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HomeMy WebLinkAbout10-519 Teti ADVICE OF COUNSEL January 13, 2010 Ralph J. Teti, Esquire Willig, Williams & Davidson Twenty-Fourth Floor 1845 Walnut Street Philadelphia, PA 19103 10-519 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 Forensic Laboratory Supervisor with the City of Philadelphia Police Department under job class specification 3H40 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 Nicole Martin (“Ms. Martin”) 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. Martin is employed as a Forensic Laboratory Supervisor with the City of Philadelphia (“City”) Police Department under job class specification 3H40. You have submitted a copy of job class specification 3H40 for Ms. Martin’s position as a Forensic Laboratory Supervisor, which document is incorporated herein by reference. Job class specification 3H40 provides, in pertinent part, as follows: GENERAL DEFINITION This is supervisory forensic laboratory work in a municipal law enforcement environment. Employees in this class assign and monitor the work of subordinate forensic scientists, technicians and clerical support staff engaged in the analysis and chain of custody of confiscated substances, organic or inorganic physical evidence, or DNA (deoxyribonucleic acid) in support of criminal investigations. Work includes planning and researching new or adapting existing forensic methodology, analyzing and interpreting data, developing and directing quality control programs, and preparing technical reports. Contact with law enforcement and court officials and providing expert testimony in court Teti/Martin, 10-519 January 13, 2010 Page 2 are significant aspects of the work. Work is performed under the general direction of a laboratory manager. . . . . ------------------------------------------------------ TYPICAL EXAMPLES OF WORK (ILLUSTRATIVE ONLY) All Specialties Plans, assigns and reviews the work of forensic scientists and technicians in conducting a wide variety of analytical procedures, research projects and analyses; evaluates and selects approaches to problems; determines methods to be used in the operation of specialized instruments in analysis; participates in planning laboratory programs on the basis of specialized knowledge of problems and methods and probable value of results; establishes and directs quality assurance methods to validate analytical data. Trains new laboratory personnel or supervises their training performed by forensic scientists in quality control procedures and newly developed or revised methodology and the operation of new analytical testing equipment; prepares and reviews written reports and monthly and annual summaries; may prepare recommendations for annual operating budget; prepares statistical and technical reports on specialized subjects; reviews laboratory reports and data to ensure that laboratory procedures have been followed. Coordinates and directs internal and external audits, proficiency tests, competency tests and data and report review. Researches journals and other published material to identify new techniques of analysis; supervises or engages in the development of new techniques or adaptation of existing methods to specific problems of analysis in the work place. Maintains liaisons with, and provides training to other units within the department and outside agencies concerning the acceptance and analysis of evidence, and reporting results, and the significance of the results. Testifies in court as to methodology and results of analysis; provides expert testimony on general or hypothetical questions and explains technical methods and procedures to 1 court personnel. Supervises and participates in gathering physical, biological and chemical evidence at crime scenes. Performs related work as required. Chemistry Specialty Plans, assigns and reviews the work of subordinate chemists and technicians engaged in analyzing confiscated materials for controlled substances, precursors and by-product of synthesis. Teti/Martin, 10-519 January 13, 2010 Page 3 Supervises clerical personnel who accept evidence 24 hours a day, type and distribute reports, maintain accurate records, and perform other related duties. Trace Evidence Specialty Plans, assigns and reviews the work of subordinate chemists and technicians engaged in analyzing organic, biological, and inorganic evidence in support of criminal investigations. DNA Specialty Plans, assigns and reviews the work of subordinate chemists and technicians engaged in analyzing DNA evidence in support of criminal investigations; halts testing if necessary. . . . . Job Class Specification 3H40, at 1-2. You state that Ms. Martin supervises a staff of twelve to twenty individuals and is responsible for reviewing timesheets and vacation requests of the employees under her supervision. Ms. Martin ensures that laboratory work is completed in a timely fashion and occasionally testifies regarding the forensic laboratory’s conclusions. You state that Ms. Martin has nothing to do with City Police Department funds or budgets. You state that Ms. Martin ensures that the City Police Department contracts regarding yearly maintenance and repair of laboratory equipment but has nothing to do with the terms or costs of such contracts. You further state that Ms. Martin orders supplies for her division by using a pre-approved list of suppliers and that any items she selects must be approved by her immediate supervisor. Ms. Martin is supervised by a Laboratory Manager. You state that Ms. Martin is not the supervisor of the highest level in the department where she is assigned or of the division in which she works. You assert that Ms. Martin 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 further assert that an individual employed in the position of Forensic Laboratory 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 Ms. Martin, in her position as a Forensic Laboratory Supervisor with the City Police Department under job class specification 3H40, 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/Martin, 10-519 January 13, 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/Martin, 10-519 January 13, 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 Teti/Martin, 10-519 January 13, 2010 Page 6 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 Ms. Martin’s duties and responsibilities, the necessary conclusion is that in her position as a Forensic Laboratory Supervisor with the City Police Department under job class specification 3H40, Ms. Martin 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 Forensic Laboratory Supervisor under job class specification 3H40, Ms. Martin has the ability to take or recommend official action of a nonministerial nature with respect to subparagraphs (4) and (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. Martin’s status as a public employee: ? Performing supervisory forensic laboratory work in a municipal law enforcement environment; ? Supervising and participating in gathering physical, biological and chemical evidence at crime scenes; ? Supervising and reviewing/monitoring the work of subordinates, including forensic scientists, technicians, and clerical support staff engaged in the analysis and chain of custody of confiscated substances, organic or inorganic physical evidence, or DNA in support of criminal investigations; ? Reviewing timesheets of the employees under her supervision; ? Preparing recommendations for the annual operating budget; ? Ordering supplies for her division from a pre-approved list of suppliers, subject to approval by her immediate supervisor; and ? Coordinating and directing external audits. The foregoing duties/authority would also meet the criteria for determining Ms. Martin’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). Teti/Martin, 10-519 January 13, 2010 Page 7 The submitted facts are unclear as to the nature and extent of Ms. Martin’s duties/authority with respect to: (1) ensuring that the Police Department enters into contracts regarding yearly maintenance and repair of laboratory equipment; and (2) coordinating and directing proficiency tests and competency tests. Depending upon facts that have not been submitted, such duties/authority could afford additional bases for Ms. Martin’s status as a public employee subject to the Ethics Act. Based upon the above, you are advised that in her position as a Forensic Laboratory Supervisor with the City Police Department under job class specification 3H40, Ms. Martin 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 Forensic Laboratory Supervisor with the City of Philadelphia Police Department under job class specification 3H40, Nicole Martin 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