HomeMy WebLinkAbout87-585 BronakoskiDear Mr. Bronakoski:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: (717) 783 -1610
June 3, 1987
ADVICE OF COUNSEL
Mr. Richard L. Bronakoski 87 -585
268 Locust Point Rd.
P.O. BOX 85
New Kingstown, PA 17072
Re: Public Employee Quality Control Operations Specialist, Statement of
Financial Interests
This responds to your financial disclosure appeal of May 22, 1987, which
is being reviewed as a request for an advice of Counsel.
Issue: Whether a Quality Control Operations Specialist employed by the
Department of Public Welfare is a public employee within the purview of the
State Ethics Act and therefore, required to file a Statement of Financial
Interest in accordance therewith.
Facts: Your appeal indicates that you do not believe that in your position as
Quality Control Operations Specialist, you should be considered a "public
employee" subject to the financial reporting and disclosure requirements of
the State Ethics Act. You indicate that your employment relates to analyzing
errors in the Food Stamp Program and recommending corrective action. You
further indicate that you are not responsible for contracting or procurement,
administering or monitoring grants or subsidies, planning or zoning,
inspecting, licensing, regulating or auditing any person and that your actions
do not have an economic impact greater than a de minimous nature on the
interest of any person. Further, you indicate that you have no authority to
make final decisions or final recommendations and that your work is subject to
the direction and approval of a superior. You further state that the duties
and responsibilities of your position have been reviewed and that your
classification is being downgraded to an Income Maintenance Program Analyst
I .
The Quality Control Operations Specialist classification which you have
supplied is incorporated herein by reference. It provides that you are
responsible for providing technical guidance and support to the operation of
the quality control evaluation system for the Office of Income Maintenance,
hereinafter OIM, Department of Public Welfare, hereinafter DPW. In this
position, you provide technical program guidance and support to the state -wide
Mr. Richard L. Bronakoski
June 3, 1987
Page 2
operation of the quality control evaluation system. You analyze and interpret
federal and state income maintenance programs, policies, and procedures.
Further, you develop quality control administrative and programatic policies
and procedures necessary to implement the program. As part of your duties,
you develop and prepare interpretive analysis of the quality control findings
based upon policy interpretation. You also develop the departmental response
to federal differences based on the federal review of OIM programs. You have
the responsibility of directing the analysis of violations of program
policies. You also engage in systematic research of policy issues which
impact on program benefits. You futher provide program expertise and
information regarding the application and interpretation of quality control
evaluation systems to the DPW and federal officials. Supervision is exercised
by you over a technical staff assistant. Your work is performed with
initiative and independent judgment under the direction of an administrative
superior.
With respect to your job description, your duties and responsibilities in
the position of Quality Control Operations Specialist include the following:
Review, analyze, and evaluate program objectives,
policies, and operations. Identify program problem areas
in income maintenance programs and develop corrective
action plans. Recommend policy and procedural changes and
provide administrative services related to the corrective
action program.
Review, analyze, and relate Federal proposed and/or
adopted regulations to the Departmental programs for
needed revisions and /or comments. Review proposed manual
and informational material to assure conformity to Federal
regulations and income maintenance program objectives and
policies. Provide guidance and technical assistance to
the program offices concerning efficient methods of
program operations and the correct application of policies
and procedures.
Analyze program data from Federal audits, reviews and
assessments, hearings and Appeals, and Quality Control
Reviews. Develop methodologies for extracting and
recording significant data. Develop reports and charts to
determine program error rates and cause and effect factors
of program deficiencies. Analyze Quality Control data,
develop error prone profiles, and prepare problem analyses
on error elements of eligibility. Develop source data to
identify all causal factors. Develop corrective action
plans to eliminate the deficiencies. Monitor the
implementation of the corrective action plans.
Mr. Richard L. Bronakoski
June 3, 1987
Page 3
Plan and develop studies, surveys, and reports to
determine the effectiveness of the corrective actions
implemented to avoid Federal fiscal sanctions.
Compare management practices used in error free CAOs with
those used in the CAOs having a high error rate in
specific elements of eligibility. Make recommendations
for implementation of effective practices in the CAOs
having high error rates.
Evaluate corrective action plans initiated by other states
for possible state application. Monitor the
implementation of the State corrective action plans for
timely implementation and effectiveness in eliminating
deficiencies.
Participate in AFDC, FS, or MA Corrective Action
Developmental Committee meetings. Complete projects,
etc., as assigned. Write file note of meetings, prepare
agendas and control for completion of State corrective
action plans.
Attend Office Directors' Staff meetings as required to
provide information relevant to program analyses. Prepare
file note if necessary.
Prepare replies to correspondence and inquires directed to
the Secretary of Public Welfare, the Deputy Secretary for
Income Maintenance, and the Office of Quality Assurance.
Prepare State Corrective Action Plans, involving
coordination with all OIM offices.
Prepare Good Faith /Good Cause Waiver requests to fiscal
sanction notices, requiring coordination with OIM offices
and Office of Legal Counsel.
Attend Meetings and conferences as required.
Perform other related duties as assigned.
Discussion: In your capacity as a Quality Control Operations Specialist for
DPW, you are considered a "public employee" as that term is defined in the
State Ethics Act and the regulations of the State Ethics Commission as
follows:
Mr. Richard L. Bronakoski
June 3, 1987
Page 4
Section 2. Definitions.
"Public employee." Any individual employed by the
Commonwealth or a political subdivision who is responsible
for taki ng or recommending official action of a
nonministerial nature with regard to:
(1) contracting or procurement;
(2) administering or monitoring grants or
subsidi es;
(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
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:
Mr. Richard L. Bronakoski
June 3, 1987
Page 5
( -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.
The question presented under these provisions of the statute and the
regulations of the Commission must be reviewed in light of the duties and
obligations as described the the classification specifications, and the job
description under which you operate. The 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 v. State Ethics Commission, 79 Pa. Cmwlth. 491, 470 A.2d 659 (1984);
and Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982).
Also, in reviewing this question, the Commonwealth Court in its ruling in
Phillips, supra, at page 496, directs that coverage of the Ethics Act is to be
broadly, rather than narrowly construed, 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, it is clear that you are a public employee as that term is
set forth in the State Ethics Act.
Mr. Richard L. Bronakoski
June 3, 1987
Page 6
In the instant situation, you have asserted that your functions as a
quality control operations specialist are essential ministerially in nature
and are performed accordi ng to a strict mandate. Di rectly contrary to your
assertions at this time, however, from the position classification and more
imortantly, from your job description, the Commission has determined that jobs
and duties performed by individuals serving in similar categories of
employment were public employees, especially in light of the functions that
they perform. Equally important, however, in the instant situation, is your
job description. This document which was personally drafted and signed by
indicates a substantial amount of discretion, high level responsibilities and
independent judgement and review of matters to which you are assigned.
Specifically, you review, analyze and evaluate program objectives, policies
and operations and identify problem areas in the income maintenance programs
and develop plans for corrective action. You further recommend policy and
procedural changes related to these programs. You also review, analyze and
relate federal proposed or adopted regulations to the DPW programs for needed
revisions and comment. You also check proposed manual and information material
to ensure conformity with federal regulations and OIM maintenance programs.
You also provide guidance and technical assistance to the program offices
concerning efficient methods of program operations. As part of your duties,
you also, analyze program data from federal audits, review assessments,
hearings and appeals, and quality control reviews. You also develop plans and
studies to determine the effectiveness of corrective actions which were
implemented to avoid federal sanctions. You also compare management practices
used in error free CAO's with those used in the CAO's having a higher error
rate and subsequently make recommendations for the implementation of effective
practices in CAO's having high error rates. You also evaluate corrective
action plans in other states for possible application to DPW. These duties
and functions which you have outlined and affirmed in detail through your job
description clearly establish that the functions you perform are more than
ministerial in nature and have greater than a de minimous 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, the Commonwealth Court of Pennsylvania has
also reviewed and issued, of similar nature, a decision 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 position
currently under review. In that case, that issue was whether a Claim
Settlement Agent I, in DPW 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 functions. As such, these individuals were to
be considered "public employees" within the purview of the State Ethics Act.
Mr. Richard L. Bronakoski
June 3, 1987
Page 7
Conclusion: Based upon the foregoing, it is clear that you are a public
employee as that term is set forth in the State Ethics Act and therefore, are
required to file a statement of financial interests. 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
servi ce.
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 Interests
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.
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 ncerely,
Vincent J. Dopko
General Counsel