HomeMy WebLinkAbout97-560 MazzeiDear Mr. Mazzei:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
April 22, 1997
Ronald S. Mazzei
627 Oaklynn Court
Pittsburgh, PA 15220
Re: Administrative Assistant; Public Employee; FIS.
97 -560
This responds to your letter dated April 15, 1997 by which you request an
advisory from the State Ethics Commission.
Issue: Whether in your capacity as an Administrative Assistant for a City, you
are to be considered a "public employee" as that term is defined in the Public Official
and Employee Ethics Law, where your job duties include inspecting and pricing
properties, negotiating the sale of properties, and managing city rental property.
Facts: You ask 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. Your duties and responsibilities, as set forth in your
job description, are as follows:
1. Assist in review and updating of sales classifications of city owned property.
2. Assist in development of new marketing strategies.
3. Coordinate and assist in the administration of various marketing programs.
4. Inspect and price properties, both structures and lots.
5. Show properties to interested buyers.
6. Negotiate the sale of properties.
7. Assist buyers in obtaining financing.
8. Market side yard Tots by contacting adjoining property owners, both by mail and
phone.
Mazzei, 97 -560
April 22, 1997
Page 2
9. Develop inventory of potential building sites and market same.
10. Develop and prepare advertising such as brochures, newspaper ads, fliers, price
lists, etc.
11. Manage city rental property (including city owned) including:
a. rent collections
b. repair authorizations
c. lease renewals
d. evictions
12. Coordinate requests for lien buy backs and sales.
13. Research discrepancies in inventory, i.e. parcels in City records but not County,
or in County records but not City, and follow -up on correction of records.
14. Act as liaison to CDC's, i.e. providing information on property for sale,
properties being sold in neighborhoods, etc.
15. Track, monitor and follow -up on compliance with rehabilitation standards.
16. Other duties as assigned or required.
It is your view that you perform only ministerial duties. Furthermore, you state
that you were told that you would not be given any suPervisory responsibilities.
There are two other individuals in your department with job descriptions similar
to yours who are not required to file Statements of Financial Interests; however, those
two individuals have different job titles. You state that according to your employer,
you are being required to file a Statement of Financial Interests because the City's law
department suggests that your position title is one that should be required to file. You
state that it is your understanding that the requirement to file a Statement of Financial
Interests is based upon certain criteria rather than a position title category.
Finally, you ask whether a City employer can require a person to file a
Statement of Financial Interests and make it a condition of employment, especially in
a case where the State determines that that person should not be required to file.
Discussion: The primary issue is whether, in your capacity as an Administrative
Assistant for a City, you are to be considered a "public employee" subject to the Ethics
Law and specifically the requirement to file Statements of Financial Interest. The
Ethics Law defines the term "public employee" 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;
Mazzei, 97 -560
April 22, 1997
Page 3
65 P.S. §402.
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 individuals who are
employed by the State or any political subdivision thereof in
teaching as distinguished from administrative duties.
(2)
(3)
(4)
(5)
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 Commonwealth or a political subdivision of the
Commonwealth in teaching as distinguished from administrative
duties.
Mazzei, 97 -560
April 22, 1997
Page 4
51 Pa. Code §11.1.
(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.
(B) Law clerks, court criers, court reporters, probation
officers, security guards and writ servers.
(C) School teachers and clerks of the schools.
Your status under the Ethics Law must be determined based upon these
provisions of the statute and the regulations of the Commission in Tight of your duties
and responsibilities as set forth in your job description. 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).
Mazzei, 97 -560
April 22, 1997
Page 5
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, the necessary conclusion is that you are a "public employee" subject to the
financial reporting and disclosure requirements of the Ethics Law.
It is clear that in your capacity as an Administrative Assistant, you have the
ability to take or 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 inspect and price properties, negotiate the sale of properties,
and manage city rental property. These duties in and of themselves are sufficient to
establish your status as a "public employee" subject to the Ethics Law, and no further
review is needed. These activities similarly fall within the definition of public employee
as contained in the regulations of the Commission in Section 1 1.1, subparagraph (ii).
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.
Turning to your other inquiries, you are correct that the determination of status
under the Ethics Law is based upon the duties and responsibilities which a person in
the position is authorized to perform rather than the job title. However, a review of
your duties and responsibilities clearly establishes that you are subject to the Ethics
Law.
Finally, the City certainly is free to impose more stringent requirements upon its
employees than the Ethics Law imposes, 65 P.S. §41 1, but, in your case, the City is
correct in its conclusion that you are required by the Ethics Law to file the form.
Conclusion: You are to be considered a "public employee" in your capacity as
an Administrative Assistant with a City. 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 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.
Mazzei, 97 -560
April 22, 1997
Page 6
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.
n erely,
Vincent op o
Chief Counsel