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HomeMy WebLinkAbout88-639 GarlanMr. Joseph Garlan R.D. #1, Box 262A West Pittston, PA 18643 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 26, 1988 88 -639 Re: Professional Conduct Investigator, Public Employee, FIS Dear Mr. Garlan: Your financial disclosure appeal form dated May 4, 1988, has been received by the State Ethics Commission and will be treated as a request for advice. Issue: You ask whether in your capacity as a Professional Conduct Investigator with the Department of State, 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 address the question presented, a review must be made of the duties and responsibilities associated with your position as contained in your job description and the classification specifications for this position which are incorporated herein by reference. Your duties and responsibilities, as set forth in the classification specifications are as follows: This is journey level specialized investigative work in detecting violations of the conduct standards of the several Commonwealth professional and occupational licensing boards and the Bureau of Professional and Occupational Affairs which regulate the technical and specialist licensure areas of the overall health delivery system in an assigned geographical area of the state. Mr. Joseph Garlan October 26, 1988 Page 2 An employe in this class travels in the performance of a variety of assignments in investigating complaints, allegations, and /or incidents of violations of professional and occupational conduct standards involving physicians, chiropractors, physical therapists, podiatrists, osteopaths, dentists, psychologists, nurses, and medical practitioners, including teachers of medicine, pharmacists, nursing home administrators, and veterinarians. Work involves interviewing professional, technical and administrative personnel and examining, reviewing and /or extracting information from technical records and correspondence, including legal, medical, and court reports and developing and presenting evidence. Work includes initiating and defining special projects under the guidance of the respective boards. Work also includes interviewing complaints, licensees, members of the general public and Federal, state and local officials to obtain facts concerning alleged violations of personal and professional conduct. Employes are required to prepare objective, factual reports of findings bases on the investigation. Important considerations in this work are objectivity, judgment, discretion, and a high degree of technical expertise in ascertaining and presenting findings. Work is performed with considerable independence and is reviewed by a regional director for adherence to established procedures. Final reports are submitted to the respective state board responsible for licensing and overseeing practitioners in these areas. Discussion: As set forth above, the question to be answered here is clear. Specifically, are you, in your capacity as a Professional Conduct Investigator serving with the Department 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 Mr. Joseph Garlan October 26, 1988 Page 3 (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. 65 P.S. S402. "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished f r o m administrative duties. 65 P.S. S402. 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; Mr. Joseph Garlan October 26, 1988 Page 4 ( -3 -) prepares or supervises the preparation of final recommendations; or ( -4 -) makes final technical recommendations; and ( -b -) actions: whose recommendations or ( -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. (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 Mr. Joseph Garlan October 26, 1988 Page 5 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 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 clerk of the schools. 51 Pa. Code X1.1. The question you present under these provisions of the statute and the regulations of the Commission will be reviewed in light of your duties and obligations as described in your 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, Opinion 83 -001; Phillips, Opinion 82- 008, affirmed on appeal, 79 Pa. Cmwlth. 491, 470 A.2d 659 (1984); and Mummau 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, and conversely, directs that exclusions from the Ethics Act should be narrowly construed. Based upon this Mr. Joseph Garlan October 26, 1988 Page 6 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, the conclusion must be 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. It is clear that in your capacity as a Professional Conduct Investigator you have the ability to recommend official action with respect to subparagraph B(I) within the definition of "public employee" as set forth in the Ethics Act, 65 P.S. 5402. Specifically, the classification specifications provides that you investigate complaints and possible violations of the professional and occupational standards, that you interview professional, technical and administrative personnel together with examining various documents as well as interviewing complainants, licensees, members of the general public and governmental officials. You are further required to prepare objective factual report findings and most importantly, the work is performed with considerable independence, subject to review by the Regional Director, with consideration being given to objectivity, judgment, discretion in a high degree of technical expertise in your work product. 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, the conclusion must be that you are a "public employee" as that term is defined in the State Ethics Act. Conclusion: Based upon the above discussion, you are to be considered a "public employee" in your capacity as a Professional Conduct Investigator with the Department. 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 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 Mr. Joseph Garlan October 26, 1988 Page 7 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. Sincerely, Vincent`. Dopko, General Counsel