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HomeMy WebLinkAbout81-596 SciottoMailin Address: STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783-1610 August 10, 1981 ADVICE OF COUNSEL Charles T. Sciottc • Directc of Personnel Office Of Budget and .Administration Room 517 Building Harrisburg, Pennsylvania 17120 RE: Part- time Hearing Examiners, Department of State Dear Mr. Sciotto: 81 -596 This responds to your communication of March 16, 1981, in which you requested an interpretation of the applica- bility of the Ethics Act to individuals serving as Hearing Examiners wi_thirn. the Department of State issue You asked whether individuals serving as part -time Hearing Examiners on service purchase contract with the Department of State are required to subrit. Financial Interest Statements in accordance with the provisions of the State Ethics Act. Facts ,i You informed us that Hearing Examiners are utilized on a part -time, service purchase contract basin by the Bureau of Professional and Occupational Affairs, within the Department of State. Bureau records indicate that there are 28 individuals currently serving under contract who may be utilized as Hearing Examiners for the bureau. These Examiners are assigned on a case -by -case basis and are then responsible for handling the procedural and substantive aspects of a particular case. This includes making rulings on pre - hearing discovery, presiding at the formal hearing, ruling on evidentary matters and objections, and preparation and submission of an adjudication and order. In addition, depending on the law applicable to the particular Board, the Hearing Examiner's adjudication and order may either be advisory or binding on the Board itself. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Charles T. Sciotto August 10, 1981 Page 2 Of the 28 individuals currently under contract, only 11 have actually been assigned cases. The following is a list of the individuals used and the number of cases assigned: Daniel Segal - 1 case. Patrick Sullivan - 16 cases. E. Stoney Read •-• 6 cases. Kenneth Hirsch - 10 cases. Robert Claraval - 2 cases. Jay Braderman - 5 cases. Stewart Magdule - 8 cases. John Speese - 8 cases. Jerome Parker - 1 case. Louis Seltzer - 1 case. Joy.•Conti - 1 case. The complexity of th.s natter, however indicates that this Examiner will be expending hours and time, well above the average, to complete this assignment. These cases which are assigned as indicated above require approximately 10 hours .from the assignment to the completion of the adjudication and order. However, as indicated above, complex cases such as the one assigned to Hearing Examiner Conti may be well above average and have not been included in the average figure which you have submitted to us. Hearing Examiners are paid on a service purchase contract basis at the rate of $35 an hour for handling these cases. Secretarial support is provided by the Hearing Examiner on general matters, but for the actual formal hearing, stenographic services are provided by the Bureau under a separate contract with a stenographic reporting service. In addition to the above reimbursements these Hearing Examiners are reimbursed for reasonable expenses incurred in providing services to the Bureau. Discussion: The main question presented is whether these individuals can be considered within the definition of "public employees" under the provisions of the Ethics Act. All "public employees" are required to submit Financial Interest Statements as set forth in Section 4 of the Ethics Act. Charles T. Sciotto August 10, 1981 Page 3 In reviewing this question the main consideration is not the mechanism by which these individuals are paid (service purchase contract) but whether these individuals serve in a position of public trust and are thus within the scope of the concerns of Act 170. See Massian- Jackson, 80 -- 036 and Morris, 80 -039. In these cases the Commission expressed the opinion that individuals could not escape application of the Ethics Act on the slim basis that a "piece of paper -- service purchase contract -- somehow distinguishes them from the regular employees who are bound by the restrictions of the Ethics Act." 1f, in fact, there is little substantive difference between the services -rendered by these individuals and typical, full-time Hearing Examiners within the Bureau, then the Commission would conclude that these individuals are "public employees" within the coverage of the Ethics Act. The Commission has established the following criteria in considering and reviewing the question of whether these individuals should be considered "public . mployeees" in a similar situation and status as permanent, full -time . employees. These criteria include the following: 1. The history of compensated service in the capacity at issue, that is, Hearing Examiner; 2. The expectation of the individual in that capacity for continued or futher compensated services; 3. Whether or not the compensated services are identical to or similar to services that would ordinarily be performed by an elected or appointed official or employee; 4. Whether or not the services performed are similar or identical to those performed ordinarily by full -time employees; 5. The degree to which the individual performing services is supervised by the agency; 6. Whether the individual performs compensated services for a number of agencies; and 7. Whether or not the compensated services are such that, in the discretion of the Commission, they implicate the "public trust" and are thus to be considered within the scope of the concerns that Act 170 seeks to protect. Charles T. Sciotto August 10, 1981 Page 4 There is no indication that there are any regular employees employed as Hearing Examiners by the Department of State, Bureau of Professional and Occupational Affairs, to whom these individuals may be analogized. In addition, we have not received information regarding the length of service of these individuals and therefore are unable to draw any conclusions regarding the expectations of these individuals for continued or further compensated services or as to the history of the compensated services of these individuals. However, we are able to discern that these individuals do not apparently engage in extended services for the Bureau, particularly where they have not been assigned more than two hearings during the reporting period. We realize that this is an arbitrary limitation, and should not be considered the sole criteria by which to judge whether an individual hearing examiner may be considered a "public employee" or not, particularly given the case of Hearing Examiner Conti, for example. There, assignment of one case of a clearly more complex nature which will expend more hours than average, indicates that Hearing Examiner Conti should be considered being an individual within the defi- nition of "public employee" and required to file a Financial Interest Statement under the Ethics Act. The criteria set forth above in Items 1 - 7 should be your prime standards by which to judge whether or not these persons are within that category of "public employees" required to file Financial Interest Statements. However, in addition, you should consider the specific situation such as presented by Hearing Examiner Conti where assignment of one case is clearly, in our estimation, within the purview of concerns of Act 170. In addition, if any of these Hearing Examiners serve other agencies on a basis that might be considered to implicate the "public trust" by the fact that they have a history of compensated services in various bureaus and would, in the aggregate, have been assigned more than two cases they may be considered "public employees" required to file Financial Interest Statements. Conclusion: You should be able to apply the above - related criteria to individuals on a case -by -case basis in the future. However, in relation to the individuals specifi- cally itemized in your request, we conclude that the following individuals should be considered "public employees" within the meaning of the Ethics Act and, therefore, are required to file Financial Interest Statements: Patrick Sullivan, Kenneth Hirsch, Jay Braderman, Stewart Magdule, John Speese, and Joy Conti. Charles T. Sciotto August 10, 1981 Page 5 Those individuals, based on the information that you have supplied who do not meet the criteria of having been assigned two or more cases within the reporting period and /or who do not otherwise fall within the ::riteria itemized above include: Daniel. Segal, Robert Claraval, Jerome Parker, and Louis Seltzer. This latter group of individuals should not be considered "public employees" within the meaning of the Act and they should not be required to file Financial Interest Statements under the Ethics Act, unless their situation has changed and appli- cation of the above standards (two or more case assignments) along with consideration of the other criteria listed would indicate a contrary result. If that is the case, I would suggest that these differences or changes be re- submitted to us on an individual basis. Please relay this information to these individuals and attempt to have the required filings complete within thirty (30) days of this Advice. 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 cornduct 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 may be scheduled and a formal Opinion from the Commission will be issued. You should make such a request or indicate your disapproval of this Advice within the next 30 days. SSC /rdp Sincerely, / , - m- Op -ndra hristianson General C6unsel