HomeMy WebLinkAbout10-514 Quiachon
ADVICE OF COUNSEL
January 12, 2010
Ralph J. Teti, Esquire
Willig, Williams & Davidson
Twenty-Fourth Floor
1845 Walnut Street
Philadelphia, PA 19103
10-514
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 Youth Detention Counselor
Supervisor with the City of Philadelphia Department of Human Services under job class
specification 5B24 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 Raymond Quiachon (“Mr. Quiachon”) 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. Quiachon is employed as a Youth Detention Counselor Supervisor with the
City of Philadelphia (“City”) Department of Human Services under job class specification
5B24. You have submitted a copy of job class specification 5B24 for Mr. Quiachon’s
position as a Youth Detention Counselor Supervisor, which document is incorporated
herein by reference.
Job class specification 5B24 provides, in pertinent part, as follows:
GENERAL DEFINITION
This is youth custody and counseling work supervising a group of
subordinates engaged in providing security, counseling and residential
care to youths in a detention facility. An employee in this class is
responsible for a wing in the detention living area or other areas, such as
gym, school rooms, or cafeteria. Employees monitor the interaction of
subordinate staff and youths to ensure that security and discipline are
maintained and that constructive counseling of youths is provided by
subordinates. Employees are in direct contact with staff and/or residents
in area of responsibility at all times. Assuring that activities in a wing or
Teti/Quiachon, 10-514
January 12, 2010
Page 2
area of responsibility conform to mandated State, American Correctional
Association, departmental and divisional regulations, policies and
standards mandated, are of major significance to the work. Work is
performed under the general supervision of a higher-level youth detention
superior.
. . . .
------------------------------------------------------
TYPICAL EXAMPLES OF WORK (ILLUSTRATIVE ONLY)
Supervises a group of subordinate detention counselors engaged in
providing security, counseling, and residential care to youths in a
detention facility; prepares weekly work schedule for subordinates;
modifies work schedule as needed to provide for the most
adequate coverage with the staff available; monitors area activities
on-site at all times, overseeing subordinate staff as well as facility
residents; checks area activity logs regularly, including room
restriction and isolation logs, to ensure they are properly annotated
and maintained; files and routes all logs to supervisor or shift
manager’s office.
Observes subordinates and youths in assigned area; instructs staff in
proper methods and procedure of detention; directs staff in
conducting daily room shakedowns; maintains behavior
management system and point accounts; moves with wing to non-
living areas such as school rooms, gymnasiums or cafeteria;
monitors activities of subordinates and youths during assigned tour;
provides individual counseling to youths with behavioral problems;
inspects living areas for cleanliness; reviews incident reports for
thoroughness; prepares monthly reports on staff activities and
performance; coordinates daily wing or area activities with other
units or facility; prepares requests for materials and supplies.
Prepares monthly reports on subordinates’ activities and performance;
monitors and approves employee time records; monitors employee
attendance; checks and approves sick-time and vacations; instructs
subordinates in the principles and procedures of delinquent youth
care as mandated by the State, American Correctional Association,
and the department.
Performs related work as required.
. . . .
Job Class Specification 5B24, at 1-2.
Mr. Quiachon works in the Youth Study Center of the Department of Human
Services where he supervises a staff consisting of Youth Detention Counselors. Mr.
Quiachon is supervised by a higher level youth detention superior. You state that Mr.
Quiachon is not the supervisor of the highest level at the site where he is assigned or of
the division in which he works.
You state that Mr. Quiachon’s job responsibilities include finding staff
replacements when someone calls off work and that he can recommend discipline
subject to the approval of his supervisor. You state that Mr. Quiachon has no authority
to authorize overtime and is not involved in the budget or expenditures of the
Department of Human Services. You further state that Mr. Quiachon makes no
decisions about residents that have an economic impact.
Teti/Quiachon, 10-514
January 12, 2010
Page 3
You assert that Mr. Quiachon 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 Youth Detention Counselor 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.
Based upon the above, you ask whether Mr. Quiachon, in his position as a Youth
Detention Counselor Supervisor with the City Department of Human Services under job
class specification 5B24, 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;
(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":
Teti/Quiachon, 10-514
January 12, 2010
Page 4
(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:
(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.
Teti/Quiachon, 10-514
January 12, 2010
Page 5
(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
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. Quiachon’s duties and responsibilities, the necessary conclusion is that in his
position as a Youth Detention Counselor Supervisor with the City Department of Human
Services under job class specification 5B24, Mr. Quiachon 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 Youth Detention Counselor Supervisor under
job class specification 5B24, Mr. Quiachon 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. Quiachon’s status as a public employee:
Teti/Quiachon, 10-514
January 12, 2010
Page 6
?
Supervising a group of subordinate detention counselors engaged in providing
security, counseling and residential care to youths in a detention facility;
?
Preparing weekly work schedule for subordinates and modifying work schedule
as needed;
?
Monitoring and/or approving employee time records and attendance and
checking and approving sick-time and vacations; and
?
Recommending discipline of staff.
The foregoing duties/authority would also meet the criteria for determining Mr.
Quiachon’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 Youth Detention Counselor
Supervisor with the City Department of Human Services under job class specification
5B24, Mr. Quiachon 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 Youth Detention Counselor Supervisor with the City of
Philadelphia Department of Human Services under job class specification 5B24,
Raymond Quiachon 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