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HomeMy WebLinkAbout85-521 SilverMr. Samuel Silver 2020 Addison Street Philadelphia, PA 19146 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 March 4, 1985 ADVICE OF COUNSEL Re: Claims Settlement Agent; Public Employee Dear Mr. Silver: 85 -521 This responds to your appeal of February 12, 1985, which has been processed as a request for an advice under the State Ethics Act. Issue: Whether a Claims Settlement Agent I is a public employee within the purview of the State Ethics Act and, therefore, required to file a financial interest statement. Facts: You have refused to file a financial interest statement pursuant to the provisions of the State Ethics Act, 65 P.S. §404(a). You have indicated that your duties and responsibilities are in the nature of ministerial special projects and as such you believe that you are not a "public employee" as that term has been defined in the Act and in the regulations of the Ethics Commission. We have reviewed both your current job description and the job specifications for the position that you hold. Both have been incorporated herein by reference. You serve as a child support agent in the office of program development for the Bureau of Claim Settlement. In this - position you process support cases, enforce support orders, initiate action to obtain orders against legally responsible relatives and you represent the Commonwealth in formal and informal Court hearings. In addition to the foregoing, you perform the following: 1. Negotiates at pre- hearing conference with attorneys and defendants to secure equitable and sufficient support payments. Mr. Samuel Silver March 4, 1985 Page 2 2. Represents the Commonwealth with the Family Court Fiscal Unit on all cases where monies are being held due to encumbrance of funds. Reviews, analyzes and determines whether monies should be released to the Court, dependent beneficiary or the Department. Request court records, compute monies and authorize release of funds. 3. Refers information pertaining to possible fraud involved with public assistance cases to County Board of Assistance Office and for appropriate Claim Settlement processing. 4. Prepares, assembles and presents informative data to the Family Courts, Domestic Relations Offices, County and District Offices, relative to child support on behalf of the Department. 5. Interprets to clients, attorneys, public officials and other individuals, the law and policies regarding child support. The position specification (No. 0741) for a Claim Settlement Agent I specifically provides that: This is specialized office or field work in the settlement of reimbursement and restitution claims in the income maintenance program. An employee in this class is responsible for the collection, review and analysis of information to locate, encumber, and obtain financial resources for the settlement of claims against present or former public assistance clients. Employees function as office or field agents with joint responsibility for all claim activity in one geographical area. Through extensive correspondence and field contacts employees assemble information to be used in legal proceedings as well as for settlements made administratively. Work is not normally performed in accordance with prescribed procedures, but requires discretion and judgment in conducting investigations and making recommendations and preliminary decisions. Work is reviewed by a higher level claim settlement agent prior to final action or disposition through conferences and reports. Discussion: Initially, it must be noted that the State Ethics Commission and the Commonwealth Court of Pennsylvania have specifically addressed the issue of whether a Claims Settement Agent I, is a public employee within the purview of the Ethics Act thereby required to file a financial interest statement. Opinion, 82 -008 Phillips; Phillips v. State Ethics Commission, Pa. Cmwlth. , 4%0 A.2d 659, (1984). Mr. Samuel Silver March 4, 1985 Page 3 The Ethics Act provides in part that: Section 2. 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 minimus nature on the interests of any person. "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. 65 P.S. 402. The regulations of the Ethics Commission further provide that individuals are considered public employees where they perform their duties in the f i e l d without on -site supervision, or where they have the authority to forward or stop recommendations from being processed, and where such recommendations are an inherent and recurring part of their position, and where such activities affect organizations other than the employees own. See 51 Pa. Code §1.1 Your attempt to narrowly define your employment function so as to effectively remove yourself from the definition of "public employee' must fail as our inquiry must focus on the job itself and not on the individual and variable functions of the particular employee occupying the position. See Mummau v. Ranck, 531 F. Supp. 402 (E.D. Pa. 1982) citing Branti v. Finkle, 445 U.S. 507 at 518, 100 S. Ct. 1287 at 1294, 63 L. Ed 2d 574 (1980)777e must proceed to analyze your job function objectively' and if under this analysis your CSA I duties are outside the definition of "public employee" - you will not be required to comply with the Ethics Act. Our analysis, however, as detailed below, leads us to the opposite conclusion. Specifically, you are empowered to take the necessary steps to obtain court orders against individuals, enforce support orders as well as negotiate to secure equitable Ind sufficient suppor;, payments. You represent the Commonwealth with the ':=ami ly Court Fiscal Unit regarding the encumbrance of funds. You determine whether monies should be released to the Courts or to individuals you authorize the release of such funds. Mr. Samuel Silver March 4, 1985 Page 4 While the foregoing represent only a part of your duties, as outlined in the aforementioned documents, it is clear that you are recommending or taking actions that have an economic impact of greater than a de minimus nature on the interests of individuals. See 65 P.S. §402. These functions are, not as you indicate, "special projects" but are a continuing and recurring part of your position. There can be no doubt that your duties, as set forth, indicate that you maintain a significant position regarding numerous individual's payment and /or receipt of support payments. You also play an integral role in ensuring compliance with orders and directives. As such, and in light of the foregoing, you must be considered a public employee within the purview of the Ethics Act. As noted, this conclusion has been specifically addressed and upheld by the Commonwealth Court of Pennsylvania. See Phillips v. State Ethics Commission, Supra. Conclusion: For the reasons set forth above you are considered a "public employee" within the purview of the State Ethics Act and you must, therefore, file a financial interest statement. This statement must be filed within +h;n+v /'2111 d of this %ivice. Pursuant to Section 7(9)(ii), this 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, providing the requestor 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. JJC /sfd cc: Walter W. Cohen, Secretary John Lylo, Personnel Director Sincerely, Johnntino General Counsel