HomeMy WebLinkAbout11-550 Martin
ADVICE OF COUNSEL
September 29, 2011
Linda M. Martin, Esquire
Willig, Williams & Davidson
Twenty-Fourth Floor
1845 Walnut Street
Philadelphia, PA 19103
11-550
Dear Ms. Martin:
This responds to your letter dated August 9, 2011, and your two letters dated
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 Department of Human Services 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 Pamela Robinson (“Ms. Robinson”) 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. Robinson is employed as a Social Work Services Manager 2 with the City’s
Department of Human Services under job class specification 5A07. You have
submitted a copy of job class specification 5A07 for Ms. Robinson’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
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September 29, 2011
Page 2
appropriate placement actions. Work in this class differs from the next
lower level in that employees typically are assigned the more complex
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.)
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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.
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The position must be located in the Department of Human
Services, Office of Services to Homeless and Adults or the
Philadelphia Prisons.
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TYPICAL EXAMPLES OF WORK (ILLUSTRATIVE ONLY)
. . . .
Children and Adult Services Positions
Performs a variety of counseling, referral, placement and/or
adoptive services for assigned cases within respective program; conducts
interviews with individuals requiring agency services including requests for
temporary shelter, placement of children or unusual and difficult social
service cases; may make home visits to families of emotionally disturbed
and/or problem children; elicits data to ascertain nature and extent of
complaint, severity of problems, potential danger to individual, and/or facts
and circumstances relevant to requests; reviews case record for client’s
and family’s profile, socio-economic history, previous treatment and
service experiences, and/or special problems and family history, financial
and social problems, individual perspectives and perceptions, attitudes
and behavior and other factors; observes interactions of client, family
members and peers; makes immediate decision as to eligibility for
departmental services; obtains and evaluates social information
concerning families with unusual or chronic social service problems;
contacts professionals and members of community to discuss history of
case and service needs.
Develops service plan to provide a variety of social services
referrals and to define goals and objective; determines need for social,
behavioral, medical and/or psychological services; provides individual or
family counseling as needed; makes referrals to a variety of support
agencies; monitors individual and family progress, cooperation, and
acceptance of services.
Plans for the appropriate placement of individuals in a temporary or
permanent care program, facility or institution; interviews prospective
applicants, clients and providers; orients participants in program’s goals
and objectives, roles and responsibilities of various parties, and legal
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September 29, 2011
Page 3
ramifications; arranges for any medical or psychiatric treatment prior to
placement.
Monitors and evaluates activities of agencies contracted to provide
a variety of social services; visits and inspects direct placement to
evaluate progress, and/or problems of client; prepares and discusses
written evaluations of agency; finds alternative placement for client when
warranted; recommends services provided to client by agency be
terminated.
Initiates court action when appropriate and prepares necessary
work.
All Positions
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 5A07, at 1-3.
You state that Ms. Robinson is assigned to the Multidisciplinary Team of the
Children Protective Services unit. You state that Ms. Robinson has advised you that job
class specification 5A07 is not directly applicable to her in light of her assignment to the
Multidisciplinary Team.
You state that in her role as a member of the Multidisciplinary Team, Ms.
Robinson is responsible for investigating reports of child assault, physical injury or
death. You state that when Ms. Robinson investigates child assault and physical injury
reports, she is required to perform a child safety assessment, the scope and depth of
which is governed by regulations and “tools” issued by the Commonwealth of
Pennsylvania. During an investigation, Ms. Robinson visits and assesses the child’s
home and environment and interviews parents, neighbors, medical professionals, police
officers, and school personnel. At the conclusion of an investigation, Ms. Robinson
reports her observations and findings to her supervisor and a City Solicitor, both of
whom then decide what course of action for the child should be recommended to the
court of common pleas (“Court”). You state that Ms. Robinson may be asked to testify
at Court proceedings about her observations and findings and that the Court ultimately
determines what, if any, action is needed to protect the child, such as, for example,
removing the child from the home and placing the child in foster care.
You state that in an emergency situation, after consulting with and obtaining the
approval of her supervisor and a City Solicitor, Ms. Robinson may remove a child from
the home before the case is presented to the Court for a determination. You state that
the foster care placement is selected by the administration of the City Department of
Human Services and not by Ms. Robinson. The City Department of Human Services,
through the City Solicitor, must then justify to the Court why the child was removed from
the home, and the Court may order the child returned to the home if the Court disagrees
with the assessment of the City Department of Human Services.
You assert that Ms. Robinson does not have the authority to make final decisions
regarding the child or family investigated by her. You 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
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September 29, 2011
Page 4
supervisor at any level within the City Department of Humans Services, the Child
Protective Services unit, or the Multidisciplinary Team; and (3) does not make
recommendations or take such actions that would affect other departments, divisions or
commissions within the City. You further assert that Ms. Robinson does not perform her
responsibility in the field without supervision.
Based upon the above, you ask whether Ms. Robinson, in her position as a
Social Work Services Manager 2 with the City Department of Human Services 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
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.
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September 29, 2011
Page 5
(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
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.
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September 29, 2011
Page 6
(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
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 Ms. Robinson’s duties and responsibilities, the necessary conclusion is that in her
position as a Social Work Services Manager 2 with the City Department of Human
Services under job class specification 5A07, Ms. Robinson is a "public employee" subject
to the financial reporting and disclosure requirements of the Ethics Act.
It is clear that in her capacity as a Social Work Services Manager 2 under job
class specification 5A07, Ms. Robinson 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 Ms. Robinson’s status as a public employee:
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September 29, 2011
Page 7
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Making immediate decision as to eligibility for departmental services;
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Making referrals to a variety of support agencies; and
?
Monitoring and evaluating activities of agencies contracted to provide a variety of
social services, preparing and discussing written evaluations of agency, finding
alternative placement of client when warranted, and recommending that services
provided to client by agency be terminated.
The foregoing duties/authority would also meet the criteria for determining Ms.
Robinson’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).
The submitted facts are unclear as to the nature and extent of Ms. Robinson’s
duties/authority with respect to: (1) developing a service plan to provide a variety of
social services referrals; (2) determining the need for social, behavioral, medical, and/or
psychological services; (3) planning for the appropriate placement of individuals in a
temporary or permanent care program, facility or institution; (4) arranging for any
medical or psychiatric treatment prior to placement; and (5) initiating court action when
appropriate. Depending upon facts that have not been submitted, such duties/authority
could afford additional bases for Ms. Robinson’s status as a public employee subject to
the Ethics Act.
Based upon the above, you are advised that in her position as a Social Work
Services Manager 2 with the City Department of Human Services under job class
specification 5A07, Ms. Robinson 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 Social Work Services Manager 2 with the City of Philadelphia
Department of Human Services under job class specification 5A07, Pamela Robinson 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
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September 29, 2011
Page 8
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