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HomeMy WebLinkAbout93-581 SchmidtSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 13, 1993 Louise Anne D. Schmidt Department of Public Welfare Bureau of Blindness & Visual Services 206 Philadelphia State Office Building 1400 Spring Garden Street Philadelphia, PA 19130 93 -581 Re: Vocational Rehabilitation Counselor II; Department of Public Welfare, Bureau of Blindness and Visual Services; Public Employee; FIS. Dear Ms. Schmidt: This responds to your Financial Disclosure Appeal dated May 25, 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 obtaining information concerning applicant's physical or mental condition; arranging for expenditures associated with medical, psychological, physical or other evaluations as part of determining potential for rehabilitation; evaluating information, in conjunction with medical consultants, to ascertain Louise Anne D. Schmidt July 13, 1993 Page 2 potential for rehabilitation; arranging for expenditures for services needed to prepare applicants for employment; providing counseling services to assist applicants in social adjustments; providing counseling and instruction to clients to assist in adjustment to disabilities; providing the full range of vocational rehabilitation services; preparing case records and reports; serving as a resident expert to lower level counseling staff in the handling of unusual or extremely difficult case problems; performing a variety of administrative responsibilities such as serving as counselor coach, directing field work students, medical review functions, and office training; developing and coordinating community outreach efforts; providing on- the -job training to new or other subordinate level counselors; providing job placement services to disabled clients and contacting employers to enhance placement opportunities; maintaining and developing liaisons with referral sources and service providers to assure that potential vocational rehabilitation clients are identified and that programs address client needs; developing and approving vocational rehabilitation plans; and exercising independent judgment in using a wide variety of medical, social and vocational resources in achieving objectives. 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: (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 Louise Anne D. Schmidt July 13, 1993 Page 3 distinguished from administrative duties. 65 P.S. S402. 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 Louise Anne D. Schmidt July 13, 1993 Page 4 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, 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. Louise Anne D. Schmidt July 13, 1993 Page 5 (B) Law clerks, court criers, court reporters, probation officers, security guards and writ servers. (C) School teachers and clerks of the schools. 51 Pa. Code §11.1. 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. §402. Specifically, you arrange for expenditures for services; serve as resident expert to lower level counseling staff; provide supervision to new and subordinate level counselors; develop vocational rehabilitation plans; and develop community outreach efforts. 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 Louise Anne D. Schmidt July 13, 1993 Page 6 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 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. 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 513.2(h). ncerely, Jn Vincent ,T: Dopko Chief Counsel