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HomeMy WebLinkAbout93-567 Fuller• STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783-1610 ADVICE OF COUNSEL May 26, 1993 Michael L. Fuller, Special Agent Criminal Investigation and Prosecution Section 2490 Boulevard of the Generals Norristown, PA 19403 Dear Mr. Fuller: 93 -567 Re: Office of Attorney General, Special Agent II; Public Employee; FIS. This responds to the letter of May 18, 1993 from John J. Adams, in which advice was requested from the State Ethics Commission in connection with the Financial Interests Disclosure Appeal which you filed dated May 1, 1993. Issue: Whether an individual employed by the Office of Attorney General as a Special Agent II is to be considered a "public employee" or "public official" as that term is defined in the Public Official and Employee Ethics Law, and therefore, required to comply with the financial reporting and disclosure provisions of the State Ethics Law. Facts: You are a Special Agent II with the Criminal Investigation and Prosecution Section of the Attorney General's Office. On or about April 5, 1993, you received a Memorandum from L. Rinch Bowman, Director, Office of Management Services, which set forth various provisions of the Ethics Law and regulations relating to the definitions of public officials and public employees. Based upon the information provided, you filed a Financial Disclosure Appeal form claiming that you were not a public employee as defined by the Ethics Law and therefore, did not have to file a Statement of Financial Interests (FIS). Mr. Adams provided a copy of his letter of May 18, 1993 addressed to you informing you of his decision to forward this matter to the State Ethics Commission, the Memorandum of April 5, 1993 from L. Kinch Bowman, and a job description for a Special Agent II. These documents are incorporated herein by reference. Michael L. Fuller May 26, 1993 Page 2 A Special Agent II with the Office of. the Attorney General has the following duties and responsibilities: performs criminal investigative work in connection with the Commonwealth Attorneys Act, conducts criminal investigations, provides guidance and direction to less experienced agents, conducts surveillances, examines documents to detect illegal activity, collects and prepares evidence, interviews witnesses, prepares criminal complaints and search warrants, prepares written summary reports of investigative activity, appears in court, provides information for the preparation of news releases, and performs other duties as required. You do not believe that your duties and responsibilities would cause you to be considered a "public employee" as that term is defined. Accordingly, this Commission has been asked to review the question of whether you are a public employee subject to the financial reporting and disclosure requirements of the State Ethics Law. Discussion: The question to be answered is whether, in your capacity as a Special Agent II for the Criminal Investigation and Prosecution Section of the Attorney General's Office, you are to be considered a "public employee." The Ethics Law defines that term as follows: 65 P.S. §402. 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. Michael L. Fuller May 26, 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. Michael L. Fuller May 26, 1993 Page 4 (iv) Persons in the following positions are generally considered public employes: (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. (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. Michael L. Fuller May 26, 1993 Page 5 (C) School teachers and clerks of the schools. 51 Pa. Code 511.1. The question you present must be reviewed 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. 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 your job functions and the information available to us, the necessary conclusion 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 Special Agent II, you have 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. Specifically, conducting criminal investigations independently as a case agent leading a team of agents and providing guidance and direction to less experienced agents. These activities fall within the definition of public employee as contained in the regulations of the Commission in Section 11.1, subparagraph (ii)(A), (D), (E), (F), (H), and (iv)(D). 51 Pa. Code §11.1. 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. This Advice is consistent with prior Commission opinions. The Commission has ruled that a Professional, Conduct Investigator in the Department of State, Bureau of Professional and Occupational Affairs is a public employee and is required to file the Statement of Financial Interests. Les, Garlan, Opinion No. 89 -004. Conclusion: You are to be considered a "public employee" in your capacity as a Special Agent II with the Criminal Investigations and Prosecution Section of the Office of Attorney General. Accordingly, Michael L. puller May 26, Page 6 year in must file a Statement of Financal Interests above t and for each the r in you mus position outlined which you hold the p following your termination of this service• Statement of Financial done so, a St vice. This If you have not already days of this Ad report information of the Statement f Financial Interests would Y rep Statement of prior calendar y ear. lets defense 11 , and Pursuant to Section 7( this Advice is a complete initiated by the Commission, in any enforcement proceeding other civil or criminal all proceeding, of good faith conduct in any roviding the requestor has disclosedd truthfully in reliance on thhe e material P rial f a i ts and comma ac tted the on the Advice g This letter is .a public record and will be made available as such. you have any Finally, if you if y F ou disagree with this Advice or may request that the full Commission rev to challenge same, you appearance before the Cori will oe review this Advice. A personal anion from the Commission will bt issued. u d . scheduled and aal m st bep n wiitin • an • must be tssue An such a omission within 15 da s of the date of this Advice •ursuan t the ommi to 51 Pa. Code 413.2 h . ncerely, Vincent J. Dopko Chief Counsel