Mr. Utz’s position is the highest supervisor over the staff at the
Branch. You state that Mr. Utz is supervised by higher level librarians and library
administrators, who in turn report to the President and Director of the Free Library.
You note that Mr. Utz supervises staff with responsibilities over the cash register
for the Branch, which register is used to collect library fees, pay carfare for staff, and
purchase local newspapers.
You state that Mr. Utz has no discretion regarding the repair of the physical plant
of the Branch.
You state that while the above-quoted job class specification provides that a
Library Supervisor I “selects vendors to supply materials,” “initiates payment for
materials ordered,” and “discusses accounts with vendors and publishers,” Mr. Utz does
not perform such duties. You state that Mr. Utz has limited authority to purchase
materials for the Branch and that: (1) he may not select the vendors; (2) he does not
generate purchase orders; and (3) any such purchases must have the approval of the
Materials Management Department.
You assert that Mr. Utz: (1) has, at best, limited authority to make final decisions
or to forward or stop recommendations from being sent to final decision makers; (2)
does not make recommendations or take such actions that would affect other
departments, divisions or commissions within the City of Philadelphia; and (3) has no
authority to discipline, suspend, or terminate an employee. You further assert that an
individual employed in the position of Library Supervisor I 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. You additionally
assert that the position of Library Supervisor I 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. Utz, in his position as a Library
Supervisor I with the Free Library of Philadelphia under job class specification 9B08,
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
Teti/Utz, 10-505
January 7, 2010
Page 4
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.
(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.
Teti/Utz, 10-505
January 7, 2010
Page 5
(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.
(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.
Teti/Utz, 10-505
January 7, 2010
Page 6
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,
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 the
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. Utz’s duties and responsibilities, the necessary conclusion is that in his position as
a Library Supervisor I with the Free Library of Philadelphia under job class specification
9B08, Mr. Utz 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 Library Supervisor I under job class
specification 9B08, Mr. Utz 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. Utz’s status as a public employee:
?
Managing a branch or special collection, technical services operations, or a
library system function that provides regional services, or assisting a manger of a
City-wide reference and information department;
?
Managing the Branch’s full-time staff;
?
Assigning and reviewing the work of subordinate librarians, technicians and/or
clerical staff, preparing staff work schedules and ensuring proper coverage;
?
Participating in materials selections and making recommendations for purchase
by the library system;
?
Selecting vendors to supply materials;
?
Establishing accounts with dealers to exchange unneeded material for
microforms or back issues;
Teti/Utz, 10-505
January 7, 2010
Page 7
?
Supervising the receipt, processing and distribution of books, periodicals,
microforms, standing orders and other library materials;
?
Initiating payment for materials ordered and discussing accounts with vendors
and publishers;
?
Supervising staff with responsibilities over the Branch cash register; and
?
Supervising custodial/security personnel.
The foregoing duties/authority would also meet the criteria for determining Mr.
Utz’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 Library Supervisor I with the
Free Library of Philadelphia under job class specification 9B08, Mr. Utz 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 Library Supervisor I with the City of Philadelphia, Free Library of
Philadelphia under job class specification 9B08, David Utz 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