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HomeMy WebLinkAbout11-549 Martin ADVICE OF COUNSEL September 27, 2011 Linda M. Martin, Esquire Willig, Williams & Davidson Twenty-Fourth Floor 1845 Walnut Street Philadelphia, PA 19103 11-549 Dear Ms. Martin: This responds to your letters dated August 9, 2011, and August 15, 2011, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether an individual employed by the City of Philadelphia (“City”) as a Social Work Services Manager 2 with the City’s Prisons System (“PPS”) under job class specification 5A07 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 have been authorized by Naim Ali (“Mr. Ali”) 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. Ali is employed by the City as a Social Work Services Manager 2 with the PPS under job class specification 5A07. You have submitted a copy of job class specification 5A07 for Mr. Ali’s position as a Social Work Services Manager 2, which document is incorporated herein by reference. Job class specification 5A07 provides, in pertinent part, as follows: GENERAL DEFINITION This is human services case management work at the full performance level. An employee in this class performs a variety of counseling, referral, placement and/or adoptive functions related to services for children and youth, adults and the aging, the homeless, or services to incarcerated individuals. Work includes performing case management activities, assessing client and family needs, developing an appropriate service and/or treatment plan, developing group activities, providing on-going counseling and referral services and/or determining appropriate placement actions. Work in this class differs from the next lower level in that employees typically are assigned the more complex Martin/Ali, 11-549 September 27, 2011 Page 2 cases requiring them to perform social service functions of an advanced nature involving more independent judgment and a significant understanding and application of professional principles and departmental standards. Contact with individuals, their families, representatives of various private and public welfare agencies, representatives of professional and community groups, and the general public is of major significance to the work. Work is performed under the general supervision of a technical superior. ALLOCATING FACTORS: (The following conditions must be met for a position to be allocated to this class.) ? The position must be responsible for full performance level counseling, referral, placement and/or adoptive functions related to services for children and youth, adults and the aging, the homeless, or services to incarcerated individuals. ? The position must be located in the Department of Human Services, Office of Services to Homeless and Adults or the Philadelphia Prisons. ------------------------------------------------------------------------- TYPICAL EXAMPLES OF WORK (ILLUSTRATIVE ONLY) . . . . Correctional Positions Conducts initial needs assessment and elicits information to determine client’s socio-economic, family, medical, employment, educational, emotional and criminal justice background and history; reviews commitment and summary forms to ascertain accuracy and resolve problems; orients individuals with institution’s policies and procedures, program alternatives, and assigned activities; advises on, and recommends most appropriate rehabilitation and treatment plan; reviews and discusses client’s cases to identify accomplishments, deficiencies, and problems; evaluates individual’s readiness to separate from program; develops recommendations for after-care plan; participates in inmate disciplinary hearings. Reviews background information for individuals admitted to City’s youth detention facility; orients individual and parents to rules and procedures and explains the judicial process; evaluates family relationships, interaction problems, and individual’s needs, interests, extent of motivation and patterns of responsibility; provides on-going individual or group counseling to meet needs and resolve problems during stay in facility. Counsels individual in dealing with and overcoming emotional problems; clarifies recommendations with appropriate treatment and rehabilitation personnel; contacts other social service agencies to aid inmate’s family; prepares appropriate reports, forms, and documentation. . . . . All Positions Attends periodic staff and personal conferences; confers with superior on difficult problems; prepares reports and correspondence; keeps records of all assigned cases. Martin/Ali, 11-549 September 27, 2011 Page 3 Performs related work as required. . . . . Job Class Specification 5A07, at 1-3. You note that “social workers” within the PPS Social Services Division perform duties including, inter alia, making referrals to in-house and external programs and assisting in accessing reentry resources. It is not clear from your submission whether the aforesaid reference to “social workers” is to some other job class within the PPS or includes Mr. Ali as a “Social Work Services Manager 2.” You state that Mr. Ali is assigned to the PPS Detention Center, where he performs intake work with male inmates. Mr. Ali works from guidelines provided by the PPS to assess an inmate’s education level, employment status, family situation, mental health, drug and/or alcohol use/dependency, and ability to understand the reason for his incarceration. You state that based upon the information obtained from an inmate, Mr. Ali makes the appropriate referrals within the PPS to assist the inmate in adjusting to his confinement. You state that Mr. Ali explains to an inmate the various programs available within the PPS and makes referrals to these programs when appropriate. You state that Mr. Ali is responsible for providing social services to inmates. Mr. Ali meets with an inmate to address his current needs and problems and assist him in meeting his goals for parole and release. You state that Mr. Ali monitors an inmate’s progress within the system and keeps records of the inmate’s activities and discipline record where applicable. Mr. Ali submits his records and report to the Parole Board. You state that Mr. Ali’s reports must be approved by his supervisor before they are submitted to the Parole Board. You assert that Mr. Ali 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 Social Work Services Manager 2: (1) 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; (2) is not a supervisor at any level of the PPS or the PPS Detention Center; 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. Ali, in his position as a Social Work Services Manager 2 with the PPS under job class specification 5A07 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 Martin/Ali, 11-549 September 27, 2011 Page 4 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. (I) The individual's recommendations or actions affect organizations other than his own organization. Martin/Ali, 11-549 September 27, 2011 Page 5 (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. In applying the definition of “public employee” and the related regulatory criteria to the submitted facts as to the duties of a Social Work Services Manager 2 with the PPS, you are advised that most of the duties set forth in job class specification 5A07 would not bring Mr. Ali within the definition of the term “public employee” as set forth in the Ethics Act. However, the authority to make referrals could establish status as a public employee subject to the Ethics Act depending upon the nature and extent of such authority. The submitted facts are unclear as to whether Mr. Ali’s authority to make referrals would be limited to making referrals to programs established and operated by the PPS or would include making referrals to external programs. Martin/Ali, 11-549 September 27, 2011 Page 6 Based upon the submitted facts, you are advised that Mr. Ali, in his position as a Social Work Services Manager 2 with the PPS under job class specification 5A07, would not be considered a “public employee” subject to the Ethics Act and therefore would not be required to file Statements of Financial Interests pursuant to the Ethics Act if his authority to make referrals would be limited to making referrals to programs established and operated by the PPS. However, if Mr. Ali would have the authority to make referrals to external programs, then Mr. Ali, in his position as a Social Work Services Manager 2 with the PPS under job class specification 5A07, would be considered a “public employee” subject to the Ethics Act, and he would be required to file Statements of Financial Interests pursuant to the Ethics Act. Conclusion: In his capacity as a Social Work Services Manager 2 with the City of Philadelphia Prisons System (“PPS”) under job class specification 5A07, Naim Ali (“Mr. Ali”) would not be considered a “public employee” subject to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., and therefore would not be required to file Statements of Financial Interests pursuant to the Ethics Act if his authority to make referrals would be limited to making referrals to programs established and operated by the PPS. However, if Mr. Ali would have the authority to make referrals to external programs, then Mr. Ali, in his position as a Social Work Services Manager 2 with the PPS under job class specification 5A07, would be considered a “public employee” subject to the Ethics Act, and he would be required to file 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