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HomeMy WebLinkAbout91-563 FordMr. Fred L. Ford, Jr. P.O. Box 490 Tunkhannock, PA 18657 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 2, 1991 91 -563 Re: Claims Investigation Agent, DPW, Bureau of Child Support Enforcement, Division of Field Operations; Public Employee; FIS Dear Mr. Ford: This responds to your Financial Interest Disclosure Appeal dated April 24, 1991, which will be treated as a request for advice from the State Ethics Commission. Issue: You ask whether in your capacity as a Claims Investigation Agent with the Bureau of Child Support Enforcement, Field Operations Division of the Department of Public Welfare, hereinafter, "DPW ", you are to be considered a "public employee" as that term is defined in the Public Official and Employee Ethics Law, and therefore, whether you are required to file a Statement of Financial Interests. 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 Ethics Law and the regulations of this Commission. In order to review the question presented, we will briefly outline the duties and responsibilities associated with your position as contained in your job description and the classification specifications for this position. Your duties and responsibilities as set forth in these two documents, and your organizational chart are incorporated herein by reference. According to your job description, you function as a Field Agent for the Bureau of Child Support Enforcement. You are required to work closely with and coordinate the activities of various judicial and governmental agencies involved with the Child Support Program in an assigned geographic area. This includes providing assistance and guidance in completing and properly handling support referrals, representing the Department's interests in support conferences and hearings and Departmental Fair Hearings, clarifying and interpreting policy, monitoring case work loads to ensure efficient and timely Mr. Fred L. Ford Jr. August 2, 1991 Page 2 handling of cases, preventing backlogs and identifying and initiating enforcement actions for support collection and paternity establishment. In dealing with the public and other judicial /government personnel and officials, you are to assure the effectiveness of the program; to see that optimum court orders or modifications are obtained and assigned to DPW; and to see that obligations due to the Commonwealth are protected and satisfied. The duties of your position require that you be able to investigate, assemble and analyze data, and prepare the needed documentation for special projects and reports to effectively complete case assignments. You are required to conduct investigative interviews with AFDC applicants to obtain maximum information for the establishment of paternity /support. You are required to conduct modified parent locator services when applicable. You compute claims, collect and transmit money, process requests for refunds and identify previously undistributed collections for possible payment to DPW. You operate with a high degree of independence, reporting back to supervisory personnel only to make recommendations on assigned cases or to request guidance on the more highly complex or involved cases. Turning to your job specification, an employee in your class is considered to perform professional work and is assigned functions investigating and settling claims; recovering funds legally owed to the Commonwealth; prosecuting public assistance clients that fraudulently received benefits; conducting the technical and regulatory review of cases that are subject to departmental administrative fair hearings; and /or collecting, reviewing, analyzing, interpreting and explaining child support orders for the Department of Public Welfare. Work may include independent responsibility for the preparation of prosecution packages and testimony and the presentation of cases in civil and criminal proceedings to prosecute recipient fraud cases. Work involves applying federal and state mandates, policies and procedures in the child support enforcement, restitution and reimbursement activities by searching local court house records, county assistance office files and financial records of public assistance clients. Work also includes: reviewing claims referrals; collecting and analyzing information for determining feasibility for investigating, locating, encumbering and obtaining resources for the prosecution and settlement of claims against present and former public assistance clients, legally responsible individuals or organizations providing contracted services to welfare program clients; or establishing paternity and enforcing child support orders for individuals Mr. Fred L. Ford Jr. August 2, 1991 Page 3 responsible for dependent public assistance clients. Work may also include coordinating program activities with such other agencies as the Internal Revenue Service, Social Security Administration, Bureau of Employment Security, Bureau of Motor Vehicles, and county judiciary and domestic relations offices; and responding to inquiries or complaints associated with the programs administered through the Bureau of Child Support Enforcement. Duties may also involve the preparation of witnesses for recipient fraud cases; the coordination of cases scheduled for administrative hearings; and the technical review of decisions for impact on departmental policies and procedures. Work is performed in accordance with mandates, policies and procedures, requires discretion and judgment in conducting investigations, preparing cases and evidence and implementing reimbursement restitution or prosecution actions. Work is performed under the general direction of a supervisor who evaluates work performance through conferences, review of reports and results achieved in meeting established goals and objectives. Your duties and responsibilities may also include such other duties as set forth in the incorporated documents. Discussion: The question to be answered is whether you, in your capacity as a Claims Investigation Agent for DPW's Bureau of Child Support Enforcement, are to be considered a "public employee." The Ethics Law 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. 65 P.S. S402. "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in Mr. Fred L. Ford Jr. August 2, 1991 Page 4 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 ( -4 -) makes final technical recommendations; and ( -b -) whose recommendations or actions: Mr. Fred L. Ford Jr. August 2, 1991 Page 5 ( -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 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. Mr. Fred L. Ford Jr. August 2, 1991 Page 6 (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 §1.1. We must review 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 your job description and /or classification specifications, 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 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 your question, the Commonwealth Court 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 Law 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 your job functions and the information available to us, we must conclude that you are a "public employee" subject to the financial reporting and disclosure requirements of the State Ethics Act. It is clear that in your capacity as a Claims Investigation Agent for DPW's Bureau of Child Support Enforcement, you have the ability to recommend official action with respect to subparagraph 5 within the definition of "public employee" as set forth in the Ethics Law, 65 P.S. S402. In addition to recommending official action, you take official action in investigating; in representing DPW's interests in obtaining optimum support orders assigned to the Mr. Fred L. Ford Jr. August 2, 1991 Page 7 Department; and in ensuring that obligations due to the Commonwealth are protected and satisfied. Furthermore, an employee in your class also recommends and takes official action in investigating and settling claims; recovering funds legally owed to the Commonwealth; prosecuting public assistance clients that fraudulently received benefits; and conducting the technical and regulatory review of cases that are subject to departmental administrative fair hearings. You specifically work with a high degree of independence, reporting back to supervisory personnel only to make recommendations on assigned cases or to request guidance on the more highly complex or involved cases, and your job classification also designates independent responsibilities. These activities fall within the definition of public employee as contained in the regulations of the Commission in Section 1.1, subparagraph (B)(I) and (II). 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 Ethics Law. Indeed, given the nature of your highly responsible duties as a Claims Investigation Agent for DPW, your status as a "public employee" as defined under the Ethics Law is in complete accord with prior decisions of this Commission. See, Garlan, Opinion 89- 004 (Professional Conduct Investigator for the Department of State is a public employee required to file the Statement of Financial Interests; See also, Phillips v. Com., State Ethics Com'n, 79 Pa. Commw. 491, 470 A.2d 659 (1984) (Affirming the Commission's adjudication that a Claim Settlement Agent I for DPW is a public employee pursuant to the Ethics Act and required to file a Statement of Financial Interests). Conclusion: You are to be considered a "public employee" in your capacity as a Claims Investigation Agent with the Department of Public Welfare's Bureau of Child Support Enforcement. 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. Mr. Fred L. Ford Jr. August 2, 1991 Page 8 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. Sincerely, incent t. Dopko Chief Counsel fir, r. �.