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HomeMy WebLinkAbout93-575 DoughertyMr. Thomas J. Dougherty 645 South 26th Street Harrisburg, PA 17111 Re: Parole Supervisor; Board of Probation w s :±fir t ie It STATE ETHICS COMMISSION 309 FINANCE BUILDING 'P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 25, 1993 93 -575 Bureau of Institutional Parole Services; and Parole; Public Employee; FIS. Dear Mr. Dougherty: This responds to your letter dated June 17, 1993, in which you appeal the determination of the Board of Probation and Parole dated June 7, 1993. That determination denied your initial Financial Disclosure Appeal dated May 28, 1993. Your appeal will be treated as a request for advice from the State Ethics Commission. Issue: You ask whether in your capacity as a Parole Supervisor with the Board of Probation and Parole, you are to be considered a "public employee" as that term is defined in the Public Official and Employee Ethics Law. 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. Your duties and responsibilities, as set forth in the Memorandum to you from Thomas A. Marshall, Director, Division of Personnel, dated June 7, 1993, are incorporated herein by reference. You prepare and supervisor the preparation of final recommendations as to the paroleability of inmates. The recommendations concerning the paroleability of inmates in state correctional institutions are made by you and your subordinates to the Board with regard to your personal judgment of the desirability of said action. These recommendations are based on analysis and evaluation of numerous factors including the behavior of inmates while incarcerated, the participation of inmates in various treatment and vocational programs and the quality of the parole plan. Further, as an Institutional Parole Supervisor, you are a supervisor at the highest level field office within the Bureau of Institutional Parole Services. June 25, 1993 Page 2 Discussion: The question to be answered is whether you, in your capacity as a Parole Supervisor for the Board of Probation and Parole, Bureau of Institutional Parole Services, are to be considered a "public employee." The Ethics Law defines that term as follows: 65 F.S. 5402 . 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. 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. June 25, 1993 Page 3 (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 fin al recommendations. (G) The individual makes final teahnica - -1 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: (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, June 25, 1993 Page 4 51 Pa. Code 511.1. 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 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 June 25, 1993 Page 5 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 Parole Supervisor, you have the ability to recommend official action with respect to subparagraph (4) and (5) within the definition of "public employee" as set forth in the Ethics Law, 65 P.S. §402. Specifically, you use your own judgment without onsite supervision and make recommendations directly to the Board concerning the paroling of inmates. You supervise others in the preparation of recommendations to the Board. You independently evaluate various factors in making such recommendations. These decisions not only directly affect the inmates, but also the Department of Corrections. These activities fall within the definition of public employee as contained in the regulations of the Commission in Section 11.1, subparagraphs (ii)(A), (C), (E), (F), (H), and (I), and (iv)(G). 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. Conclusion: You are to be considered a "public employee" in your capacity as a Parole Supervisor with the Board of Probation and Parole, Bureau of Institutional Parole Services. 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. 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 June 25, 1993 Page 6 review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Anv such appeal must be in w4tinq and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 513.2(h). 'ncerely, y—vir\ ( Vincent Dop o Chief Counsel