HomeMy WebLinkAbout84-594 FedeanisMr. Daniel S. Fedeanis
4084 Surrey Drive
Allison Park, PA 15101
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
July 20, 1984
ADVICE OF COUNSEL
84 -594
RE: Special Agent III; Pennsylvania Crime Commission, Public Employee
Dear Mr. Fedeanis:
This responds to your letter of June 26, 1984, in which you requested
advice from the State Ethics Commission.
Issue: You ask whether in your capacity as a Special Agent III with the
Pennsylvania Crime Commission, hereinafter, the Crime Commission, 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: Your letter of June 26, 1984, indicates that you do not believe that
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 the
position of Special Agent III, and as contained in your job description which
you signed and dated December 15, 1983. Your duties and responsibilities, as
set forth in these two documents which are incorporated herein by reference,
include the following responsibilities and functions:
1. An employee in this class conducts investigations of crime with
particular emphasis on organized crime and racketeering activities by locating
records, persons, etc., conducting surveillances, managing informants,
conducting interviews and interrogations, and gathering intelligence,
information and evidence in order to uncover evidence of the illegal activity,
Mr. Daniel S. Fedeanis
July 20, 1984
Page 2
2. An employee in this position generally is required to exercise
independent judgment as to investigative techniques to be used and is expected
to use initiative in recognizing, exploring, and exploiting leads that may
develop in the course of an investigation. A Special Agent III exercises the
lawful investigative powers of the agency and may utilize the law enforcement
powers of the Office of the Attorney General.
3. An individual in this position is responsible for preparing detailed
reports on the investigative activities that he undertakes setting forth the
evidence, facts, conclusions, and making recommendations related to these
investigative activities.
4. This individual also presents evidence and testimony at hearings and
may appear in court to testify as a witness based upon his knowledge of the
case and has the ability to make recommendations and drafts regarding
subpeonas for records or the testimony of individuals for use in such
proceedings.
5. An individual in this classification also provides recommendations
regarding the development of state -wide plans for collecting intelligence
information on organized criminal activity.
6. In addition to initiating and preparing requests for subpeonas, your
job description also indicates that you may initiate and submit requests to
obtain grants of immunity for witnesses and to initiate and /or request court
orders to secure "confidential material" from the Pennsylvania Department of
Revenue consistent with agency policy and procedures.
7. Your job description also indicates that you are responsible for
selecting witnesses for hearings and participating at agency hearings by
preparing a strategy for said hearings with the case attorney. In this
capacity you prepare a list of questions to be used at the hearing which may
concern the financial and business records relevant to the investigation and
the individual subject to interrogation.
8. Your job description also indicates that as such an agent, you
exercise independent, sound judgment on investigative techniques and use
initiative in developing, recognizing, explaining and exploring leads to their
logical conclusion. In this regard you also prepare the results of the
investigation for public hearings and or public reports including testifying
at criminal proceedings, grand jury proceedings, public hearings, and before
legislative bodies as required by law and or in accordance with the needs of
the Crime Commission.
Mr. Daniel S. Fedeanis
July 20, 1984
Page 3
Discussion: As set forth above, the question to be answered here is clear.
Specifically, are you, in your capacity as a Special Agent III serving with
the Crime Commission to be considered a "public employee" as those terms are
defined in the State Ethics Act and the regulations of the Commission 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.
"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;
Mr. Daniel S. Fedeanis
July 20, 1984
Page 4
(II) administering or monitoring grants or
subsidies;
(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
(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
Mr. Daniel S. Fedeanis
July 20, 1984
Page 5
( -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.
(C) Staff attorneys engaged in representing
the department, agency, or other governmental
bodies before the public.
(0) 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.
Mr. Daniel S. Fedeanis
July 20, 1984
Page 6
(A) City clerks, other clerical staff, road
masters, secretaries, police officers, welfare case
workers, maintenance workers, construction workers,
detectives, equipment operators, and recreation
directors.
(8) 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 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, the classification
specifications, and the job descriptions 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, 83 -001; Phillips, 82 -008, affirmed on appeal, Pa. Cmwlth.
470 A.2d 659 (1984); and Mummau v. Ranck, 531 Fed. Supp2 (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, we are led to the conclusion that while
you serve in this capacity, 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 Special Agent III, you have the
ability to recommend official action with respect to subparagraphs (4) and
paragraph (5) within the definition of public employee as set forth in the
Ethics Act, 65 P.S. 402. Specifically, your authority to exercise independent
judgment and make recommendations with respect to investigative areas
under your jurisdiction, including the ability to recommend subpeonas, and the
development of state -wide plans for collecting intelligence information on
organized crime, are significant. These activities fall within the concept of
taking or recommending official action with respect to "regulating" any
Mr. Daniel S. Fedeanis
July 20, 1984
Page 7
person. It is also true that in your capacity as a Special Agent III you are
able to initiate several other important requests, such as for grants
of immunity or for confidential information from the Pennsylvania Department
of Revenue. Your ability to undertake, pursue, and complete, these types of
processes indicates that you have an ability to recommend official action
which would have an economic impact of a greater than deminimus nature on the
interests of the person who was either going to be recommended for immunity,
for example, or not.
Likewise, it is clear from your - job description that you are an
individual who normally performs his responsibility in the field without
on -site supervision and who has the authority to make the final technical
recommendations regarding the conduct of hearings with respect to your ability
to select witnesses and to present questions and to prepare a strategy in
conjunction with the case attorney with respect to such hearings. These
activities fall within the definition of public employee as contained in the
regulations of the Commission 51. Pa. Code (B)(I)(a) and (II)(a)(4). 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.
Finally, we must address your contention that the regulations of the
Commission state that "generally" persons serving as "police officers" and
"detectives" are not "public employees ". We addressed this question in our
opinion in Peffley, 80 -055. There, we concluded that enforcement officers for
the Liquor Control Board (LCB) were to be considered "public employees"
notwithstanding the determination that they were "law enforcement officers ".
In that opinion, we indicated that the general exclusions set forth in our
regulations were to be applicable only were the individuals who sought to be
excluded could demonstrate that they are "police officers" within the common
and ordinary meaning of that term. Further, we indicated that in the common
ordinary meaning of the term "police officers" the following characteristics
would be present:
a. Such an individual would be a member of an organized force charged
with the duty of maintaining the general peace and order of a community;
b. Someone authorized or empowered to perform functions considered
critical to public safety, including the detection and investigation of
serious crimes and the apprehension and arrest of offenders;
c. Someone to whom a citizen could register a general complaint
regarding criminal activity and who can be expected to investigate and resolve
that complaint. See also the Rules of Criminal Procedure, Rule 51, Comment,
as to persons who may issue citations and make arrests for the general
concepts regarding a person with "police" powers.
Mr. Daniel S. Fedeanis
July 20, 1984
Page 8
As in Peffley, given these generally accepted concepts of who is a
"police officer" it is not so clear that persons serving in your capacity with
the Crime Commission would be considered "police officers ". Such individuals
as we understand it are not charged with the general duty of maintaining peace
and order, they are charged with the specific and limited duty of
investigating certain areas of crime and public corruption. Such
investigative responsibilities are not as broad as the duties and
responsibilities of a "police officer" with respect to investigating a general
complaint regarding criminal activity.
Likewise, the examples contained in the regulation to which you refer are
just that -- examples. The regulations are not intended to exclude from the
coverage of the Ethics Act those persons who perform functions which might
otherwise fall within the classification of "public employee ". We are
concerned with fulfilling the purpose of the Ethics Act in any interpretation
under the Ethics Act. Thus, the examples that have been given in the
regulations do not preclude the conclusion that as a Special Agent II1, you
are to be considered a "public employee" as set forth in the Ethics Act.
Conclusion: Based upon the above discussion, we conclude that you are to be
considered a "public employee" in your capacity as a Special Agent III with
the Pennsylvania Crime Commission. Accordingly, in that capacity and as a
result of your duties and responsibilites, you should 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 service with the Crime
Commission.
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 for the calendar year 1983. Please file the original
of such a statement with this Commission to insure compliance with this
Advice, provide the yellow copy to the Crime Commission, 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. Daniel S. Fedeanis
July 20, 1984
Page 9
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.
Sincerely,
Sandra S. Christianson
General Counsel
Enclosure: SFI
SSC /na
cc: Wallace P. Hay, Executive Director, Pa Crime Commission