HomeMy WebLinkAbout93-577 BruceDear Mr. Bruce:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
•
ADVICE OF COUNSEL
July 6, 1993
James E. Bruce
Department of Public Welfare
Bureau of Blindness & Visual Services
G -10 Kossman Building
Pittsburgh, PA 15217
93 -577
Re: Vocational Rehabilitation Counselor II; Department of Public
Welfare, Bureau of Blindness and Visual Services; Public
Employee; FIS.
This responds to your Financial Disclosure Appeal dated June
9, 1993, which will be treated as a request for advice from the
State Ethics Commission.
Issue: You ask whether in your capacity as a Vocational
Rehabilitation Counselor II with the Department of Public Welfare,
Bureau of Blindness and Visual Services, 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 as contained in your job description and the
classification specifications for this position. Your duties and
responsibilities, as set forth in these two documents are
incorporated herein by reference. As an employee in this position
you are responsible for providing vocational rehabilitation
services to blind, visually impaired and deaf /blind persons. Your
duties include developing individualized written rehabilitation
programs; assisting clients during the implementation of services
by providing counseling and amending program services, as required,
in order to prepare clients for suitable employment; determining
and reviewing financial situations of clients to insure their
eligibility for services; authorizing and monitoring costs of
James E. Bruce
July 6, 1993
Page 2
services to insure that clients receive adequate services in
accordance with policies and contracts; assisting clients in
obtaining appropriate employment; practicing caseload management by
establishing priorities and attending supervisory conferences in
order to meet client needs; assuring compliance with regulations,
policies and guidelines; expanding services and resources by
seeking new training opportunities and contacting community service
agencies in order to extend services to the greatest number of
clients; and participating in knowledge and skill building by
reading current professional literature, attending seminars and
conferences, attending in- service and out - service training
functions. Further, in your position, you exercise close
supervision over your subordinates, you assign their workloads, and
you review their work through weekly conferences, statistical
reports, case record evaluations and field audits.
Discussion: The question to be answered is whether, in your
capacity as a Vocational Rehabilitation Counselor II for the
Department of Public Welfare, Bureau of Blindness and Visual
Services, you 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:
65 P.S. S402.
contracting or procurement;
administering or monitoring grants or
subsidies;
planning or zoning;
inspecting, licensing, regulating or
auditing any person; or
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
James E. Bruce
July 6, 1993
Page 3
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 E. Bruce
July 6, 1993
Page 4
(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
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.
Janes E. Bruce
July 6, 1993
Page 5
51 Pa. Code S11.1.
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 Vocational
Rehabilitation Counselor 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. S402. Specifically, you supervise subordinates, assign
workloads and review their work. You also develop rehabilitation
programs; determine financial situations of clients; authorize and
monitor costs of training and other services; manage caseloads;
assure compliance with regulations, policies and guidelines; and
expand services and resources by searching for new training
opportunities and contacting community service agencies. These
activities fall within the definition of public employee as
contained in the regulations of the Commission in Section 11.1,
subparagraphs (4)(ii)(A), (E), (F), (H), and (I). 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.
Finally, it is noted that this issue has been previously
decided by the full Commission in Rinehart- Pasda Opinion No. 92-
006. In that case, the Commission held that individuals in the
positions of Vocational Rehabilitation Counselor 1, Vocational
Rehabilitation Counselor 2, Vocational Rehabilitation Counselor for
the Deaf, Vocational Rehabilitation Counselor for Placement, and
Vocational Rehabilitation Supervisor are public employees and hence
are subject to the Ethics Law and are required to file Statements
James E. Bruce
July 6, 1993
Page 6
of Financial Interests.
Conclusion: You are to be considered a "public employee" in your
capacity as a Vocational Rehabilitation Counselor II with the
Department of Public Welfare, Bureau of Blindness and Visual
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
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 writinar 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,
e
ncent 7 Dopko
Chief Counsel