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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