HomeMy WebLinkAbout10-516 Teti
ADVICE OF COUNSEL
January 12, 2010
Ralph J. Teti, Esquire
Willig, Williams & Davidson
Twenty-Fourth Floor
1845 Walnut Street
Philadelphia, PA 19103
10-516
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 Prosecution Assistant Supervisor
with the City of Philadelphia District Attorney’s Office under job class specification 2M90
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 William Herling (“Mr. Herling”) 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. Herling is employed as a Prosecution Assistant Supervisor with the City of
Philadelphia (“City”) District Attorney’s Office (hereinafter also referred to as “the
Office”) under job class specification 2M90. You have submitted a copy of job class
specification 2M90 for Mr. Herling’s position as a Prosecution Assistant Supervisor,
which document is incorporated herein by reference.
Job class specification 2M90 provides, in pertinent part, as follows:
GENERAL DEFINITION
This is administrative and technical supervisory work within a functional
prosecution area of the District Attorney’s Office. An employee in this
class plans, assigns, coordinates, and reviews the activities of a staff
performing specialized administrative and technical support functions for
attorneys charged with the prosecution of individuals accused of violating
the criminal and/or civil code. Work encompasses supervising a staff
engaged in gathering information, and/or interviewing plaintiffs and
defendants and/or making legal recommendations. Work involves
Teti/Herling, 10-516
January 12, 2010
Page 2
determining training and developmental needs, reviewing and modifying
the procedures of the unit, and resolving problems within assigned
functional area. Work requires interaction with members of the criminal
justice system or other court related systems including attorneys, judges,
detectives, police officers, etc. Work is performed under the general
supervision of an administrative and technical superior.
------------------------------------------------------
TYPICAL EXAMPLES OF WORK (ILLUSTRATIVE ONLY)
Plans, directs, coordinates, evaluates and reviews the activities of a group
of workers engaged in performing a variety of staff or advisory
assistance to prosecuting attorneys; establishes work priorities;
orients and trains employees in functional principles, practices,
procedures, and appropriate rules and regulations; provides
technical guidance to staff; reviews and modifies methodology,
procedures, and processes.
Directs the activities of a staff engaged in the review of trial files and
official documents, reports and records to ascertain charges, facts
and circumstances of arrest, defendant’s criminal record, behavior
of defendant, or other pertinent information to be found in both civil
and criminal cases; evaluates findings and facts of case for
applicability in specialty area; advises prosecution attorneys of
findings and conclusions; presents petitions to the court; may
suggest areas for questioning in court; maintains records of court
decisions and dispositions.
May review arrest and criminal records to determine eligibility for diversion
of case to an appropriate social agency; discusses legal
procedures, reasons for continuances, and facts of case with
witnesses; discusses facts of case, their availability, their opinion of
the case and the reliability of witnesses with enforcement officials.
Monitors changes in legislation which may affect the unit; maintains
statistics and records of the cases processed by the unit; prepares
special reports as requested.
Performs related work as required.
. . . .
Job Class Specification 2M90, at 1-2.
Mr. Herling works in the preliminary hearings unit in the Office, where he is
supervised by a superior within the Office. You state that Mr. Herling is not the
supervisor of the highest level in the Office where he is assigned or of the division in
which he works.
You state that Mr. Herling’s duties include locating and analyzing criminal
records, recommending release or detention of persons arrested by the Police
Department, and reviewing records and recommending whether someone should or
should not be paroled. You state that Mr. Herling has no authority to decide who does
or does not get released. You state that Mr. Herling has not supervised anyone since
2004 and has no role in the budget, expenditures, or procurements of the Office.
You assert that Mr. Herling does not have the authority to make final decisions
or to forward or stop recommendations from being sent to final decision makers and that
Teti/Herling, 10-516
January 12, 2010
Page 3
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 Prosecution Assistant 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. Herling, in his position as a
Prosecution Assistant Supervisor with the City District Attorney’s Office under job class
specification 2M90, 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":
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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.
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January 12, 2010
Page 5
(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
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. Herling’s duties and responsibilities, the necessary conclusion is that in his position
as a Prosecution Assistant Supervisor with the City District Attorney’s Office under job
class specification 2M90, Mr. Herling 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 Prosecution Assistant Supervisor under job
class specification 2M90, Mr. Herling has the ability to take or recommend official action
of a nonministerial nature with respect to subparagraph (5) within the definition of “public
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January 12, 2010
Page 6
employee” as set forth in the Ethics Act, 65 Pa.C.S. § 1102. The following duties and
authority establish Mr. Herling’s status as a public employee:
?
Supervising a staff engaged in gathering information, and/or interviewing
plaintiffs and defendants and/or making legal recommendations;
?
Determining eligibility for diversion of case(s) to an appropriate social agency;
?
Recommending release or detention of persons arrested by the Police
Department; and
?
Recommending whether someone should or should not be paroled.
The foregoing duties/authority would also meet the criteria for determining Mr.
Herling’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. Herling 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. Herling’s duties/authority
with respect to “resolving problems” within his assigned functional area; and (3) the
nature and extent of Mr. Herling’s duties/authority with respect to presenting petitions to
the court. Depending upon facts that have not been submitted, such duties/authority
could afford additional bases for Mr. Herling’s status as a public employee subject to the
Ethics Act.
Based upon the above, you are advised that in his position as a Prosecution
Assistant Supervisor with the City District Attorney’s Office under job class specification
2M90, Mr. Herling 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 Prosecution Assistant Supervisor with the City of Philadelphia
District Attorney’s Office under job class specification 2M90, William Herling 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
Teti/Herling, 10-516
January 12, 2010
Page 7
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