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HomeMy WebLinkAbout93-553 SchwoyerSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 30, 1993 93 -553 James W. Schwoyer, Mayor Kutztown Police Department 45 Railroad Street Kutztown, PA 19530 Re: Sergeant of Police; Criminal Investigator; Public Employee; FIS. Dear Mr. Schwoyer: This responds to your letter dated April 6, 1993, in which you requested advice from the State Ethics Commission. Issue: Whether a Sergeant and Criminal Investigator are to be considered as "public employees" as that term is defined in the Public Official and Employee Ethics Law and whether they must file a Statement of Financial Interests. Facts: You question whether the activities and functions of Sergeant of Police and Criminal Investigator of the Kutztown Police Department (hereinafter "KPD ") fall within the definition of "public employee" as that phrase is defined in the Ethics Law and the regulations of this Commission. You also question whether the individuals in these positions must file the Statement of Financial Interests. In order to review the question presented, we will briefly outline the duties and responsibilities associated with each position as contained in the job description for each position. The duties and responsibilities of the positions, as set forth in the documents which you provided to us, are incorporated herein by reference. A Sergeant with the KPD has the following responsibilities: enforcing departmental rules and regulations; planning and directing Department activities; teaching, disciplining and supervising Department personnel; monitoring the quality and effectiveness of police services; answering all major calls and calls of a dangerous nature; assuming command and directing activities of other officers at the scenes of major incidents or unusual occurrences; receiving reports from officers; reporting James W. Schwoyer April 30, 1993 Page 2 e. r infractions of Depart3Meift = itules`; ' imvestigating all accidents involving Department personnel and equipment; transmitting orders and directions to subordinates; reporting to the Chief of Police; participating in on -job training of Department personnel; building morale of Department personnel; assuming duties and responsibilities of the Chief of Police; checking the efficiency of patrolmen; keeping thoroughly informed on all particulars concerning criminal and traffic activities; and keeping abreast of new developments and techniques in the police field through the training division of the Department and by attending conferences. A Criminal Investigator with the KPD has the following responsibilities: preventing crime; investigating criminal cases; detecting and arresting criminal offenders; performing all supervisory and command functions of supervisory and command personnel, in their absence, as it directly relates to investigations; acquiring a thorough knowledge of the criminal code and the elements that constitute criminal acts and violations of various code sections; carrying out of investigations, not necessarily of a criminal nature, that might be requested by other governmental agencies; submitting necessary reports to the Chief of Police; and submitting proper forms and preparing cases for court. Discussion: The question to be answered is whether a Sergeant or Criminal Investigator for the Kutztown Police Department ( "KPD ") is to be considered a "public employee." The Ethics Law defines that term as follows: 65 P.S. S402. 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 minimis nature on the interests of any person.. "Public employee" shall not include individ- uals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. James W. Schwoyer April 30, 1993 Page 3 The regulations of the State Ethics Commission similarly define the term public employee as above with the additional following criteria: (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of "public employee ": (A) The individual normally performs his responsibility in the field without onsite supervision. (B) The individual is the immediate supervisor of a person who normally performs his responsibility in the field without onsite supervision. (C) The individual is the supervisor of a highest level field office. (D) The individual has the authority to make final decisions. (E) The individual has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions. (F) The individual prepares or supervises the preparation of final recommendations. (G) The individual makes final technical recommendations. (H) The individual's recommendations or actions are an inherent and recurring part of his position. (I) The individual's recommendations or actions affect organizations other than his own organization. (iii) 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. (iv) Persons in the following positions are generally considered public employes: James W. Schwoyer April 30, 1993 Page 4 51 Pa. Code 511.1. (A) Executives tnd-speqtia3; 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. (D) Engineers, managers and secretary - treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, administrative officers, housing and building inspectors, investigators, auditors, 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 superintendents, assistant superintendents, school business managers and principals. (G) Persons who report directly to heads of executive, legislative and independent agencies, boards and commissions except clerical personnel. (v) Persons in the following positions are generally not considered public employes: (A) City clerks, other clerical staff, road masters, secretaries, police officers, maintenance workers, construction workers, 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. The question you present must be reviewed under these James W. Schwoyer April 30, 1993 Page 5 provisions of the statute and; he: regulations of the Commission in light of the duties and obligations as described in the job descriptions, under which a Sergeant or Criminal Investigator operates. 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 Phillips v. State Ethics Commission, 79 Pa. Commw. 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 that coverage of the Ethics Act be construed 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 the job functions and the information available to us, the necessary conclusion is that a Sergeant and Criminal Investigator are "public employees" subject to the financial reporting and disclosure requirements of the State Ethics Act. It is clear that in the capacity of Sergeant, a person has the ability to recommend official action with respect to subparagraphs 4 and 5 within the definition of "public employee" as set forth in the Ethics Law, 65 P.S. 5402. The Chief of Police is unquestionably a public employee. Anyone who assumes the duties and responsibilities of the Chief of Police would also be a public employee. Under these circumstances and given the duties and responsibilities as outlined above, a Sergeant with the KPD is a "public employee" as that term is defined in the Ethics Law. Pursuant to Section 516.1 of the documents provided, the Sergeant shall assume the duties and responsibilities of his Chief of Police whenever instructed or required to do so. These activities fall within the definition of public employee as contained in the regulations of the Commission in Section 11.1, subparagraphs (ii) and (iv). 51 Pa. Code 11.1. Under these circumstances and given the duties and responsibilities as outlined above, a Sergeant with the KPD is a "public employee" as that term is defined in the Ethics Law. It is clear that in the capacity of Criminal Investigator, a person has the ability to recommend official action with respect to subparagraphs 4 and 5 within the definition of "public employee" as set forth in the Ethics Law, 65 P.S. 5402. A person in a supervisory and command position would be a public employee. Anyone who assumes the supervisory and command functions would also be considered a public employee. Pursuant to Section 700.3 of the documents provided, in the absence of supervisory personnel, the Criminal Investigator, when at the scene of a crime in which he was called to or when actively engaged in a criminal investigation, shall perform all of the supervisory and command functions of said James W. Schwoyer April 30, 1993 Page 6 supervisor and command personnel as they directly relate to his investigation. These activities fall within the definition of public employee as contained in the regulations of the Commission in Section 11.1, subparagraphs (ii) and (iv). 51 Pa. Code 11.1. Under the circumstances and given the duties and responsibilities as outlined above, a Criminal Investigator with the KPD is a "public employee" as that term is defined in the Ethics Law. Conclusion: Persons in the positions of Sergeant and Criminal Investigator with the Kutztown Police-Department ( "KPD ") are to be considered "public employees." Accordingly, persons in those positions must file a Statement of Financial Interests for each year in which the position is held and the year following termination of such position. If not already done, 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. Pursuant to Section 7(11), 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 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 §13.2(h). Vincent J. Dopko Chief Counsel