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HomeMy WebLinkAbout10-515 Teti ADVICE OF COUNSEL January 12, 2010 Ralph J. Teti, Esquire Willig, Williams & Davidson Twenty-Fourth Floor 1845 Walnut Street Philadelphia, PA 19103 10-515 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 an Environmental Education Program Specialist with the City of Philadelphia Fairmount Park System under job class specification 9D27 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 Peter Kurtz (“Mr. Kurtz”) 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. Kurtz is employed as an Environmental Education Program Specialist with the City of Philadelphia (“City”) Fairmount Park System (“Park System”) under job class specification 9D27. You have submitted a copy of job class specification 9D27 for Mr. Kurtz’s position as an Environmental Education Program Specialist, which document is incorporated herein by reference. Job class specification 9D27 provides, in pertinent part, as follows: GENERAL DEFINITION This is specialized recreation and environmental education work directing environmental education programs at an environmental center. Work includes participating in and supervising subordinate environmental educators in the planning, preparation and presentation of educational programs based upon the natural resources of the land and its plant and animal life. The employee in this class supervises the development and implementation of environmental programs and projects for the visiting public as well as outreach programs for public, [sic] private schools and Teti/Kurtz, 10-515 January 12, 2010 Page 2 community groups. Publicizing and promoting environmental education, maintaining good community relationships, contacting community groups to promote activities at the centers, and assuring that activity schedules are established and maintained are significant aspects of the work. Work includes responsibility for planning and organizing specialized programs at the Pennypack or Wissahickon centers. Work is performed under the supervision of an administrative superior. . . . . ------------------------------------------------------ TYPICAL EXAMPLES OF WORK (ILLUSTRATIVE ONLY) Plans, organizes and conducts environmental educational programs at an environmental center, in park watersheds, at schools or in after school programs through an outreach program; initiates, researches and develops a wide range of instructional and recreational programs in natural history, environmental education and natural lands restoration; conducts walks throughout the center and other park areas explaining plants and visible wildlife signs; shows films related to nature; sets up workshops for children. Plans, assigns and reviews the work of staff responsible for the environmental education programs and activities at an environmental center; instructs staff and volunteers on new and changed techniques and information; instructs and trains new employees and volunteers. Plans, organizes and conducts natural lands restoration projects such as stream bank control, removal of invasive vines and reforestation; recruits and trains volunteers; demonstrates proper restoration techniques and oversees the work of volunteers. Researches magazines and related material to update material used in the programs; maintains contact with school administrators and teachers to determine how environmental education problems can be used to augment the school’s educational resources and curriculum; coordinates study program topics with teachers to complement classroom material. Participates in the research and compilation of information to obtain grant money for the environmental centers; may prepare grant applications. Conducts workshops for teachers; develops and conducts programs directed to special populations such as the blind, hearing impaired or senior citizens. Patrols the environmental center to determine any violations of the center’s grounds and facilities; advises violators of wrongdoings; notifies authorities of violations of center facilities and grounds. Plans, schedules and assigns routine grounds maintenance tasks such as trail maintenance and building custodial tasks; insures assignments are completed by maintenance staff; submits work orders for building maintenance and follows up with building maintenance staff to insure that repairs are completed in a timely manner. Maintain sub-ledger accounts and petty cash funds for the environmental center; prepares reports about center activities; submits reports as required; requests supplies and equipment. Teti/Kurtz, 10-515 January 12, 2010 Page 3 Reviews requests from volunteer groups to conduct environmental programs or land restoration projects in the center; issues permits; checks work to insure it is properly completed. Performs related work as required. . . . . Job Class Specification 9D27, at 1-2. Mr. Kurtz works in the Division of Environment, Stewardship and Education (“the Division”) within the Park System. You state that Mr. Kurtz is responsible for educational programs at the Pennypack Environmental Center of the Park System. Mr. Kurtz is supervised by the Director of Environmental Education, who in turn is supervised by the Director of the Division. You state that Mr. Kurtz is not the supervisor of the highest level at the site where he is assigned or of the division in which he works. You assert that Mr. Kurtz does not have the authority to make final decisions or to forward or stop recommendations from being sent to final decision makers and that he 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 Environmental Education Program Specialist 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 Environmental Education Program Specialist 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. Kurtz, in his position as an Environmental Education Program Specialist with the City Park System under job class specification 9D27, 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: § 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; Teti/Kurtz, 10-515 January 12, 2010 Page 4 (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. (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: Teti/Kurtz, 10-515 January 12, 2010 Page 5 (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 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 Teti/Kurtz, 10-515 January 12, 2010 Page 6 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. Kurtz’s duties and responsibilities, the necessary conclusion is that in his position as an Environmental Education Program Specialist with the City Park System under job class specification 9D27, Mr. Kurtz 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 an Environmental Education Program Specialist under job class specification 9D27, Mr. Kurtz 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 Mr. Kurtz’s status as a public employee: ? Maintaining sub-ledger accounts and petty cash funds for the environmental center; and ? Preparing grant applications. The foregoing duties/authority would also meet the criteria for determining Mr. Kurtz’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). It is unclear from the submitted facts: (1) whether Mr. Kurtz performs duties as a supervisor with respect to the employment of his subordinates, such as, for example, performing evaluations of staff or recommending or taking actions as to the hiring, firing, or disciplining of employees; (2) the nature and extent of Mr. Kurtz’s duties/authority with respect to natural lands restoration projects; and (3) the nature and extent of Mr. Kurtz’s duties/authority with respect to issuing permits. Depending upon facts that have not been submitted, such duties/authority could afford additional bases for Mr. Kurtz’s status as a public employee subject to the Ethics Act. Based upon the above, you are advised that in his position as an Environmental Education Program Specialist with the City Park System under job class specification 9D27, Mr. Kurtz 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 an Environmental Education Program Specialist with the City of Philadelphia Fairmount Park System under job class specification 9D27, Peter Kurtz 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. Teti/Kurtz, 10-515 January 12, 2010 Page 7 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