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HomeMy WebLinkAbout89-562 MyckaSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 25, 1989 Mr. R. Damian Mycka 89 -562 R.D. #4, Box 361 - C Punxsutawney, PA 15767 Re: Field Auditor III, DPW, Public Employee, FIS Dear Mr. Mycka: The State Ethics Commission has received your financial disclosure appeal form on June 30, 1989 which will be treated as a request for an advice of counsel. Issue: You ask whether in your capacity as a Field Auditor III with the Department of Public Welfare, hereinafter, the DPW, you are to be considered a "public employee" as that term is defined in the Ethics Act, and therefore, whether you are required to file a Statement of Financial Interests pursuant to the Ethics Act. Facts: You question whether your activities and functions fall within the purview of the definition of "public employee" as that phrase is defined in the State Ethics Act and the regulations of this Commission. In order to review the question presented,. we will briefly outline the duties and responsibilities associated with your position as contained in your job description and the classification specifications for this position. Your duties and responsibilities, as set forth in these two documents are incorporated herein by reference. The classification/ specification for a Field Auditor 3 describes your position as follows: "This is complex or supervisory auditing work in examining the books and financial records or governmental agencies or private businesses. An employe in this class performs complex audits or is in charge of a designated district or a regularly assigned group of auditors. Work involves directing the of other auditors either as individuals or teams and assigning and reviewing the work. Public contact is involved in making audits of private firms and in explaining legal provisions to taxpayers. Work is Mr. R. Damian Mycka Page 2 performed with considerable independence under the direction of and administrative superior and review is limited to occasional conferences and the periodic analysis of written reports and forms." As to your specific job description the position of Field Auditor 3 is described as follows: "The incumbent in this position is assigned to the Division of Nursing Home Rates, Bureau of Long Term Care Programs in the Office of Medical Assistance and serves as the lead worker and person in charge of the more complex examinations and assigned group of staff. This is advanced professional work and the incumbent performs analytical, developmental and valuative functions in the examination, evaluation and reporting of private Long Term Care providers in a geographic area of the Commonwealth, various out -of -state providers Home Office Operations, and /or desk analytical and valuative functions, as required, to ensure that providers participating in the Medical Assistance program and providing care and services to Medical Assistance recipients, are appropriately reimbursed in conformity with the Departmental cost related reimbursement policy and regulations. Work is performed with considerable independence under the direction of an administrative superior utilizing established examination programs and routines and includes either directing the review of work performed by other providers financial statements, and applicable agreements, contracts, and regulations, to determine the proper accounting for allowability of costs and subsequent reimbursement for those costs. The incumbent frequently serves as "auditor - in - charge" of specific examinations." In your appeal you assert that your are not an employee of the Commonwealth during 1988 and therefore any request for information for that period is considered as an invasion of your personal privacy. You also argue that the filing of such forms was not a specific condition of your terms of employment. Discussion: As set forth above, the question to be answered here is clear. Specifically, are you, in your capacity as a Field Auditor III serving with the DPW to be considered a "public employee." The State Ethics Act defines that term as follows: Mr. R. Damian Mycka Page 3 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. 65 P.S. 5402. "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. S402. The regulations of the State Ethics Commission similarly define the term public employee as above and also set forth that the term includes any 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 ( -c -) the supervisor of any highest level field office. Mt. R. Damian Mycka 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 final technical recommendations; and ( -b -) actions: whose recommendations or ( -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. R. Damian Mycka Page 5 (C) Staff 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 employees. (A) City clerks, other clerical staff, road masters, secretaries, police officers, welfare case workers, maintenance workers, construction workers, detectives, equipment operators, and recreation directors. (B) Law clerks, court criers, court reporters, probation officers, security guards, and writ servers. (C) School teachers and clerk of the schools. 51 Pa. Code S1.1. 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 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 Mr. R. Damian Mycka Page 6 particular individual occupying a position may carry out those functions. See McClure, Opinion 83 -001; Phillips, Opinion 82- 008, affirmed on appeal, 79 Pa. Cmwlth. 491, 470 A.2d 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, you are a "public employee" subject to the financial reporting and disclosure requirements of the State Ethics Act. Further detail on our analysis follows. It is clear that in your capacity as a Field Auditor III, 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. 5402. Specifically, you serve as the lead worker and person in charge of complex examinations and a group of staff assigned to those examinations. In additions, you work with considerable independence and either direct or review the work performed by lower level staff and also serve as the auditor in charge of some examinations. 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, you are a "public employee" as that term is defined in the State Ethics Act. Although you argue that you were not a Commonwealth employee in 1988 and therefore you should not have to file Financial Interest information for that year, Regulations 4.1(a) and 5.2 of the State Ethics Commission provide: 54.1. Public employees. (a) Each public employe employed by the Commonwealth shall file a Statement of Financial Interests, Form SEC -1, for the preceding calendar year with the department, agency, or bureau with 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. 51 Pa. Code S4.1(a). Mr. R. Damian Mycka Page 7 55.2. Period covered. The Statement of Financial Interests includes information for the full calendar year immediately preceding the year in which the Statement of Financial Interests is filed. 51 Pa. Code S5.1(c). Therefore, the Regulations of this Commission specifically provide that you are required to file the Statement of Financial Interest which for the 1988 year. Conclusion: Based upon the above discussion, we conclude that you are to be considered a "public employee" in your capacity as a Field Auditor 3 with the DPW. 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 Financial 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 Mr. R. Damian Mycka Page 8 Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code S2.12. SMcerely, Vincent Do Vi p ko Chief Counsel .