HomeMy WebLinkAbout10-512 Teti
ADVICE OF COUNSEL
January 11, 2010
Ralph J. Teti, Esquire
Willig, Williams & Davidson
Twenty-Fourth Floor
1845 Walnut Street
Philadelphia, PA 19103
10-512
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 Recreation Leader 2 with the City of
Philadelphia Recreation Department under job class specification 9D12 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 Bethanne Perkowski (“Ms. Perkowski”) 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. Perkowski is employed as a Recreation Leader 2 with the City of
Philadelphia (“City”) Recreation Department under job class specification 9D12. You
have submitted a copy of job class specification 9D12 for Ms. Perkowski’s position as a
Recreation Leader 2, which document is incorporated herein by reference.
Job class specification 9D12 provides, in pertinent part, as follows:
GENERAL DEFINITION
This is supervisory and participatory recreation work directing a
moderately sized staff, either administering a program of activities for the
public and providing services and facilities for organized groups at an
intermediate sized recreation center, or providing recreation programs in a
secure detention center for youth awaiting adjudication or organizing and
directing volunteers and residents in the provision of on-site and off-site
recreation programs for assisted living residents. In a Recreation Center
Teti/Perkowski, 10-512
January 11, 2010
Page 2
an employee in this class has controlling responsibility for the organization
and implementation of programs at an intermediately sized recreation
center and the gym facilities at a nearby school or schools. Employees in
this class may be responsible for directing recreational activities and
coordinating maintenance at more than one site either for the City’s
Recreation Department, or for another City agency.
In the Juvenile Justice Center an employee in this class develops, plans,
and coordinates athletic, cultural and social recreation activities to meet
the needs and interests of center residents. Responsibilities for recreation
programs at the Assisted Living site involves [sic] scheduling, observing
and encouraging staff members to be creative in initiating new programs,
and supervising a group of specialists in aerobics, ceramics and music
therapy programs for center residents. Promoting acceptance of
programs, raising funds to support program needs and motivating
sustained participation are significant aspects of the work. Duties require
moderate physical effort and scheduled evening and weekend work.
Work is performed under the general supervision of a higher-level
recreation supervisor or administrative superior.
. . . .
------------------------------------------------------
TYPICAL EXAMPLES OF WORK (ILLUSTRATIVE ONLY)
RECREATION CENTER POSITIONS
Schedules, assigns and observes the activities of subordinate personnel
conducting athletic and cultural programs; orients new staff to
departmental policy and procedures; conducts staff meetings for center
personnel; trains personnel in skills and group motivation; evaluates
programs and personnel conducting programs; supervises the issuance,
use, care and return of recreation supplies and equipment; prepares and
maintains records of attendance, requisitions, deliveries and repairs;
requisitions supplies; prepares periodic reports on the center’s activities,
accomplishments and special events; participates in instructing and
leading groups in recreational activities; attends staff meetings with other
departmental personnel; serves on committees for district and citywide
events.
. . . .
Performs related work as required.
ASSISTED LIVING SITE POSITIONS
Schedules, observes and encourages staff members to be creative in
initiating new recreation programs; works with community groups to
secure donated services and resources; develops recreational programs
for residents who range in age from 30 years of age and over; coordinates
an intergenerational program to recruit neighborhood school children to
visit and work with the residents.
Supervises the issuance, use, care and return of recreational supplies and
equipment; secures funds for new equipment via fund raising or other
creative means; prepares and maintains records of resident attendance at
recreational activities; prepares monthly and quarterly reports for the
Board of Trustees, activity calendar, and the requisition and delivery of
supplies.
Teti/Perkowski, 10-512
January 11, 2010
Page 3
Performs related work as required.
JUVENILE JUSTICE POSITIONS
Develops, plans, teaches, supervises and coordinates athletic, cultural
and social recreation activities to meet the needs and interests of the
center residents such as dancing, ceramics, video games and arts and
craft; schedules, assigns and observes the activities of subordinate
recreation personnel conducting athletic and cultural programs; evaluates
programs and subordinate personnel who conduct recreational programs.
Supervises the issuance, use, care and return of recreation supplies and
equipment; prepares periodic reports on the centers [sic] activities,
accomplishments and special events; interprets the objectives of the
recreation program to participants and community groups; schedules
events, registers participants, and posts notices to advertise recreational
programs to center residents.
Performs related work as required.
. . . .
Job Class Specification 9D12, at 1-3.
You state that Ms. Perkowski works at District #5 of the Recreation Department.
You state that Ms. Perkowski’s position is not the supervisor of the highest level at the
Recreation Department where she is assigned or of the division in which she works.
You assert that Ms. Perkowski does not have the 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 contend that
the above-quoted job class specifications demonstrate that Ms. Perkowski is not
involved in budgetary matters and has no authority to spend Recreation Department
funds or contract with vendors.
You assert that an individual employed in the position of Recreation Leader 2 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 further assert that the Regulations of the State Ethics Commission
provide that persons in recreation leader positions are generally not considered public
employees.
Based upon the above, you ask whether Ms. Perkowski, in her position as a
Recreation Leader 2 with the City Recreation Department under job class specification
9D12, 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/Perkowski, 10-512
January 11, 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/Perkowski, 10-512
January 11, 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
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
Teti/Perkowski, 10-512
January 11, 2010
Page 6
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. Perkowski’s duties and responsibilities, the necessary conclusion is that in her
position as a Recreation Leader 2 with the City Recreation Department under job class
specification 9D12, Ms. Perkowski 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 Recreation Leader 2 under job class
specification 9D12, Ms. Perkowski 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. Perkowski’s status as a public employee:
?
Supervising and directing staff;
?
Coordinating maintenance at more than one site either for the City’s Recreation
Department or for another City agency;
?
Evaluating programs and subordinate personnel conducting programs;
?
Raising funds to support program needs, working with community groups to
secure donated services and resources, and securing funds for new equipment
via fund raising or other creative means;
?
Requisitioning supplies; and
?
Supervising the issuance, use, care and return of recreation supplies and
equipment.
The foregoing duties/authority would also meet the criteria for determining Ms.
Perkowski’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).
Although the Commission Regulations provide that persons in the position of
“recreation director” are generally not considered public employees subject to the Ethics
Act, 51 Pa. Code § 11(“public employee”)(v), in any given instance, the job title itself is
not determinative of status under the Ethics Act. In the instant matter, the
duties/authority of a Recreation Leader 2 for the City Recreation Department as set
Teti/Perkowski, 10-512
January 11, 2010
Page 7
forth in job class specification 9D12 establish status as a “public employee” subject to
the Ethics Act.
Therefore, you are advised that in her position as a Recreation Leader 2 with the
City Recreation Department under job class specification 9D12, Ms. Perkowski 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 Recreation Leader 2 with the City of Philadelphia Recreation
Department under job class specification 9D12, Bethanne Perkowski 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