HomeMy WebLinkAbout84-577 GordonMr. Hubert Gordon
33 Campbelltown Road
Palmyra, PA 17078
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
June 25, 1984
ADVICE OF COUNSEL
RE: DPW; Legislative Liaison; Public Employee
Dear Mr. Gordon:
84 -577
This responds to your letter of May 4, 1984, in which you requested
Advice from the State Ethics Commission.
Issue: You ask whether in your capacity as an employee with the Department of
Public Welfare (DPW), you should be considered to have been a public employee
subject to the financial reporting and disclosure requirements of the State
Ethics Act.
You have provided us with several documents: an appeal form regarding
your Statement of Financial Interests dated May 4, 1984; a copy of a letter
dated May 22, 1984 from John Lylo, Director; and portions of a letter from you
to John Lylo, dated May 7, 1984. We have also received and reviewed the
classification /specification for "Position No. 4320 State Legislative Liaison,
D.P.W." and a copy of a job description relative to your office and position
as an Administrative Officer V. In issuing this advice we have taken into
consideration all of these items.
Also in this advice we will assume that you have terminated your
employment with the Commonwealth as of July 1, 1983, but that during your
tenure with the DPW you were responsible for and did perform those duties as
described in the classification /specification and job description outlined
above. This classification /specification and your job description indicate
that while employed by the DPW you were responsible for performing the
following functions which are described in brief below:
1. The state legislative liaison position is described as highly
responsible administrative liaison work involving the analysis and advocation
of legislation before the State General Assembly which might affect the
Department of Public Welfare.
2. An employee in this class is responsible for the coordination and
direction of the Department's interactions with the State General Assembly.
Mr. Hubert Gordon
June 25, 1984
Page 2 _
3. The incumbent in this position i v.:kops legislative initiatives based
upon Departmental policy and prove`.des day-ts- ay l iaison with the legislature
regarding legislative proposals .which mi get affect the DPW.
4. An important aspect or this work i s deecriued as the consultant role
with the Secretary and the Executive Deputy Secretery in development of
Departmental policy based upon the current l egi sl a i `e c l i m a t e . In this role,
this individual 's work is reviewed by the Secretary of t;ie berartment for
program results and achievement of established objectives.
5. You advised the Secretary on State legislative issues and
participated in the development of the Department's legislative initiatives
regarding policy decisions formulated upon such advice.
6. In this capacity, you had the responsibility for making
recommendations for the improvement and /or refinement of the Department's role
and procedural base in the legislative process.
7. You were also responsible and served as departmental representative
on the legislative task force, meeting regularly with members of the Health
and Welare Committee to insure that the Department's position in State
legislature was effectively advocated and for analyzing program office
response to various State legislative proposals and preparing position briefs
on legislative requirements to meet Departmental objectives and to develop a
Departmental position on proposed State legislation.
Discussion: The main provisions of the Ethics Act which we need to review in
order to determine whether or not you are a "public employee" subject to the
requirements of the State Ethics Act are the definitions of "public employee"
as contained in the Ethics Act and in our regulations. These provisions of
the Ethics Act and the regulations of the Ethics Commission are reprinted
below for easy reference:
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)
2)
contracting or procurement;
administering or monitoring grants or
subsidi es;
planning or zoning;
inspecting, licensng, regulating or auditing
any person; or
any other activity where the official action
has an economic impact of greater than a de
minimus nature on the interests of any person.
Mr. Hubert Gordon
June 25, 1984
Page 3
"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.
Section 1.1. Definitions.
Public employee - --
(i) The term includes any individual:
(A) who is employed by the. Commonwealth or a
political subdivision and who is responsible for
taking or recommending official action of a
nonministerial nature with regard to:
(I) contracting or procurement;
(II) administering or monitoring grants or
subsidi es;
(III) planning or zoning;
(IV) inspecting, licensing, regulating, or
auditing any person; or
(V) any other activity where the official
action has greater than a de minimis economic
impact; and
(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.
Mr. Hubert Gordon
June 25, 1984
Page 4
(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.
(ii) 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.
(iii) Persons in the positions listed below are
generally considered public employees.
(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.
Mr. Hubert Gordon
June 25, 1984
Page 5 _
(C) attorneys engaged in representing
the department, agency, or other governmental
bodies before the public.
(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.
(E) Court administrators, assistants for
fiscal affairs, and deputies for the minor
judiciary.
(F) School business managers and principals.
(iv) Persons in the positions listed below are
generally not considered public employes.
(A) City clerks, other clerical staff, road
masters, secretaries, police officers, welfare case
workers, maintenance workers, construction workers,
detectives, equipment operators, and recreation
di rectors.
(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 1.1.
We must also review the requirements of the State Ethics Act in Section
4(a) as follows:
(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).
Mr. Hubert Gordon
June 25, 1984
Page 6 .
As can be seen from these provisions, i; you were considered a "public
employee" while employed at DPW you would :e required by Section 4(a) of the
Ethics Act to file a Statement, of Financial interests for each year in which
you were employed by the Commonwealth and for the year following your
departure from such employment.
We tuen first to the consideration of whether or not you are a "public
employee" as that term is defined in the State Ethics Act as set forth above.
We must review the question in light of your duties and obligations as
described ie your request for advice, the classification /specifications
applicable to your position, and your job description. This inquiry
necessarily focuses on the job itself and not on'the individual incumbent in
the positite the variable functions of that position or the manner in which a
particular individual occupying the position may carry out those functions.
See McClure, 83 -001; Phillips, 82 -008, affirmed on appeal, - Pa. Cmwlth.
470 A.2d 6b9 (1984); and Mummau v. Ranck, 531 Fed. Supp. 402 Pa. 19BZJT
Also, it reviewing the question of whether you must be considered a
"public employee ", the Commonwealth Court in its ruling in Phillips, supra, at
page 661, directed us to construe the coverage of the Ethics Act broadly,
rather than narrowly. This ruling also directs that exclusions from the Act's
coverage should, conversely, be narrowly construed. Based upon this directive
and reviewing the definition of "public employee" in the statute and the
regulations in light of your job functions and the information which you have
provided and which is available to us on an objective basis, we are led to the
conclusion that you are a "public employee" subject to the financial reporting
and disclosure requirements of the Ethics Act. Further discussion and our
analysis follows.
From our review of the data available to us we conclude that you were
responsible for recommending official action of a non - ministerial nature -- an
action in which the person excercises his own judgment as to the desirability
of the action taken -- with respect to legislation which would impact upon
administering or monitoring grants or subsidies (the main responsibility of
the DPW) or with respect to regulating persons subject to and requiring DPW
assistance. In addition, your recommendations with respect to legislation, in
general, which were made directly to the Secretary in many instances where you
were assisting and developing or promoting the Department's position with
respect to legislation is certainly an activity where the official action in
which you are engaged (legislative liaison) had a greater than deminimus
economic impact on the interests of any person. This is particularly true
where you be assisting in and recommending development of Departmental
policy with respect to legislation which would result in differing
requirements, additional subsidies, reductions in benefits, etc. with respect
to recipients of welfare benefits, grants, etc.
Mr. Hubert Gordon
June 25, 1984
Page 7
Also, in light of our regulations, with respect to your responsibility
for recommending official action regarding the administering or monitoring of
grants or subsidies, you must be deemed to be one of the people who was
responsible for preparing or supervising the preparation of final
recommendations or making the final technical recommendation to the Secretary
for the formulation of the Department's position with respect to legislation.
See 51 Pa. Code 1.1, definition of public employee (i)(B)(II)(a)(2), (3), and
(
Also, our regulations indicate that persons in the positions where they
are reporting directly to the agency head or a governing body who may be
described as executive or special directors or assistants should also be
"generally considered public employees ". See 51 Pa. Code 1.1., Definition of
public employee ", (iii)(A). It is clear from your position description and
classification /specification that you worked directly with the head of this
agency in an important and sensitive area in order to effect overall
Departmental goals with respect to legislation. Your responsibility was other
than ministerial in this regard and as such, we must conclude that you are to
be considered a "public employee" during your tenure with the DPW.
Conclusion: During your tenure with the Department of Public Welfare you were
to be considered a "public employee" while you served as a State Legislative
Liaison and an Administrative Officer V within the DPW. Accordingly, for each
year in which you held that position and for the year following your
termination from that position you are responsible for filing a Statement of
Financial Interests as set forth in Section 4 of the State Ethics Act. This
Statement of Financial Interests should be filed within 15 days of service of
this advice. Please file the original copy with our office to insure
compliance of this advice, forward the yellow copy to the Department of Public
Welfare, Office of Personnel, 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.
Mr. Hubert Gordon
June 25, 1984
Page 8
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 full 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.
SSC /na
cc: John Lylo, Director, Office of •Personnel Services, DPW
Walter W. Cohen, Secretary, DPW
Sinc-, ely,
Sandra S. Chris ianson
General Counsel