HomeMy WebLinkAbout10-603 Brady
ADVICE OF COUNSEL
July 27, 2010
Kathleen Brady
Philadelphia Department of Human Services
Staff Development Support Center
th
1515 Arch Street, 8 Floor
Philadelphia, PA 19102
10-603
Dear Ms. Brady:
This responds to your letters dated May 3, 2010, and June 30, 2010, by which
you requested an advisory from the Pennsylvania State Ethics Commission.
Issue:
Whether, as a Social Service Program Supervisor with the City of
Philadelphia Department of Human Services, you would be considered a “public
employee” subject to the Public Official and Employee Ethics Act (the “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 seek a determination as to whether, in your capacity as a Social
Service Program Supervisor with the City of Philadelphia (“City”) Department of Human
Services, you would be considered a “public employee” subject to the Ethics Act and
the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code
§ 11.1. You specifically question whether you are required to file Statements of
Financial Interests.
You work in the Staff Development Division of the Department of Human
Services. You state that there are two Social Service Program Analysts (“SSPAs”) in
your unit. You state that you and the SSPAs handle the logistics of trainings scheduled
by the Pennsylvania Child Welfare Training Program (“PA CWTP”) and other trainings
which the Department of Human Services decides to offer. You state that such logistics
include notifying staff of training dates, registering staff, and tracking the completion of
trainings by staff.
You have submitted a copy of a “Position Request Justification” (hereinafter
referred to as “the Position Justification”) for your current position with the Department
of Human Services, which document is incorporated herein by reference. You state that
the Position Justification became the description for the position of Social Service
Program Supervisor in the Staff Development Division of the Department of Human
Services once the Position Justification was approved by the City Central Personnel
office.
Brady, 10-603
July 27, 2010
Page 2
Per the Position Justification, the duties and responsibilities of a Social Service
Program Supervisor in the Staff Development Division of the Department of Human
Services include the following:
?
Conducting needs analysis and research relative to new training and staff
development programs for the Department of Human Services and provider staff,
and conducting periodic needs assessment surveys to determine need for and
scope of programs at all employee levels;
?
Developing training programs through professional and technical staff input,
research and evaluation of relevant and topical material, and the development of
curriculum design;
?
Representing Philadelphia at statewide PA CWTP meetings and in other
committee work and state forums;
?
Facilitating management and staff development through the use of organizational
development techniques such as action research, process consultation, team
building, and problem solving;
?
Developing a formal comprehensive training plan for CYD staff based on a
training needs analysis and needs assessment;
?
Planning, developing, and recommending training policies and procedures in
conformance with PA CWTP requirements;
?
Ensuring certification of new supervisors;
?
Monitoring maintenance of employee training history in database and for
personnel records;
?
Supervising SSPAs and clerical personnel; and
?
Performing all Department of Human Services-required supervisory tasks related
to Staff Development Support Center SSPAs’ work, including approving time
sheets and leave requests, delegating and conferencing with SSPAs on tasks
assigned to Staff Development Support Center and PA CWTP projects, and
completing Department of Human Services Annual Performance Reports.
Position Request Justification, at 1-2.
You assert that you are not responsible for taking or recommending official action
of a non-ministerial nature that would bring you within the definition of “public employee”
as set forth in the Ethics Act. You further assert that you do not perform your
responsibilities in the field without onsite supervision and that the two SSPAs in your
unit do not perform their responsibilities in the field without onsite supervision.
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:
Brady, 10-603
July 27, 2010
Page 3
(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.
(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
Brady, 10-603
July 27, 2010
Page 4
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
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. Cmwlth. 1984); Eiben, Opinion
04-002;Shienvold, Opinion 04-001; Shearer, Opinion 03-011. The Commonwealth Court
of Pennsylvania has specifically considered and approved this Commission’s objective
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July 27, 2010
Page 5
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 your duties and responsibilities, the necessary conclusion is that in your position as a
Social Service Program Supervisor with the City Department of Human Services, you
are a "public employee" subject to the Ethics Act, including the financial reporting and
disclosure requirements of the Ethics Act.
It is clear that in your capacity as a Social Service Program Supervisor, you have
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 your status as a public
employee:
?
Supervising SSPAs and clerical personnel; and
?
Performing all Department of Human Services-required supervisory tasks related
to Staff Development Support Center SSPAs’ work, including approving time
sheets and leave requests and completing Department of Human Services
Annual Performance Reports.
The foregoing duties/authority would also meet the criteria for determining your
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 your position as a Social Service Program
Supervisor with the City Department of Human Services, you are 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:
In your capacity as a Social Service Program Supervisor with the City
of Philadelphia Department of Human Services, you are 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 Pennsylvania 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. Accordingly, you must file a Statement of Financial Interests
each year in which you hold the aforesaid position and the year following termination of
such service.
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.
Brady, 10-603
July 27, 2010
Page 6
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