HomeMy WebLinkAbout88-570 MarkelDear Mr. Markel:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
May 26, 1988
Mr_. Merwyn Markel
3000 Swallow Hill Road.
Suite 427
Pittsburgh, PA 15220
Re: F.atement of Financial Interests, Public Employee, Human
Iulations Representative II
88 -570
This responds to your letter of April 16, 1988, in which you
requested advice from the State Ethics Commission.
Issue: You ask whether in your capacity as a Human Representative
II with the Pennsylvania Human Relations Commission, hereinafter,
HRC, you are to be considered a "public employee" as that term is
defined in the Ethics Act, and therefore, whether you art
required to file a Statement of Financial Interests purEaant 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 consider the question presented,
the duties and responsibilities associated with your position as
contained in your job description and specification for this
position must be reviewed. Your duties and responsibilities, as
set forth in these documents, which are incorporated herein by
reference, provide in part:
Definition: This is advanced technical work in enforcing
the provisions of the Human Relations Act and in the
conciliation 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
employment, education, housing or public accommodations; or
Mr. Merwyn R. Markel
May 26, 1988
Page 2
for working in an education, community services, housing or
labor division 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 attorney, presenting the terms of conciliation to
the respondent for agreement and compiling a complete case
history report including recommendations for conciliation
and case closing; or work involves meetings with school and
college administrators, private industry heads, community
leaders, other human relations commissions and councils, and
ethnic group leaders to conduct various studies and surveys,
to discuss and promote various human relations programs, and
to aid in finding ways of solving or easing racial tension
situations. Work may also involve implementing, conducting,
or participating in educational 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 data 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 a racial tension situation.
Supervision is received from a higher level Human Relations
Representative who instructs subordinates on the proper
approach to a problem and reviews work through reports and
conferences for conformance to agency policies and
procedures, and for an evaluation of results.
Discussion: As set forth above, the question to be answered
here is clear. Specifically, you are, in your capacity as a
Human Relations Representative II serving with 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
subsidiaries;
(3) planning or zoning;
Mr. Merwyn R. Markel
May 26, 1988
Page 3
(4) inspecting, licensing, regulating or auditing
any person; or
(5) any other activity where the official action
has an economic impact of greater than the 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. 5402.
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
Mr. Merwyn R. Markel
May 26, 1988
Page 4
( -4 -) makes the final technical
recommendations; and
( -b -) whose recommendations or actions:
( -1 -) are in 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 ezigaged 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
Mr. Merwyn R. Markel
May 26, 1988
Page 5
generally not considered public employees.
(A) City clerks, other clerical staff, road
masters, secretaries, police officers, welfare
case workers, maintenance workers, construction
workers, detectives, equipment operators, and
recreation directors.
(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.
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 the classification
specifications must be reviewed. 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, 82 -008,
affirmed on appeal, 79 Pa. Commw. 491, 470 A.2d 659 (1984); and
Mumma v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982).
Also, in reviewing your question, the Commonwealth Court in
its ruling in Phillips, supra, at page 661, directs the
Commission to construe coverage of the Ethics Act broadly, rather
than narrowly. Based upon this directive and reviewing the
definition of "public employee" in the statue and the regulations
and opinions of this Commission, in light of your job functions
end the information available, it is clear 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.
In your capacity as a Human Relations Representative II, you
have the ability to recommend official action with respect to
subparagraph II within the definition of "public employee" as set
• forth in the Ethics Act, 65 P.S. 402. Specifically, you conduct
extensive investigations, you work out terms of conciliation as
to complaints, you supervise investigations, you provide
technical assistance and apprise investigators of changes in the
law and policy, you use legal expertise and medical knowledge in
analyzing case materials; you evaluate evidence and make
recommendations as to the merits of complaints, you determine
Mr. Mervyn R. Markel
May 26, 1988
Page 6
proper equitable and monetary relief where appropriate, you
participate in pre - hearing conferences; testify at hearings and
sometimes in court and you reform such other duties as are
required. These activities fall within the definition of public
employee as contained in the regulations of the Commission 51 Pa.
Code 1.1. Under these circumstances and given your duties and
responsibilities as outlined above, you are a "public employee"
as that term is defined in the State Ethics Act. As noted in
your letter, the State Ethics Commission specifically determined
in the Human Relations Representatives, Opinion 86 -011 that a
Human Relations Representative II was a public employee under the
Ethics Act required to file the Statement of Financial Interests.
Regarding your statement that the Ethics Commission was scheduled
to go out of existence on December 31, 1987, pleaee be advised
that the Commission has been given an extension of its operation
pending consideration of House Bill 1733 of the 1987 session.
The extension of the State Ethics Commission occurred in December
of 1987 through a leadership resolution of the General Assembly
of the Commonwealth of Pennsylvania. As to your question as to
whether any new regulations have been established since July 3rd
of 1982, there have been new regulations which have been issued
but the regulations concerning those individuals who are public
employees required to file the Statement of Financial Interests
have not been amended. As noted, those regulations can be found
in 51 Pa. Code S1.1.
Conclusion: Based upon the above discussion, you are to be
considered a "public employee" in your capacity as a Human
Relations Representative II with the HRC. Accordingly, you must
file a Statement of Financial Interests for each year in which
you hold the position outlined above and for the year fallowing
your termination of this service.
If you have not already done so, a 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.
Mr. Merwyn R. Markel
May 26, 1988
Page 7
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 former Opinion from the
Commission will be issued. Any such appeal must be made, in
writing, to the Commission within 15 days of sarvice of this
Advice pursuant to 51 Pa. Code §2.12.
Sincerely,
(,._$,,)\ 101)(14
Vincent J. Dopko,
General Counsel