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HomeMy WebLinkAbout89-563 IngramLeDelle A. Ingram Compliance Specialist III PA Board of Probation and Parole P.O. Box 1661 Harrisburg, PA 17120 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 25, 1989 89 -563 Re: Compliance Specialist III, Pennsylvania Board of Probation and Parole, Public Employee, Statement of Financial Interests Dear Ms. Ingram: The Ethics Commission received your financial disclosure appeal form on June 30, 1989, which will be treated as a request for advice of counsel. Issue: You ask whether, in your capacity as a Compliance Specialist III with the Pennsylvania Board of Probation and Parole, hereinafter, the Board, 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 Compliance Specialist III is defined as follows: "An employee in this class supervises lower level specialists, or; performs advanced work such as the development of reporting procedures for Commonwealth -wide application by all agencies, and monitoring contract compliance activities for ,multiple agencies and political sub - divisions, or; performs advanced work in contract compliance review of large, state -wide projects involving Ms. LeDelle A. Ingram Page 2 major construction such as buildings, highways, airport reconstruction, bridges and similar structures. An employee in this class functions with considerable independence on day -to -day operations and work is reviewed by an administrative supervisor through conferences and reports." In addition, your job description provides that you have the following duties in responsibilities: Developing policy statements; evaluating new concepts for Affirmative Action; recommending policies to the Board; working with Bureaus and office units in appraising equal employment opportunity programs; developing guides and communications to staff and field operations; providing technical assistance to personnel as to affirmative action; monitoring progress; providing assistance in the resolution of problems; conducting periodic audits to assess overall agency status; advising employees of their employment rights; assisting in personnel counseling; monitoring Contract Compliance Programs; establishing and maintaining community contacts; conferring with the chairman as to the implementation of equal employment opportunities; reviewing Agency Affirmative Action Certificates; maintaining a working relationship with agency personnel analysts; attending Board meetings; working with staff development in an effort to provide affirmative action training; investigate highly sensitive grievances or complaints; develop and disseminate pertinent data as to Affirmative Action programs; review and update all statistical data; serve on the Handicapped Compliance Advisory Committee; discuss problems with employees in an attempt to solve same; establish and maintain records; perform all other duties and responsibilities as are required by the Board and other agencies. In your appeal, however, you argue that you are only responsible for monitoring Affirmative Action /Equal Employment Opportunity activities of contractors who have been awarded contracts of $5,000 or more by the agency. You assert that your actions are ministerial in nature because you do not exercise your own judgement but follow prescribed guideline, rules and regulations. In addition, you assert that you do not participate in awards or in decisions to purchase the selection of proposals from a vendor and that you do not direct, supervise or approve the expenditures of grant or monitor another person's or organization's administration of a grant but you only monitor Affirmative Action /Equal Employment Activities of the contractor or grantee. You state that you only audit or monitor the internal process of a contractors Affirmative Action /Equal Employment Opportunity activities and that you do not have any final decision - making- authority about any contractor as to whom any non - compliance would be referred to the agency head and Secretary of Administration as prescribed in set guidelines. You conclude by asserting that you do not have any staff to make any decisions about that and any final Ms. LeDelle A. Ingram Page 3 decision making authority is referred to your direct supervisor who is Chairman of the Board. Discussion: As set forth above, the question to be answered here is clear. Specifically, are you, in your capacity as a Compliance Specialist III serving with the Board to be considered a "public employee." The State Ethics Act defines that term 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. 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. 5402. 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 Ms. LeDelle A. Ingram Page 4 ( -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 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. Ms. LeDelle A. Ingram 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 §1.1. 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 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, Opinion 83 -001; PhilliDs, 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). Ms. LeDelle A. Ingram Page 6 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 Compliance Specialist III, you have the ability to recommend official action with respect to subparagraphs 1, 2, 4, 5 within the definition of "public employee" as set forth in the Ethics Act, 65 P.S. 5402. Specifically, since you take actions regarding recommending policy to the Board in terms of Affirmative Action Programs and since you monitor or audit contracts to determine whether they are incompliance with Affirmative Action /Equal Employment Opportunity laws, you fall within the statutory definition of public employee under the State Ethics Act. You also fit within the definition of public employee in the regulations of the State Ethics Commission under the (B)(I)(a) and (II)(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. Conclusion: Based upon the above discussion, we conclude that you are to be considered a "public employee" in your capacity as a Compliance Specialist III with the Board. 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 Ms. LeDelle A. Ingram Page 7 proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. such. This letter is a public record and will be made available as 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. incerely, Vincent J. Dopko Chief Counsel