HomeMy WebLinkAbout10-518 Teti
ADVICE OF COUNSEL
January 12, 2010
Ralph J. Teti, Esquire
Willig, Williams & Davidson
Twenty-Fourth Floor
1845 Walnut Street
Philadelphia, PA 19103
10-518
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 Health Services Social Work
Supervisor with the City of Philadelphia Department of Public Health under job class
specification 5A63 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 Gerry Keys (“Mr. Keys”) 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. Keys is employed as a Health Services Social Work Supervisor with the City
of Philadelphia (“City”) Department of Public Health (hereinafter also referred to as “the
Department”) under job class specification 5A63. You have submitted a copy of job
class specification 5A63 for Mr. Keys’ position as a Health Services Social Work
Supervisor, which document is incorporated herein by reference.
Job class specification 5A63 provides, in pertinent part, as follows:
GENERAL DEFINITION
This is first supervisory level social work within an assigned health
services specialty. Employees in this class supervise the activities of, and
provide consultation, training, and direction to social workers providing
counseling, referral and placement services to clients in the City’s medical
care or mental retardation programs.
Work includes orienting workers regarding appropriate laws and
regulations governing case management for specific clientele, and
Teti/Keys, 10-518
January 12, 2010
Page 2
assisting workers in developing resources to facilitate the remediation of
socio-medical problems. Contact with health program clients,
representatives of private and public health agencies and community and
professional groups is significant to the work. Work is performed under
the direction of a functional superior.
. . . .
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TYPICAL EXAMPLES OF WORK (ILLUSTRATIVE ONLY)
GENERAL
Assigns, reviews, and evaluates the activities of social workers providing
services to clients in the City’s medical care programs; supervises
workers in such functional areas as family medical care, family
planning, health services to the homeless, and AIDS; trains workers
in counseling and referral for family planning, substance abuse,
geriatric problems or sexual abuse; provides orientation to workers
in medical terminology and availability of medical services; trains
workers to read and interpret medical charts of patients.
MENTAL RETARDATION
Assigns, reviews, and evaluates the activities of social workers engaged in
performing case management activities for clients with mental
retardation; assigns cases to social workers and monitors
compliance with court-mandated limits on case load size; orients
staff in rules, county and state regulations and guidelines, and
federal court mandates associated with assigned duties; trains staff
in proper procedures for leading interdisciplinary team and
Individual Support Plan (ISP) meetings; ensures that staff attends
mandated training as required.
Reviews ISP’s prepared by staff within mandated time limits to ensure
appropriateness, accuracy and completeness; reviews monitoring
forms completed by staff and monitors follow-up of issues of
concern to ensure timely and appropriate action; periodically
attends team meetings and monitorings conducted by staff and
provides guidance and support as required; holds monthly unit and
individual supervisory meetings with staff; ensures that staff
responds to all issues cited in court-ordered case reviews and
monitoring reports in a complete, appropriate, and timely manner;
assures follow-up of unresolved case management monitoring
issues directly with the provider agency as appropriate; refers
issues to supervisor and other administrative staff as needed.
Participates in the selection of case management staff; provides
information required for the preparation of reports; attends
mandated training.
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
Teti/Keys, 10-518
January 12, 2010
Page 3
functions; consults with private and public welfare or health agency
officials on established procedures and problem areas;
recommends establishing or modifying current methods and
policies.
Screens cases initially to determine level of risk to individual, individual’s
eligibility for program, and services required; reviews cases for
socio-economic, medical, and other information; meets with social
workers to discuss status of cases, problems encountered, basis
for action, and alternative solutions; reviews and discusses
progress, problems, selection and use of resources; provides
supportive liaison services and assistance when required;
evaluates workers’ performance.
Trains social workers in social work techniques and methodologies;
orients workers to 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 5A63, at 1-3.
You state that Mr. Keys supervises 16 Social Workers employed in eight Health
Centers. As an immediate supervisor of Social Workers, Mr. Keys may recommend
discipline. You state that the final decisions regarding discipline are made by Mr. Keys’
immediate supervisor, the Director of Medical Services for Ambulatory Services, who
reports to the Commissioner of the Department.
You state that Mr. Keys has no decision making authority over spending in the
Department or over the Department’s budget.
You assert that Mr. Keys does not have the authority to make final decisions or to
forward or stop recommendations from being sent to final decision makers. You further
assert that an individual employed in the position of Health Services Social Work
Supervisor: (1) is not responsible for taking or recommending official action of a non-
ministerial nature that would bring such individual within the definition of “public
employee” as set forth in the Ethics Act; (2) is not the supervisor of the highest level at
the department/site where he is assigned or of the division in which such individual
works; and (3) does not make recommendations or take such actions that would affect
other departments, divisions or commissions within the City.
Based upon the above, you ask whether Mr. Keys, in his position as a Health
Services Social Work Supervisor with the City Department of Public Health under job
class specification 5A63, 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/Keys, 10-518
January 12, 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/Keys, 10-518
January 12, 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.
Teti/Keys, 10-518
January 12, 2010
Page 6
(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. Keys’ duties and responsibilities, the necessary conclusion is that in his position as
a Health Services Social Work Supervisor with the City Department of Public Health
under job class specification 5A63, Mr. Keys 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 Health Services Social Work Supervisor under
job class specification 5A63, Mr. Keys 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. Keys’ status as a public employee:
?
Supervising and providing direction to Social Workers engaged in providing
counseling, referral and placement services to clients in the City’s medical care
or mental retardation programs;
?
Screening cases initially to determine the individual’s eligibility for the program,
and the services required;
?
Assigning and reviewing the activities of Social Workers providing services to
clients and performing casework functions;
?
Making recommendations for establishing or modifying current methods and
policies; and
?
Evaluating worker performance, recommending discipline, and taking corrective
action where necessary.
Teti/Keys, 10-518
January 12, 2010
Page 7
The foregoing duties/authority would also meet the criteria for determining Mr.
Keys’ 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 Health Services Social Work
Supervisor with the City Department of Public Health under job class specification 5A63,
Mr. Keys 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 Health Services Social Work Supervisor with the City of
Philadelphia Department of Public Health under job class specification 5A63, Gerry
Keys 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