HomeMy WebLinkAbout85-574 LynnMr. Joseph T. Lynn
1308 Capouse Avenue
Scranton, PA 18509
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
August 20, 1985
ADVICE OF COUNSEL
Re: Claims Settlement Agent, Public Employee
Dear Mr. Lynn:
85 -574
This responds to your financial disclosure appeal of July 18, 1985, which
has been processed as a request for advice.
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 Statement
of Financial Interests.
Facts: You are currently employed by the Pennsylvania Department of Public
Welfare, Bureau of Claims Settlement, as a Claims Settlement Agent I. On July
18, 1985, you filed a financial disclosure appeal which indicated that you
should not be required to file a Statement of Financial Interests as required
by the State Ethics Act, in that your responsibilities did not meet the
requirements of the term public employee as defined in the Act and that the
filing requirement is an invasion of privacy.
In light of the fact that the Commission has dealt with this issue on
several prior occasions, this appeal is being treated as a request for advice.
The Commission has reviewed both your current job description and the job
specifications (0741) for the position that you hold. Both have been
incorporated herein by reference.
In your position you are involved in various responsibilities and
duties. Your job description and classification specification indicates that
an agent in your position operates, in part, as follows:
Mr. Joseph T. Lynn
August 20, 1985
Page 2
You are involved in the criminal prosecution of welfare cases. Cases for
prosecution investigation require the collection of additional evidence for
trial, evaluation of evidence, a comprehensive review of the case record,
interaction with caseworkers for comments on socio /economic and emotional
problem of client which might affect prosecution; witnesses are alerted and
testimony discussed. If prosecution is deemed advisable, the agent must
prepare a rough copy of the prosecution complaint, affidavit of probahle
cause, compute the claim and request any needed evidence from Field
Operations. The case is returned to the agent for filing of the complaint
with the appropriate magistrate. Prior to filing, the complaint is submitted
to the District Attorney for approval. The agent has responsibility of
presenting the case and questioning witnesses.
You are also involved in reimbursement activities of the Department of
Public Welfare.
Additionally, interviews are conducted with attorneys, employers, law
enforcement agencies, financial institutions, etc. to assemble information on
establishing claims. Department of Welfare rules and regulations must often
be interpreted. Compromise settlement of claims are handled by agents which
require title searching, property appraising, interviewing and home contacts.
Agents make recommendations for acceptance or rejection. Other assignments
requiring the same work are Referrals for legal action, Judicial Sales, such
as Sheriff Sales, Tax Sales, Estate Sales, etc.
In addition to the basic job duties described above, an agent is required
to perform varied duties in connection with reimbursement and restitution
claims, to complete special projects as assigned, to prepare designated forms
and reports, to collect, handle and transmit money accurately, to compute
claims, to attend workshops and conferences, to maintain good public relations
with collateral contacts, public officials and the public and to follow
established rules, regulations and procedures.
Your classification specification indicates 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
Mr. Joseph T. Lynn
August 20, 1985
Page 3
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: The State Ethics Commission has now reviewed the exact issue
presented on several occasions. See Silver, 85 -012; Phillips_, 82 -008. The
Commonwealth Court of Pennsylvania has also upheld the position of the
Commission regarding this issue and has specifically and explicitly dealt with
and dismissed the issue you now present. See Phillips v. State Ethics
Commission, Commw. Ct. , 470 A.2d 659, (1984).
We note that a large portion of your argument questions the
above - referenced regulation which excludes for example welfare case workers
and others generally from the definition of "public employee." You assert
that these workers have as much, if not more, responsibility to make
recommendations than you have as a Claim Settlement Agent (CSA). You state,
therefore, that you should be excluded from this definition, as well. We need
take little effort to address this argument: Even if the general exclusion of
case workers is incorrect, that error would not, in and of itself, justify a
similar exclusion for you or the class of CSA workers, in general.
This position was articulated and upheld by the court in Phillips,
supra.
The Ethics Act provides 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
tir. Joseph T. Lynn
August 20, 1985
Page 4
(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.
There can be no doubt that your duties, as set forth, indicate that you
maintain a significant position regarding numerous individuals payment and /or
receipt of welfare payments. You also play an integral role in ensuring
compliance with orders and directives. You prepare cases for prosecution and
present such cases at the magistrate level. You decide what evidence is
necessary in this respect. You are involved in the compromise of settlement
claims and you recommend the acceptance or rejection thereof. You collect,
handle, and transmit money. 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, and by this Commission. Silver, 85 -012; Phillips, 82 -008.
You do not contest these job functions and indeed you set forth almost
verbatim in your appeal these functions. As such, there is no reason to
deviate from this Commission's and the Court's prior pronouncements.
Finally, with regard to whether the filing requirement is an invasion of
privacy, this issue has been addressed and dismissed by the Supreme and
Commonwealth Courts of Pennsylvania. Pennsylvania State Association of
Township Supervisors v. Thornburgh, Commw. Ct. , 405 A.2d 614, (1979)
Affirmed At PA , 437 A.2d 1, (1981).
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 Statement of Financial Interests. This statement must be filed within
thirty (30) days of this Advice. Please file the white copy with this
Commission in order to ensure compliance with this Advice. File the yellow
copy with your agency.
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.
Mr. Joseph T. Lynn
August 20, 1985
Page 5
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
Enclosure
Sincerely,
John J.
no
Gener• Counsel