HomeMy WebLinkAbout87-509 MarkelMr. Merwyn R. Markel
3000 Swallow Hill Road
Suite 427
Pittsburgh, PA 15220
Dear Mr. Markel:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
February 3, 1987
ADVICE OF COUNSEL
87 - 509
Re:' Public Employee, Human Relation Representative II, Statement of Financial
Interests
This responds to your letter of January 3, 1987, which is being reviewed
as a request for an Advice of Counsel.
Issue: Whether a Human Relations Representative II, employed by the
Pennsylvania Human Relations Commission, is a public employee within the
purview of the State Ethics Act and, therefore, required to file a Statement
of Financial Interests in accordance therewith.
Facts: On January 3, 1987, you forwarded to the State Ethics Commission a
request for reconsideration of the Commission Opinion, 86 -011, wherein the
Commission determined that Human Relations Representatives were public
employees within the purview of the State Ethics Act and, thus, required to
file Statements of Financial Interests. You were not one of the individuals
involved in that matter and, as such, your request <for reconsideration has
been treated as an original advice request. As part of the materials
forwarded to the Commission, you indicated that you currently serve as a Human
Relations Representative II for the Pennsylvania Human Relations Commission.
You assert that the duties that you perform in this position are ministerial
in nature as that term is defined in the State Ethics Act. You further
advised that the official actions of a Human Relations Representative are
performed in a manner prescribed by procedures that are set forth in the Human
Relations Commission manual and by procedures set forth in that Commission's
performance standards for professional and technical employees manual. You
advised that your actions in your current employment are performed in
obedience to legal mandates of the Pennsylvania Human Relations Act as well as
the Pennsylvania Fair Educational Opportunities Act. You advise that there is
Mr. Merwyn R. Markel
February 3, 1987
Page 2
no exercise of independent judgment in this position. You further indicate
that your functions are performed, generally, in an office with on site
supervision.
You also assert in your letter of request, various other technical
defects in the Commission's opinion, 86 -011. In light of the fact, however,
that the matter which is currently before the Commission is being treated as
an original request, there is no need to set forth,'in the context of this
Advice, those assertions. In relation to this situation, we have reviewed the
position specification for your position as well as your job description.
The position classification for a Human Relations Representative II,
(4982), is also uniform throughout all units and provides that:
This is advanced technical work in enforcing the provisions of the Human
Relations Act and in the counciliation of related problems within a community.
An employee in this class is responsible for working in the area of
compliance by conducting highly complex and sensitive investigations of
complaints of alleged discrimination against individuals or minority groups in
education, community services, housing or labor divisions implementing
programs designed to promote ethnic integration in all parts of the community
and educate the general public against prejudice. Work involves conducting
extensive investigations into all facets of complaints, determining probable
causes, arriving at terms of conciliation through discussions with supervisor
and commission attorneys, presenting the terms of conciliation to the
respondent for agreement and compiling a complete case history report
including recommendations for conciliation and case closing. Work invovles
meetings with school and college administrators, private industry heads,
community leaders, other human relations commissions and councils, and ethnic
community leaders, other human relations commissions and councils, and ethnic
group leaders to conduct various studies and surveys, to discuss and promote
various human relation programs, and to aid in finding ways of solving or
easing racial tension situations. Work may also involve implementing,
conducting, or participating in education or community service programs
designed to promote understanding and acceptance between the races and
participation in the conduct of studies and surveys aimed at compiling dates
pertaining to patterns of integration in areas such as housing or employment.
Employees are subject to be called at anytime to help investigate and ease
tension situations.
In addition to the foregoing, we have reviewed your job description
dated November 16, 1981, which you have signed and submitted to the
Pennsylvania Human Relations Commission. In part, this job description
Mr. Merwyn R. Markel
February 3, 1987
Page 3
provides that you have been assigned various cases which previous
investigators have been unable to resolve. You must determine the issue,
problems and questions unrecognized and /or unresolved and unanswered by
previous investigators. You plan and conduct further investigation or
immediate settlement or closing recommendations based upon proper factual and
legal analysis. Your job description further indicates that you have drafted
and signed complaints, amended complaint forms necessary to correct previous
errors of other agency staff by properly informing respondents of the charges
filed against them. Your job description further provides as follows:
"In analyzing case material, I employ legal expertise
not possessed or employed by previous investigators, and
medical knowledge which I must often obtain
independently.
I precede each investigative contact by careful
planning of the same based on material and reports
previously obtained and specialized expertise described
above. Investigation consists of critical interrogation,
usually in person, of Complainants, Respondent
representatives and independent witnesses. ,In such
interrogations I employ knowledge of direct and
cross - examination techniques, sensitivity to witnesses'
evasive techniques, and knowledge of rules of evidence.
I communicate by telephone and by letter with
Complainants, Respondent representatives, attorneys and
witnesses to schedule meetings to obtain documentary
evidence and, occasionally, to present questions.
I draft memos to Commissioners requesting issuance of
subpoenas and draft subpoenas to compel production of
documents and, occasionally, attendance of witnesses at
depositions.
I evaluate all the evidence obtained in case
investigations and make recommendations of findings of the
merits of complaints and, occasionally, of findings that
the Agency lacks jurisdiction over complaints. Such
evaluation employs thorough knowledge of the Pennsylvania
Human Relations Act and rules of evidence, as well as,
occasionally, familiarity with other statutory and case
law (usually labor law) involved in some complaints.
Mr. Merwyn R. Markel
February 3, 1987
Page 4
Recommendations are by semiformal written reports to
supervisory personnel, stating each fact suggestive of a
particular finding and citing the documentary evidence in
the case file which establishes and /or supports that
fact.
For cases to be closed on the basis of lack of
validity or lack of jurisdiction, I draft or type in final
form a formal case closing recommendation for review of
and action by the Agency's Executive Director. For
complaints found valid, I begin the conciliation process.
Conciliation begins when, on approval of supervision,
I prepare a Finding of Probable Cause outlining the
allegations of a complaint and the facts supporting it.
I also determine proper equitable and monetary relief
necessary to remedy unlawful employment practices and
damage done to Complainants and, occasionally, to other
affected parties. Usually, this includes a separate
investigation into the earnings of a complainant and the
relevant wage or salary schedule provided by a Respondent
since the date of the discriminary act(s) complained of;
virtually always it involves calculating the amount of
money due the Complainant and, occasionally, to other
affected parties.
I incorporate the equitable and monetary relief into
a written set of Terms of Adjustment to be given the
Respondent after approval by an Agency attorney. I serve
the Finding of Probable Cause on Respondent
representatives by mail-and participate in conciliation
meetings and pre- hearing conferences in an attempt to
settle complaints.
I prepare formal Conciliation Agreements to settle
complaints voluntarily, communicating with the parties
orally and in writing to reach agreement on terms of
settlement. Often this invovles evaluating and explaining
to Complainants the relative merits of accepting less than
full remedy in light of the risk of losing all relief by
proceeding further.
Mr. Merwyn R. Markel
February 3, 1987
Page 5
II. Discussion:
By oral and written communication, I assure
compliance with settlement agreements. I occasionally
obtain and submit to Complainants money paid in
settlement.
Where conciliation efforts have failed, I request, by
written memo to the Director of Compliance, approval of
pre- hearing conferences and quasi - judicial hearings into
the merits of complaints."
In relation to this matter, it should also be noted that on June 24,
1980, a Commission Advice, No. 80 -686 was issued to you wherein it was
determined that you were not a public employee as that term was set forth in
the Act. This Advice was not issued by the full commission.
The question to be answered here is clear. Specifically, are you, as a
Human Relations Representative II with the Pennsylvania Human Relations
Commisison, hereinafter the HRC, to be considered a "public employee." The
State Ethics Act defines that term 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.
Mr. Merwyn R. Markel
February 3, 1987
Page 6
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
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:
Mr. Merwyn R. Markel
February 3, 1987
Page 7
( -1 -) are an inherent and
recurring part of his position;
and
( -2 -) affect organizations
other than his own organization.
We must review the question presented under these provisions of the
statute and the regulations of the Commission in light of the duties and
functions as described in the 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; Phillips v. State Ethics Commission, 79 Pa. Cmwlth. 491, 470
A.2d 659 (1984); Mummau v. Ranck, 531 Fed. Supp. 402, (E.D. Pa. 1982).
Also, in reviewing this question, the Commonwealth Court of Pennsylvania
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 the functions and
the information available it is clear that you are a public employee as that
term is set forth in the State Ethics Act.
As noted in the factual portion of this Advice, the State Ethics
Commission has very recently issued an official opinion by the full Commission
indicating that Human Relation Representatives at all levels are to be
considered public employees . as that term is defined in the State Ethics Act.
In the instant situation, it does not appear as though there are any factual
circumstances in your particular case which would `result in deviation from
this official Commission opinion. It should also be noted that while an
advice was issued to you in 1980 determining that you were not a public
employee, that Advice was not issued by the full Commission. Additionally, a
number of decisions have been rendered since that advice was issued which
would now provide the basis upon which the most recent opinion has been
issued.
In the instant situation, you have asserted that your functions as a
Human Relations Representative are ministerial in nature and are performed
according to a strict mandate. You advise that you have no independence in
your job and that you are under strict supervision and must comply with all
Mr. Merwyn R. Markel
February 3, 1987
Page 8
the rules and regulations of the Human Relations Commission. Directly
contrary to your assertions at this time, however, is the position
classification and more importantly, your job description. The position
classification, of course, is identical to the one that was reviewed by the
Commission in 86 -011. The Commission determined that the jobs and duties
performed by the individuals serving in the categories of employees set forth
in that position classification, were clearly public employees, especially in
light of the functions that they performed in relation to conciliation
negotiation, settlements and recommendations. Equally important, however, in
the instant situation, is your job description. This document which was
personally drafted and signed by you indicates a substantial amount of
discretion, high level responsibilities, and independent judgment and review
of matters to which you are assigned. Specifically, your job description
indicates that you individually are able to perform functions that other
investigators and human relation representatives were unable to perform. You
set forth in detail your utilization of legal expertise which is not possessed
by other individuals with whom you work. You set forth at great length, your
substantial investigative abilities and experiences and you also indicate, in
detail, the facts that you determine proper and equitable monetary relief
necessary to remedy unlawful employment practices and damage done to
complainant. You incorporate the equitable and monetary relief into written
sets of terms of adjustments. You prepare the formal conciliation agreements
to settle complaints voluntarily, you assure compliance with settlement
agreements. These duties and functions which you have outlined and affirmed
in detail through your job description clearly establish that the functions
you performed are more than ministerial in nature and have greater than an
economic impact. As such, it is clear that you are performing the functions
of a public employee as set forth in the State Ethics Act.
In addition to the foregoing, and as the Commission noted in its most
recent opinion, the Commonwealth Court of Pennsylvania has also reviewed and
issued, of similar nature, which supports the conclusion herein.
In Phillips v. State Ethics Commission, Supra, the Commonwealth Court of
Pennsylvania specifically reviewed a position that is similar to the positions
currently under review. In that case, at issue was whether a Claims
Settlement Agent I, in the Pennsylvania Department of Public Welfare, was a
public employee within the purview of the State Ethics Act. The Court noted
that individuals serving in that position generally investigated public
assistance matters, analyzed information, negotiated matters, recommended
terms of settlements, and generally exercised discretion in performing such
function. As such, these individuals were to be considered "public employees"
within the purview of the State Ethics Act.
Mr. Merwyn R. Markel
February 3, 1987
Page 9
Conclusion: Based upon all the foregoing, it is clear that you are a public
employee as that term is set forth in the State Ethics Act and therefore,
required to file a Statement of Financial Interests. In light of the fact
that you have already filed your Statement of Financial Interests with this
Commission as part of the instant matter, you are in compliance with this
requirement.
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.
JJC /na
Sinc
ohn J. •nt o
Actin = General Counsel