HomeMy WebLinkAbout93-620 LeardLori Leard
R.D. #2, Box 134A
Vandergrift, PA 15690
Dear Ms. Leard:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
• November 19, 1993
93 -620
Re: County Area Agency on Aging; Pennsylvania Department of Aging;
Aging Care Management Supervisor; Public Employee; FIS.
This responds to your letters dated October 29, 1993, and
November 10, 1993, in which you requested advice from the State
Ethics Commission.
Issue: You ask whether in your capacity as an Aging Care
Management Supervisor with Armstrong County Area Agency on Aging,
you are to be considered a "public employee" as that term is
defined in the Public Official and Employee Ethics Law, and if so,
whether you may submit the Financial Interest Statement to this
Commission or whether you must file it directly with your employer.
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 supervising the Protective Services Program
and ensuring compliance with Department of Aging directives,
policies and procedures. Your duties also include assigning
clients and work flow of staff assigned to the program; reviewing
and analyzing assigned workers' case records to determine quality
and completeness of rendered services; evaluating staff
performance; making recommendations for personnel actions; training
new staff; and planning and supervising the administration of the
programs.
Lori Leard
November 19,
Page 2
Discussion:
capacity as
County Area
employee."
1993
The question to be answered is whether, in your
an Aging Care Management Supervisor for the Armstrong
Agency on Aging, you are to be considered a "public
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:
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.
65 P.S. 5402.
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
Lori Leard
November 19, 1993
Page 3
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:
(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
Lori Leard
November 19, 1993
Page 4
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.
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. gee, 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
Lori Leard
November 19, 1993
Page 5
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 an Aging Care Management
Supervisor, 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 plan and supervise the administration of
programs, supervise and evaluate staff, and make recommendations as
to personnel. These activities fall within the definition of
public employee as contained in the regulations of the Commission
in Section 11.1, subparagraph (ii)(A), (E), (F), and (H). 51 Pa.
Code S11.1. 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.
As to your question regarding the place of filing the
Financial Interest Statement, Section 4(a) of the Ethics Law states
as follows;
Section 4. Statement of financial interests
required to be filed
(a) Each public official of the
Commonwealth shall file a statement of
financial interests for the preceding calendar
year with the commission no later than May 1
of each year that he holds such a position and
of the year after he leaves such a position.
Each public employee and public official of
the Commonwealth shall file a statement of
financial interests for the preceding calendar
Year with the department, agency, body or
bureau in which he is employed or to which he
is appointed or elected no later than May 1 of
each year that he holds such a position and of
the year after he leaves such a position. Any
other public employee. or public official shall
file a statement of financial interests with
the governing authority of the political
subdivision by which he is employed or within
which he is appointed or elected no later than
May 1 of each year that he holds such a
position and of the year after he leaves such
a position. Persons who are full -time or
Lori Leard
November 19, 1993
Page 6
such.
part -time solicitors for political
subdivisions are required to file under this
section.
65 P.S. §404(a) (Emphasis added).
Accordingly, the Financial Interest Statement must be filed
with your employer on or before May 1 of each year you hold your
current position and the year after you leave that position and
cannot be submitted directly to the State Ethics Commission.
Conclusion: You are to be considered a "public employee" in your
capacity as an Aging Care Management Supervisor with the Armstrong
County Area Agency on Aging. Accordingly, you must file a
Statement of Financial Interests with your employer 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
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. Anv such appeal must be in writing and must be receivwd at
the Commission within 15 days of the date of this Advice pursuant
to 51 Pa. Code 513.2(h).
i4 erely,
Vincent J. Dopko
Chief Counsel