HomeMy WebLinkAbout11-551 Martin
ADVICE OF COUNSEL
September 29, 2011
Linda M. Martin, Esquire
Willig, Williams & Davidson
Twenty-Fourth Floor
1845 Walnut Street
Philadelphia, PA 19103
11-551
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
Health Services Social Worker II with the City’s Department of Public Health under job
class specification 5A62 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 Frank Valentin (“Mr. Valentin”) 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. Valentin is employed as a Health Services Social Worker II with the City’s
Department of Public Health under job class specification 5A62. You have submitted a
copy of job class specification 5A62 for Mr. Valentin’s position as a Health Services
Social Worker II, which document is incorporated herein by reference.
Job class specification 5A62 provides, in pertinent part, as follows:
GENERAL DEFINITION
This is social work at the full performance level within the assigned
specialty. An employee in this class performs a variety of counseling,
referral and/or placement assignments related to services to the mentally
retarded or services to adults and the aging or to clients of a health center
which includes client orientation with the facility and services such as
family planning, pre-natal care and HIV/AIDS as appropriate. Employees
in this class provide advisory and interpretive services to defined client
populations, agency officials and superiors within the specialized areas.
Martin/Valentin, 11-551
September 29, 2011
Page 2
Work includes performing casework activities, assessing client and family
needs, developing an appropriate service plan, developing and
implementing group activities, providing on-going counseling and referral
services, and/or determining the appropriate placement actions. Work in
this class differs from the next lower level in that employees exercise
relatively independent judgment requiring a more significant degree of
understanding of professional principles and techniques and departmental
standards and rules. Contact with individuals, their families,
representatives of professional and community groups, and the general
public is a significant aspect of 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 approved for this class.)
?
The positions must perform full performance social work within the
area of specialization.
?
The positions must be located within the Health Department.
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TYPICAL EXAMPLES OF WORK (ILLUSTRATIVE ONLY)
. . . .
General
?
Interviews individual and family members within City’s family
medical care program; evaluates social, medical, emotional, and
financial history of individuals; develops an individual and family
profile; orients family to program’s purpose, services, and planning
process; discusses with program’s medical and nursing staff the
status and problems of individuals; counsels patients in
understanding, accepting and following medical recommendations;
refers individuals to a variety of agencies.
?
Performs pregnancy and family planning counseling; evaluates
social, medical, emotional and financial impact of pregnancy on
patient; counsels patients on alternative pregnancy options;
provides family planning information; discusses advantages and
disadvantages of various contraceptive methods; counsels patients
concerned with infertility and sexual problems.
?
Screens referrals to in-home service programs offered by older
adult centers; visits homebound individuals to determine
capabilities, characteristics of household, and attitudes; determines
needs of client and problems present; develops a service plan for
the individual; encourages individuals to participate in activities
offered at centers.
?
Interviews volunteers for HIV antibody test on one-on-one basis to
assess the reason that test is being requested; determines if patient
is of high risk for HIV infection; provides information concerning the
nature of the test, the prognosis for those who test positive, the
potential psychological impact of a positive or negative test result
and societal problems which may be encountered upon receipt of a
positive test result which may include the areas of housing,
employment and insurability; educates all patients in risk reduction
techniques; reaffirms the desire to be tested at the completion of
the pre-test counseling.
?
Provides HIV antibody test results to persons tested; explains the
significance of both negative and positive test results; assists
Martin/Valentin, 11-551
September 29, 2011
Page 3
seropositive individuals in developing a plan for reducing the
chances of developing AIDS or transmitting the disease to others;
assists seronegative individuals in developing a plan to remain
uninfected; provides intensive counseling, if deemed necessary, to
persons designated as seropositive; schedules additional
counseling and information sessions for individuals if required;
assesses needs of seropositive individuals and develops
appropriate care plan; coordinates care of seropositive patients
through linkage to appropriate agencies.
. . . .
All Specialties
?
Attends periodic staff and personal conferences; confers with
superior on difficult problems; prepares reports and
correspondence; keeps records of all assigned cases.
?
Performs related work as required.
. . . .
Job Class Specification 5A62, at 1-3.
You state that Mr. Valentin is assigned to the AIDS Activities Coordinating Office
(“AACO”) of the City Department of Public Health. AACO provides services to persons
with or affected by HIV/AIDS and their families. The services provided by AACO
include medical referrals and case management, counseling, education, housing
referrals, emergency financial aid referrals, public transportation information and tokens,
and the like.
Mr. Valentin is responsible for obtaining information from clients seeking
HIV/AIDS-related services. Depending upon the services sought by a client, Mr.
Valentin reviews with the client AACO’s pre-established list (“Vendor List”) of City
selected and approved vendors and provides the client with information about the type
and scope of service provided by each vendor as set forth on the Vendor List. After the
client chooses the vendor which the client believes will be responsive to the client’s
needs, Mr. Valentin prepares the required paperwork for the client’s referral.
You state that Mr. Valentin had no input as to which vendors AACO will use and
that Mr. Valentin cannot deviate from the Vendor List or add a vendor to or remove a
vendor from the Vendor List. You state that Mr. Valentin is prohibited from
recommending a vendor to a client or discussing the quality of a vendor’s service or
program and that he makes no recommendations whatsoever to clients.
When a client is referred to AACO by a doctor or hospital personnel, Mr. Valentin
assists the client with coordinating the medical care ordered by the doctor or hospital
personnel, which may include scheduling a doctor appointment, calling a prescription
into a pharmacy, providing public transportation information, or providing the client with
one or two tokens to go to a medical appointment.
You assert that Mr. Valentin does not have the authority to make final decisions
with regard to AACO’s clients and vendors or to forward or stop recommendations from
being sent to final decision makers. You assert that an individual employed in the
position of Health Services Social Worker II with AACO: (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 City Department of Public Health or AACO; and (3)
does not make recommendations or take such actions that would affect other
departments, divisions or commissions within AACO or the City.
Martin/Valentin, 11-551
September 29, 2011
Page 4
Based upon the above, you ask whether Mr. Valentin, in his position as a Health
Services Social Worker II with the City Department of Public Health under job class
specification 5A62, 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":
(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.
Martin/Valentin, 11-551
September 29, 2011
Page 5
(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.
(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.
Martin/Valentin, 11-551
September 29, 2011
Page 6
(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
test and has directed that coverage under the Ethics Act be construed broadly and that
exclusions under the Ethics Act be construed narrowly. See, Quaglia v. State Ethics
Commission, 986 A.2d 974 (Pa. Cmwlth. 2010), amended by, 2010 Pa. Commw. LEXIS
8 (Pa. Cmwlth. January 5, 2010), allocatur denied, 4 A.3d 1056 (Pa. 2010); 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. Valentin’s duties and responsibilities, the necessary conclusion is that in his
position as a Health Services Social Worker II with the City Department of Public Health
under job class specification 5A62, Mr. Valentin is a "public employee" subject to the
financial reporting and disclosure requirements of the Ethics Act.
It is clear that in his capacity as a Health Services Social Worker II under job
class specification 5A62, Mr. Valentin 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. Mr. Valentin’s
duties and authority to refer individuals to a variety of agencies, provide on-going
referral services, and/or determine the appropriate placement actions establish Mr.
Valentin’s status as a public employee. The foregoing duties/authority would also meet
the criteria for determining Mr. Valentin’s status as a public employee under the
Martin/Valentin, 11-551
September 29, 2011
Page 7
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
Worker II with the City Department of Public Health under job class specification 5A62,
Mr. Valentin 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 Worker II with the City of Philadelphia
Department of Public Health under job class specification 5A62, Frank Valentin 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