HomeMy WebLinkAbout88-595 GrantMr. Leon Grant
300 Liberty Avenue
11th Floor
Pittsburgh State Office Bldg.
Pittsburgh, PA 15222
Dear Mr. Grant:
STATE ETHICS COMMISSION;
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
June 29, 1988
88 - 595
Re: Statement of Financial Interests, Public Employee, Human
Relations Representative II
This responds to your Financial Disclosure Appeal forme dated
May 16, 1988, which will be treated as a request for 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 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 consider the question presented,
the duties and responsibilities associated with your position CE
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 tha
conciliation of related problems within a community.
All employee in this class is responsible for working in
the area of compliance by conducting highly complex and
sensitive investigations of complaints of alleged
f:. Leon Gran':
June 29, 1988
Page 2
discrimination against individuals or minority groups in
employment, education, housing or public accommodations; or
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
;sere is clear. Specifically, whether 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 `ry 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. Leon Grant
June 29, 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 Leon Grant
June 29, 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 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 principles
Mr. Leon Grant
June 29, 1988
Page 5
(iv) Persons in the positions listed below
are generally not considered public
employees.
(A) City clerks, other clerical staff, road
masters, secretaries, police officers,
welfare case workers, maintenance workers
construction workers, detectives, equ_pment
operators, and recreation directors.
(B) Law clerks, court cri°ls, court
reporters, probation officers, security
guards, and writ servers.
C) School teachers and zlerks 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
dr :t es and obligations as described in the classification
-paciff.cations must be reviewed. The inquiry necessarily focuses
o the job itself and not on the individual incumbent in the
position the variable functions of the position, or the manner
.�. whi.¢..h a particular individual occupying a position may carry
out those functions. See McClure, 83 -001; Phillips,, 82 -008,
Pffirmed 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 this
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
and 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; the activities of a Human Relations Representative II
do have an economic impact greater than de minimus on the
interests of any person.
However, you recite that your job functions do not fall
within the statutory definition of "public employee "; that evsry
recommendation you make must be cleared with a supervisor,
attorney or regional director and that your recommendations are
never binding but are considered informal subject to the higher
level judgement.
Mr. Leon Grant
June 29, 1988
Page 6
As indicated above, the determination is not only based upon
the particular job description of an individual but also upon the
job classification /specification of the position itself. The job
classification /specification for a Human Relations Representative
II indicates inter alia that an individual works in compliance
involving sensitive investigations regarding complaints which
allege discrimination and conducts extensive investigations
concerning all facets of the complaints including but not limited
to arriving at terms of conciliation and presenting same to the
respondent. The activities in you classification specification
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. The State Ethics Commission
specifically determined in the Human Relations Representatives,
Opinion 86 -011 that a Human Relations Representative II was a
aublic employee under the Ethics Act required to file the
Statement of Financial Interests.
Conclusion: Based upon the above, 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 following 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.
such.
This letter is a public record and will be made available as
Mr. Leon Grant
Jur 29, 1988
Page '7
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 service of this
Advice pursuant to 51 Pa. Code S2.12.
Sincerely,
Vincent J. Dopko,
General Counsel