HomeMy WebLinkAbout85-563 KellyMailing Address
State Ethics Commission
308 Finance Building
P. O. Box 11470
Harrisburg, Pa. 17108 -1470
July 25, 1985
ADVICE OF COUNSEL
Thomas Patrick Kelly, Counsel 85 -563
The Philadelphia Housing Authority
2012 -18 Chestnut Street
Philadelphia, PA 19103
Re: Philadelphia Housing Authority Inspectors, Public Employee
Dear Mr. Kelly:
This responds to your letter of July 2, 1985,in which you requested
advice from the State Ethics Commission.
Issue: Whether certain employees of the Philadelphia Housing Authority are to
be considered "public employees" as that term is defined in the Ethics Act,
and therefore, required to file a Statement of Financial Interests.
Facts: The Philadelphia Housing Authority, hereinafter the Authority, employs
various building /housing inspectors. Generally, inspectors act in one of two
departments.
Some Authority inspectors are assigned to the Section 8 Department.
These inspectors conduct on -site reviews of privately -owned rental housing.
If the inspection is favorable, the property is eligible to participate in a
housing assistance payments program under which the property owners may
receive rent subsidies to house low income tenants. Annual or special
re- inspections of participating properties are also conducted. An inspector's
approval is required for subsidy payments.
Other Authority inspectors review construction work performed by private
contractors under contract with the Authority. Inspections are conducted
on -site. An inspector's approval is required for contract payments.
As counsel to the Authority, you request official advice as to whether
these inspectors are public employees who must file a Statement of Financial
Interests.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. Thomas Patrick Kelly
July 25, 1985
Page 2
Discussion: As set forth above, the question to be answered here is clear.
Specifically, are the Building and Housing inspectors serving with the
Authority to be considered "public employees" as defined in the State Ethics
Act and the regulations of the Commission.
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
mi nimus 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 Commission further provide that the term public
employee includes an individual:
(B) 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
Mr. Thomas Patrick Kelly
July 25, 1985
Page 3
( -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:
( -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 employe9s.
(D) 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.
51 Pa. Code §1.1
Mr. Thomas Patrick Kelly
July 25, 1985
Page 4
We must review the question you present under these provisions of the
statute and the regulations of the Commission in light of the duties and
obligations as described in your request for advice. 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. , 470 A.2d
659 (1984); and Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982).
Also, in reviewing your question, we note that 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 narrow. 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 the job functions of
the inspectors as set forth in your request, we are led to the conclusion that
these inspectors are "public employees" subject to the financial reporting and
disclosure requirements of the State Ethics Act.
It is clear that as building and housing inspectors, these employees have
the ability to recommend official action with respect to subparagraph 4 and 5
within the definition of "public employee" as set forth in the Ethics Act, 65
P.S. 402. Specifically, these employees inspect various facilities in order
to determine if they are eligible for government subsidies or if they have
complied with contractural provisions and are thereby entitled to payments.
The regulations of the Commission clearly set forth that housing and building
inspectors are generally considered public employees. 51 Pa. Code §1.1
(iii)(D).; see also Wilkinson, 83 -548. These activities also fall within the
definition of public employee as contained in the regulations of the
Commission 51 Pa. Code i (iv) (v). These inspectors perform their duties in
the field without on sight inspection and have the power, and duty to make
recommendations which will result in individuals eligibility for participation
in governmental programs. These duties are an inherent and recurring part of
this position. Under these circumstances, we must conclude that these
inspectors are "public employees" as that term is defined in the State Ethics
Act. See Forney v. State Ethics Commission, 56 Commw. 539, 425 A.2d 66
(1981).
Conclusion: Based upon the above discussion, we conclude that the building
and housing inspectors of the Philadelphia Housing Authority are to be
considered "public employees." Accordingly, they must file a Statement of
Financial Interests for each year in which they hold the position outlined
above and for the year following their termination of this service.
Mr. Thomas Patrick Kelly
July 25, 1985
Page 5
If they 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 the Authority Personnel Office. The green
copy may be retained by the employees for their 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
Si ncerely,
ohn J. • tino
Gene . Counsel