HomeMy WebLinkAbout86-583 BloseMr. Donald L. Blose
P.O. Box 249
Warren, PA 16365
Dear Mr. Blose:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
July 16, 1986
ADVICE OF COUNSEL
86 - 583
Re: Institutional Safety Manager, Department of Public Welfare, Public
Employee
This responds to your letter of June 13, 1986, in which you requested
advice from the State Ethics Commission.
Issue: You ask whether in your capacity as a Institutional Safety Manager
with the Pennsylvania Department of Public Welfare, hereinafter, the
Department, 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. An employee in this position is responsible
for a total institutional safety program for Warren State Hospital. Work
includes responsibility for development, coordination, implementation and
maintenance of policy, procedures and training necessary to conduct an
effective safety program. This position is of Department Head status and
reports directly to the Assistant Superintendent of Administration.
The Safety Manager has overall responsibility to develop, coordinate and
direct the safety program for the institution and to assist department heads
in developing sub - safety programs for all disciplines and operations to
prevent and /or control hazards.
Mr. Donald L. Blose
July 16, 1986
Page 2
You also serve as follows: Recommends policies to be adopted
hospital -wide as needed to insure safety and security of patients, staff and
visitors. Reviews specifications for the purchase or construction of new
equipment and facilities to insure that safety codes and standards are met.
Provides technical advice to department managers, middle managers and
supervisors regarding job and area safety.
Performs regular inspections of the buildings and grounds to check for
safety, security or fire hazards. Any problem areas are to be reported to the
Assistant Superintendent for Administration who sees that situations are
remedied. Follow -up inspections are, thereafter, implemented to insure that
corrective action is taken.
You also manage and coordinate the efforts of all departments; including
development and publication of a safety and fire prevention manual for the
hospital. You insure that safe operating procedures are developed by
departments involved for all shops, machines, and you review and insure that
safe operating procedures are posted and observed.
In addition to the foregoing, you investigate serious accidents to
employes, patients, visitors and property damage and reports to the proper
authority; insure that employes are counselled about preventative measures to
minimize recurrences and recanmend corrective procedures. Reports regarding
these situations are forwarded to Harrisburg summarizing information
developed.
You serve as head of the Safety Department, thus directly supervising the
Chief of Security and the Fire Mashals; guide and direct the people in all
hospital departments for total coordination with hospital safety program,
goals, insuring that members are trained adequately and that hospital policies
are thoroughly understood; oversee timekeeping and scheduling; sign payroll
authorizations for Safety Department personnel.
We have reviewed your job description and incorporated that document
herein by reference.
Discussion: As set forth above, the question to be answered here is clear.
Specifically, are you, in your capacity as a Institutional Safety Manager
serving with the Department to be considered a "public employee." The State
Ethics Act defines that term as follows:
Mr. Donald L. Blose
July 16, 1986
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.
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
p_Q.rfarms 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.
Mr. Donald L. Blose
July 16, 1986
Page 4
(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.
(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.
Mr. Donald L. Blose
July 16, 1986
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 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.
(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 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, 83 -001;
Phillips, 82 -008, affinned on appeal, 79 Pa. Cmwlth. 491, 470 A.2d 659 (1984);
and Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982).
Mr. Donald L. Blose
July 16, 1986
Page 6
It is clear that in your capacity as a Institutional Safety Manager, you
have the ability to recommend official action with respect to subparagraph 4
and 5 within the definition of "public employee" as set forth in the Ethics
Act, 65 P.S. 402. Specifically, you are involved in the regular inspections
of buildings and grounds as well as the investigation of employee and other
individual accidents and damage in the institution that you serve.
Additionally, your job description clearly reflects you are involved in
recommending policies to be adopted on a hospital -wide basis and that you have
overall responsibility to develop, coordinate and direct the program for which
you are responsible. Your job description specifically categorizes your
position as department head status and you also peform various administrative
functions including signing the payroll authorizations for safety department
personnel.
These activities fall within the definition of public employee as contained
in the regulations of the Commission 51 Pa. Code B (1)(A), and B (2)(2).
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 an Institutional Safety
Manager with the Pennsylvania Department of Public Welfare. 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.
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.
If you have not already done so, a Statement of Finanical Interests must
be filed within 15 days of this Advice. This Statement of Financial Interest
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.
Mr. Donald L. Blose
July 16, 1986
Page 7
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 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.
Si nc_ ly ,
ohn �. t
Gen al Counsel