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HomeMy WebLinkAbout96-580 WalterEdwin P. Walter 15 Laurel Lane Reinholds, PA 17569 Dear Mr. Walter: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 9, 1996 96 -580 Re: Department of Public Welfare; State Hospital; Social Worker Manager; Public Employee; FIS. This responds to your Financial Interest Disclosure Appeal which has been treated as a request for advice by the State Ethics Commission. Issue: You ask whether in your capacity as a Social Worker Manager with Wernersville State Hospital, Department of Public Welfare (DPW), 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 as a Social Worker Manager with DPW 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 the job description and the classification specifications for this position. The duties and responsibilities, as set forth in these two documents are incorporated herein by reference. An employee in this position: manages and supervises social work services; uses independent judgment in the planning, controlling and implementing of programs suitable for patient needs; insures that social work services comply with the requirements of the Joint Commission and Medicare /Medical Assistance; plans, organizes and directs departmental work as to goals, creating and prioritizing projects and assigning, reviewing and evaluating subordinate work; controls departmental personnel by reviewing performance as well as interviewing, hiring or terminating; monitors departmental activity; and stimulates the development of subordinates. You assert the following: your filing would be discriminatory because other department heads do not file; you do not oversee, monitor or recommend approval as to contracts nor do you supervise any employees; you do not retain the authority to make final decisions; your duties do not fit within the definition of public employee; Walter, 96 -580 August 9, 1996 Page 2 your department does not have an operating budget; and you do not prepare or have any responsibility as to budget or financial statements. Discussion: The question to be answered is whether you, in your capacity as a Social Worker Manager for DPW, 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 individuals who are • employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. 65 P.S. §402. 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. Walter, 96 -580 August 9, 1996 Page 3 (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 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. Walter, 96 -580 August 9, 1996 Page 4 (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 § 1 1.1. The question you present must be reviewed under these provisions of the statute and the regulations of the Commission in Tight 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 Social Worker Manager, you have the ability to recommend official action with respect to subparagraphs 3, 4, and 5 within the definition of "public employee" as set forth in the Ethics Law, 65 P.S. §402. Specifically, you perform management and supervisory functions; you do planning, controlling and implementation of programs for patients; you plan, organize and direct departmental work; and you control departmental personnel. These activities fall within the definition of public employee as contained in the regulations of the Commission in Section 11.1, subparagraph (ii). 51 Pa. Code § 1 1.1. 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 the arguments you raise, any non - filing of others would not be discriminatory because those individuals, if public employees, would also have to file and any non - filing by them does not serve as a defense or excuse for your non - filing. Regarding the other arguments you proffer, the test for coverage is not limited by what you actually do but by what you have the power to do as set forth in your job description and classification specification. The functions and duties as delineated in your job descriptions fit within the definition and regulations as to public employees. Lastly, all that is required is that you meet any one of the criteria to be considered a public employee. Conclusion: You are to be considered a "public employee" in your capacity as a Social Worker Manger with DPW. 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 termination of this service. Walter, 96 -580 August 9, 1996 Page 5 If you have not already done so, a Statement of Financial Interests must be filed within 30 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 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 § 13.2(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. � cerely, Vincent J. Dopko Chief Counsel