Loading...
HomeMy WebLinkAbout84-581 ShattoMs. Dolores G. Shatto 4946 Berkley Street Harrisburg, PA 17109 Dear Ms. Shatto: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 June 27, 1984 ADVICE OF COUNSEL RE: Public Assistance Examiner III, Public Employee 84 -581 This responds to your letter of appeal of May 24, 1984, by which you requested Advice from the State Ethics Commission. Issue: You ask whether in your capacity as a Public Assistance Examiner III you are to be considered a "public employee" as that term is defined in the Ethics Act and therefore, you are to file a Statement of Financial Interest pursuant to that Act. Facts: Your letter of appeal received by us on May 24, 1984, indicates that you do not believe that in your position as a Public Assistance Examiner III, you should be considered a "public employee" subject to the financial reporting and disclosure requirements of the State Ethics Act. On that form you indicate that held this position for the first three months in 1983. That form indicates that you ceased working for the Department of Public Welfare (DPW) as March 31, 1983, due to your retirement from that position. We also note that we have received your job description signed by your supervisor on October 19, 1976, which indicates that you became a Public Assistance Examiner III and Field Office Director because of the addition of staff to implement a quality control medical assistance review system. We will assume for purposes of this Advice and response that this last position is the one to be reviewed and to be analyzed to determine whether or not you are to be considered a "public employee" subject to the reporting and disclosure requirements of the State Ethics Act. With respect to this analysis, we have also secured and rely upon the classification /specifications for a Public Assistance Examiner III. Both the classification /specifications and your job description are incorporated herein by reference. With respect to your job description and the classification/ specifications noted above, we emphasize that your duties and responsibilities in the position as a Public Assistance Examiner III include the following: Ms. Dolores G. Shatto June 27, 1984 Page 2 1. You were responsible for the overall administration for the Harrisburg Quality Control Field Office. 2. You were responsible for interpreting and directing implementation of quality control policy and procedures in the three separate Quality Control Evaluation Systems. In this capacity you were responsible for establishing internal operating procedures consistent with the Departmental regulations and guidelines and for implementing these policies through subordinate supervisory clerical staff. 3. You were responsible for dealing directly with the Executive Di rectors, regional di rectors and other admini strative staff in the performance of these duties and for representing the Division of Quality Control in direct contact with individuals, other agencies, and private enterpri ses. 4. You were reponsible for interviewing for vacant positions and hiring new employees, handling personnel actions dealing with the employee grievances, benefits, rights and responsibilities. 5. Persons generally within the classification of Public Assistance Examiner III are responsible for organizing and directing the state --wide program for examination and evaluation of case records to determine the overall effectiveness and quality of county assistance operations.. 5.. Persons wi thin this classification generally supervise a large staff of public assistance examiners and through subordinate personnel verify the eligibility determinations for accuracy and completeness as governed by federal, state, and Departmental standards. In this capacity a Public Assistance Examiner III is responsible for the preparation of reports and recommendations for federal, state, and Departmental review. 7. The classification /specification for this class worker also indicates that the work is performed with initiative and "independent judgment" while operating under the "general direction of an administrative supervisor ". Discussion: As set forth above, the question to be answered here is clear. Specifically, are you, in your capacity as a Public Assistance Exaaliner III with the DPW to be considered a "public en ;loyee" as those terms are defined in the State Ethics Act and the regulations of the State Ethics Commission as follows: Ms. Dolores G. Shatto June 27, 1984 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. "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 Ms. Dolores G. Shatto June 27, 1984 Page 4 (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. (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. Ms. Dolores G. Shatto June 27, 1984 Page 5 (11) 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. (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 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. Ms. Dolores G. Shatto June 27, 1984 Page 6 (C) School teachers and clerks 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 your request for Advice and the classification/ specifications and job descriptions under which you operated while employed by DPW. 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 the particular individual occupying a position may carry out those functions. See McClure, 83 -001; Phillips, 82.008, affirmed on appeal, Pa. Cmwith. , 4T0 A.2d 659 (1984); and Mummau v. Ranck, 531 Fed. Cupp. 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 contrue coverage of the Ethics Act broadly, rather than narrowly, and, conversely, directs that exclusions from the Ethics Act should be narrowly contrued. Based upon this directive and reviewing the definition of "public employee" in a statute and the regulations and the opinions of this Commission, in light of your job functions and the information available to us, we are led to the conclusion that while you served in this capacity you were a "public employee" subject to the financial reporting and disclosure requirements of the Ethics Act. Further detail or our analysis follows. It is clear from your job description and classification /specification associated with this position that your duties and responsibilities were to recommend official action of a non - ministerial nature with regard to regulating or auditing any person in addition to your ability to make recommendations with respect to administering or monitoring grants within DPW. Your activities full within the definition of public employee insofar as sub - paragraph (2), (4), and (5) are concerned. The classification specification for this position indicate that you operated with initiative to make recommendations which are based upon "independent judgment ". These authorizations and responsibilities indicate that your authority to at least recommend actions other than "ministerial ". Conclusion: Based upon the above discussion, we conclude that you were to be considered a "public employee" while you served with the Department of Public Welfare as a Public Assistance Examiner II1. Accordingly, in that capacity and as a result of your duties and responsibilities you should have filed a Statement of Financial Interests for each in which held that position and for the year following your termination of service with the Commonwealth. Accordingly, a Statement of Financial Interests would be due by May 1, 1983, and by May 1, 1984. These reports would cover the information for calendar years 1982 and respectively. Ms. Dolores G. Shatto June 27, 1984 Page 7 If you have not already done so, you should file these Statements of Financial Interests within 15 days of service of this Advice. The original copy of such Statements should be filed with this Commission to insure compliance with this Advice. You should provide the yellow copy to the Department of Public Welfare, Office of Personnel, and you should 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 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. Enclosure:SFI SSC /na cc: John tylo, Director, Personnel, DPW Walter W. Cohen, Secretary, DPW Sin erely, Sandra S. Chri - ianson General Coun -1