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HomeMy WebLinkAbout95-583 HowellSteven Howell, Esquire Attorney at Law 2929 Gettysburg Road Camp Hill, PA 17011 Dear Mr. Howell: July 17, 1995 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL 95 -583 Re: Attorney III; Department of Labor and Industry; Bureau of Worker's Compensation; Public Employee; FIS. This responds to Anniken U. Davenport, Esquire's Financial Interest disclosure appeal, which will be treated as a request for advice from the State Ethics Commission. Issue: Whether under the Public Official and Employee Ethics Law an Attorney III, formerly employed by the Department of Labor and Industry (L &I), was a public employee required to file a Financial Interest Statement. Facts: From January 1, 1994, to July 7, 1994, Ms. Anniken U. Davenport (Davenport) was an Attorney III with the Bureau of Worker's Compensation, Labor and Industry (L &I). Since Davenport claims she was wrongfully discharged on July 7, 1994, she has brought suit against the Commonwealth and various individuals. Due to the pending litigation, Davenport objects to providing the Commonwealth or the other defendants any information not required by the Pennsylvania Rules of Civil Procedure regarding discovery. Notwithstanding Davenport's objection, she states that from January 1, 1994, to the present time she has not represented, with promised or actual compensation, any person, corporation, or partnership on any matters before the governmental body with which she was associated from January 1, 1994 to July 7, 1994. The classification /specification for an Attorney III together with a generic job description for an attorney in the Workers' Compensation Bureau of L &I have been obtained which are incorporated herein by reference. The classification /specification describes the Attorney III position as advanced non - supervisory professional legal work performing highly responsible legal duties with personal responsibility for difficult, novel and important Howell, Steven, Esquire, 95 -583 July 17, 1995 Page 2 legal matters such as conducting high impact /complex litigation, possibly involving large sums of money with broad Commonwealth implications. The generic job description lists the following duties: representing the Bureau in litigation as to the Supersedeas (Injury) Fund or under the Occupational Disease Act; investigating/ prosecuting employers as to violations of Section 305 of the Workers' Compensation Act; representing the Bureau in administrative proceedings relative to violations of the Workers' Compensation Act; representing the Bureau in bankruptcy proceedings filed by employers where workers' compensation benefits may be secured by bonds; representing the Bureau in special litigation; serving as a legal advisory to the Bureau regarding government operations and interaction as to other agencies; and advising as to administrative adjudicative functions of the Bureau. Discussion: The question to be answered is whether Anniken U. Davenport, Esquire, in her capacity as an Attorney III for L &I, was 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. The regulations of the State Ethics Commission similarly define the term public employee as above with the additional following criteria: Howell, Steven, Esquire, 95 -583 July 17, 1995 Page 3 (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. (1) 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 Howell, Steven, Esquire, 95 -583 July 17, 1995 Page 4 51 Pa. Code §11.1. 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. (C) School teachers and clerks of the schools. Howell, Steven, Esquire, 95 -583 July 17, 1995 Page 5 The question Ms. Davenport presents must be reviewed under these provisions of the statute and the regulations of the Commission in light of her duties and obligations as described in her job description and /or classification specifications, under which she operated. 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 her 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 Ms. Davenport's job functions and the information available to us, the necessary conclusion is that she is a "public employee" subject to the financial reporting and disclosure requirements of the State Ethics Act. It is clear that in Ms. Davenport's capacity as an Attorney III, she had the ability to recommend official action with respect to subparagraph (5) within the definition of "public employee" as set forth in the Ethics Law, 65 P.S. §402. These activities fall within the definition of public employee as contained in the regulations of the Commission in Section 11.1, subparagraph (iv). 51 Pa. Code §11.1. Under these circumstances and given her duties and responsibilities as outlined above, she was a "public employee" as that term is defined in the Ethics Law. Lastly, the Pennsylvania Supreme Court in Maunus v. Commonwealth State Ethics Commission, 518 Pa. 592, 544 A.2d 1324 (1988), rejected various constitutional arguments raised and upheld the Financial Interest Statements filing requirements of the Ethics Law as to Commonwealth employed attorneys. Conclusion: Ms. Davenport was considered a "public employee" in her capacity as an Attorney III with L &I. Accordingly, she must file a Statement of Financial Interests for each year in which she held the position outlined above and for the year following the termination of this service. 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 Howell, Steven, Esquire, 95 -583 July 17, 1995 Page 6 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa .Code 513.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery-service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. erely, Vihcent J. Dopko Chief Counsel