HomeMy WebLinkAbout85-551 StrockMr. Maynard E. Strock
1701 Sherwood Road
New Cumberland, PA 17070
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
June 13, 1985
ADVICE OF COUNSEL
85 -551
Re: Bureau of Correction, Prison Inspector, Public Employee
Dear Strock:
This responds to your letter of April 30, 1985, in which you requested
advice from the State Ethics Commission.
Issue: You ask whether in your capacity as a Prison Inspector with the
Governors Bureau of Corrections, hereinafter, the Bureau, you are to be
considered a "public employee" as that term is defined in the Ethics Act, and
whether you are therefore, required to file a Statement of Financial Interests
pursuant to the Ethics Act.
Facts: You currently serve as a prison inspector in the Governors Office,
Bureau of Corrections. On April 4, 1985 you filed a Financial Disclosure
appeal form with the Bureau. Generally, you asserted in that appeal that you
should not be required to file a Statement of Financial Interests, in that, it
is a violation of your fifth amendment privilege under the United States
Constitution. On April 11, 1985 you were informed by the director of the
personnel management division of the Bureau that the Bureau as well as the
Governor's Office of Administration had reviewed your appeal and had
determined that you were required to file the Statement of Financial Interests
as required under the State Ethics Act. You were also informed that you had
the right to appeal that decision to the Ethics Commission. This appeal
followed.
As a prison inspector within the Bureau, you inspect state and county
correctional facilities for compliance with the applicable law and
regulations. The inspection process involves physically checking all areas of
the prison such as sanitation, food services, building maintenance, records
and the custody and treatment of prisoners. In addition, the inspection
process includes interviewing staff and inmates.
Mr. Maynard E. Strock
June 13, 1985
Page 2
You also prepare comprehensive written reports of inspections and
investigations. You conduct Research and keep abreast of changing laws and
regulations pertaining to penal affairs.
As part of your duties you investigate fires, escapes, inmate complaints,
suicides and other incidents involving prisons.
In addition thereto, you discuss new standards and operating procedures
with Wardens and other prison officials and you discuss the results of the
inspection process and assist the prison officials with information and advise
on prison affairs.
Your job description, which we have reviewed and incorporated herein by
reference, indicates that you must be prepared to discuss all the above with
Judges, County Commissioners, Prison Board members and other prison officials
and that you must be on call in the event of an emergency in any of the state
institutions that would require assistance.
Discussion: As set forth above, the question to be answered here is clear.
Specifically, are you, in your capacity as a prison inspector serving with the
Bureau to be considered a "public employee" as that term is defined in the
State Ethics Act.
The State Ethics Act provides as follows:
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.
Mr. Maynard E. Strock
June 13, 1985
Page 3
In addition thereto, the regulations of the Commission further provide
in part, that the term public employee includes any individual:
(8) who meets the criteria of either subclause
(I) or (II):
(I) The individual is:
( -a -) a person who normally
performs his responsibility in the field
without on -site supervision;
( -b -) the immediate supervisor of a
person who normally performs his
responsibility in the field without
on -site supervision; or
( -c -) the supervisor of any highest
level field office.
(II) The individual is a person:
( -a -) who:
( -1 -) has the authority to
make final decisions;
( -2 -) has the authority to
forward or stop recommendations
from being sent to the person or
body with the authority to make
final decisions;
( -3 -) prepares or
supervises the preparation of
final recommendations; or
( -4 -) makes the final
technical recommendations; and
( -b -) whose recommendations or
actions:
Mr. Maynard E. Strock
June 13, 1985
Page 4
( -1 -) are an inherent and
recurring part of his position;
and
( -2 -) affect organizations
other than his own organization.
(iii) Persons in the positions listed below are
generally considered public employees.
(0) Solicitors, engineers, managers, and
secretary- treasurers acting as managers, police
chiefs, chief clerks, chief purchasing agents,
grant and contract managers, housing and building
inspectors, sewer enforcement officers, and zoning
officers in all governmental bodies. See 51 Pa.
Code §1.1. (emphasis added).
We must review the question you present under these provisions of the
statute and the regulations of the Commission in light of your duties and
obligations as described in your appeal, the classification specifications,
and the job description under which you operate. Our inquiry necessarily
focuses on the job itself and not on the individual incumbent in the position,
the variable functions of the position, or the manner in which a particular
individual occupying a position may carry out those functions. See McClure,
83 -001; Phillips, 82 -008, affirmed on appeal, Pa. Cmwlth. , 4/U A.Zd
659 (1984); and Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982).
Also, in reviewing your question, the Commonwealth Court in its ruling in
Phillips, supra, at page 661, directs us to construe coverage of the Ethics
Act broadly, rather than narrowly, and conversely, directs that exclusions
from the Ethics Act should be narrowly construed. Based upon this directive
and reviewing the definition of "public employee" in the statute and the
regulations and opinions of this Commission, in light of your job functions
and the information available to us, we are led to the conclusion that while
you serve in this capacity, you are a "public employee" subject to the
financial reporting and disclosure requirements of the State Ethics Act.
Further detail on our analysis follows.
Mr. Maynard E. Strock
June 13, 1985
Page 5
It is clear that in your capacity as a prison inspector (much like a
housing or building inspector), you have the ability to recommend official
action with respect to subparagraph (4) within the definition of "public
employee" as set forth in the Ethics Act, 65 P.S. 402. Specifically, you
function to inspect the conditions and general operation of state and county
correctional facilities. This function is of a non ministerial nature and
also has an economic impact of greater than a de minimus nature on the
interest of individuals. Your work is generally performed in the field
without on site supervision. §1.1 (I) (b). These activities fall within the
definition of public employee as contained in the regulations of the
Commission 51 Pa. Code §1.1. Under these circumstances and given your duties
and responsibilities as outlined above, we must conclude that you are a
"public employee" as that term is defined in the State Ethics Act.
As a public employee, you are required to file a Statement of Financial
Interests pursuant to Section 4(a) of the Act which provides that:
Section 4. Statement of financial interests required to be filed.
(a) Each public employee employed by the Commonwealth
shall file a statement of financial interests for the
preceding calendar year with the department, agency or
bureau in which he is employed no later than May 1 of each
year that he holds such a position and of the year after
he leaves such a position. Any other public employee
shall file a statement of financial interests with the
governing authority of the political subdivision by which
he is employed no later than May 1 of each year that he
holds such a position and of the year after he leaves such
a position. 65 P.S. 404(a).
In response to your question as to what penalities exist for a violation of
this provision, the Act provides that:
Section 9. Penalties.
(b) Any person who violates the provisions of Section 4
(regarding Statement of Financial Interests filing) is
guilty of a misdemeanor and shall be fined not more than
$1,000 or imprisoned for not more than one year, or be
both fined and imprisoned. 65 P.S. 409(b).
Finally, with relation to your constitutional question, we direct your
attention to the cases holding that statutory provisions regarding that income
be reported or records be made available to governmental agencies are not
violative of the fifth amendment privilege. See United States v. Shimek, 445
F. Supp. 884, (M.D. PA 1978); Hartman v. Switzer 376 F. Supp 486, (D.C. PA
1974) .
Mr. Maynard E. Strock
June 13, 1985
Page 6
Conclusion: Based upon the above discussion, we conclude that you are to be
considered a "public employee" in your capacity as a prison inspector with the
Bureau of Corrections. Accordingly, you must file a Statement of Financial
Interests for each year in which you hold the position outlined above and for
the year following your termination of this service.
If you have not already done so, a Statement of Finanical Interests must
be filed within 15 days of this Advice. This Statement of Financial Interests
would report information of the prior calendar year. Please file the original
of such a Statement with this Commission to insure compliance with this
Advice, provide the yellow copy to your Personnel Office and retain the green
copy for your records.
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 /sfb
Sinc
John J ontino
Gee° al Counsel