HomeMy WebLinkAbout10-513 Morales
ADVICE OF COUNSEL
January 11, 2010
Ralph J. Teti, Esquire
Willig, Williams & Davidson
Twenty-Fourth Floor
1845 Walnut Street
Philadelphia, PA 19103
10-513
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 Social Work Supervisor with the City
of Philadelphia Office of Supportive Housing under job class specification 5A08 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 Luz Morales (“Ms. Morales”) to request an
advisory from the Pennsylvania State Ethics Commission on her behalf. You have
submitted facts, the material portion of which may be fairly summarized as follows.
Ms. Morales is employed as a Social Work Supervisor with the City of
Philadelphia (“City”) Office of Supportive Housing under job class specification 5A08.
You have submitted a copy of job class specification 5A08 for Ms. Morales’ position as
a Social Work Supervisor, which document is incorporated herein by reference.
Job class specification 5A08 provides, in pertinent part, as follows:
GENERAL DEFINITION
This is supervisory social work within the assigned specialty. An
employee in this class supervises the activities of, and gives consultation
and direction to the social workers engaged in performing a variety of
counseling, referral, placement and/or adoptive functions related to
services to children and youth, services to adults and the aging, or
correctional rehabilitation. The employee has controlling responsibility for
the operation of a unit within a specialized social work program and
insures that the unit conforms to standards, regulations and laws of the
department, commonwealth, and federal agencies. Work includes
assigning cases, reviewing case activities, determining training and
Teti/Morales, 10-513
January 11, 2010
Page 2
developmental needs, training employees, reviewing worker
performances, and initiating corrective action when necessary.
Contact with individuals, their families, representatives of private and
public welfare agencies, representatives of professional and community
groups, and the general public as well as supervision of social workers
and other subordinate staff are of major significance to the work. Work is
performed under the general supervision of a functional superior.
------------------------------------------------------
TYPICAL EXAMPLES OF WORK (ILLUSTRATIVE ONLY)
GENERAL SPECIALTY
?
Assigns, reviews, and evaluates the activities of a group of social
workers providing services to clients; supervises workers in such
functional areas as residential care, adoption, homemaker services,
foster care, guardianship, purchase of services, counseling and
referral, and protective services; trains workers in the problems of
adults and children; discusses the appropriate placement and
services required; determines whether court action is required;
evaluates services provided to individuals by private, public and
contracted agencies; reviews the development and implementation
of service plans within the service setting.
CORRECTIONAL SPECIALTY
?
Assigns, reviews, and evaluates the activities of a group of social
workers providing services to incarcerated or detained adults or
youths; provides direct counseling services to incarcerated adults
and youths; reviews and evaluates social service practices of
facility; trains workers in the problems of incarcerated youths and
adults; consults with other officials to coordinate procedures and
develop new practices; develops programs to counsel, refer, place
and/or rehabilitate individuals; counsels family members; trains staff
in counseling methods and practices; coordinates activities of
volunteer groups with program objectives; conducts classification
conferences; serves as voting member at disciplinary board
hearings.
BOTH SPECIALTIES
?
Plans, assigns and reviews the activities of a group of social
workers performing casework functions within assigned specialty;
recommends changes in practices and procedures to increase
operating efficiency and expedite work flow; confers with superiors
on policies, rules, and regulations related to social service
functions; consults with private and public welfare agency officials
on established procedures and problem areas; recommends
establishing or modifying current methods and policies; confers with
superior on unusual social service problems.
?
Screens cases initially to determine level of risk to individual,
individual’s eligibility for program, and services required; reviews
cases for socio-economic, medical, educational, employment
and/or other information; assigns cases and meets with appropriate
social worker to discuss status of cases, problems encountered,
basis for actions, and alternative solutions; reviews and discusses
Teti/Morales, 10-513
January 11, 2010
Page 3
progress, reviews workers’ reports; provides supportive liaison
services and assistance when required; reviews recommendations
for case closings and transfers; evaluates workers’ performance.
?
Trains social workers in social work techniques and methodologies;
orients worker with appropriate laws, policies, regulations and
procedures; evaluates worker development, performance and
problem areas to determine training needs; takes corrective action
where necessary.
?
Communicates with other public and private agencies, hospitals
and institutions to exchange information and develop resources;
prepares correspondence; answers inquiries relating to services
and clients.
?
Performs related work as required.
. . . .
Job Class Specification 5A08, at 1-2.
You state that Ms. Morales supervises three Social Workers and works with
another Social Work Supervisor assigned to the same shift who oversees three other
Social Workers. You state that Ms. Morales reviews the Social Workers’ assessments
of eligible persons for public aid. You further state that approval for public aid must
meet the guidelines established by the City and that Ms. Morales’ approval of such aid
is not sufficient for an applicant to qualify for such aid.
You contend that Ms. Morales does not have discretion in the operation of the
unit but must follow local, state, and federal guidelines in managing the three Social
Workers underneath her. You state that any discipline Ms. Morales imposes upon other
employees must strictly follow the personnel department of the Office of Supportive
Housing.
You state that Ms. Morales is supervised by functional superior(s) who, in turn,
report to the Director of the Office of Supportive Housing. You state that Ms. Morales is
not the supervisor of the highest level where she is assigned or of the division in which
she works.
You state that Ms. Morales has no authority to purchase materials for her unit
and has no control over any petty cash.
You assert that Ms. Morales has, at best, limited authority to make final decisions
or to forward or stop recommendations from being sent to final decision makers and that
she does not make recommendations or take such actions that would affect other
departments, divisions or commissions within the City. You further assert that an
individual employed in the position of Social Work Supervisor is not responsible for
taking or recommending official action of a nonministerial 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 Social Work Supervisor 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 Ms. Morales, in her position as a Social
Work Supervisor with the City Office of Supportive Housing under job class specification
5A08, 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
Teti/Morales, 10-513
January 11, 2010
Page 4
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.
(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/Morales, 10-513
January 11, 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.
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January 11, 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 Ms. Morales’ duties and responsibilities, the necessary conclusion is that in her position
as a Social Work Supervisor with the City Office of Supportive Housing under job class
specification 5A08, Ms. Morales 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 her capacity as a Social Work Supervisor under job class
specification 5A08, Ms. Morales has 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. The following duties and
authority establish Ms. Morales’ status as a public employee:
?
Exercising controlling responsibility for the operation of a unit within a specialized
social work program and ensuring that the unit conforms to standards,
regulations and laws of the department, Commonwealth, and federal agencies;
?
Supervising and providing direction to Social Workers engaged in performing a
variety of social work functions related to services to children and youth, adults
and the aging, or correctional rehabilitation;
?
Supervising other subordinate staff;
?
Screening cases initially to determine the individual’s eligibility for the program,
and the services required;
?
Discussing the appropriate placement and services required and determining
whether court action is required;
?
Reviewing the Social Workers’ assessments of eligible persons for public aid;
Teti/Morales, 10-513
January 11, 2010
Page 7
?
Assigning and reviewing the activities of a group of Social Workers providing
services to clients and performing casework functions within an assigned
specialty;
?
Reviewing and evaluating worker performance and initiating corrective action
when necessary;
?
Evaluating services provided to individuals by private, public and contracted
agencies;
?
Reviewing and evaluating social service practices of facility;
?
Reviewing the development and implementation of service plans within the
service setting;
?
Developing programs to counsel, refer, place and/or rehabilitate individuals;
?
Serving as a voting member at disciplinary board hearings;
?
Consulting with other officials to develop new practices;
?
Making recommendations for establishing or modifying current methods and
policies; and
?
Reviewing recommendations for case closings and transfers.
The foregoing duties/authority would also meet the criteria for determining Ms.
Morales’ 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 her position as a Social Work Supervisor with
the City Office of Supportive Housing under job class specification 5A08, Ms. Morales 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 Social Work Supervisor with the City of Philadelphia Office of
Supportive Housing under job class specification 5A08, Luz Morales 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.
Teti/Morales, 10-513
January 11, 2010
Page 8
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