HomeMy WebLinkAbout97-584 JonesSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
June 16, 1997
William G. Jones
Pennsylvania Human Relations Commission
711 State Office Building
Broad and Spring Garden Streets
Philadelphia, PA 19130 -4088
Re: Pennsylvania Human Relations Commission; Representative I; Probationary
Period; Public Employee; FIS.
Dear Mr. Jones:
97 -584
This responds to your Financial Interest disclosure appeal dated May 13, 1997,
which will be treated as a request for advice from the State Ethics Commission.
Issue: Whether in your capacity as a probationary Representative I with the
Pennsylvania Human Relations Commission, hereinafter (PHRC), 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 your appeal, you state that you are under the
strict supervision of a supervisor who has final authority which is the controlling factor
as to economic impact. Since your Act dictates what remedy there is under the law,
you argue that you have no control to determine economic impact. You assert you
only make recommendations since you have no final authority on any aspect of your
work.
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. An employee
in this position is responsible for the following:
1. Intake assignments which involve receiving, analyzing, and interpreting
information which results in: assessing jurisdiction under the Pennsylvania
Human Relations Act (PHRA) and the Pennsylvania Fair Educational
Opportunities Act (PFEOA); interpreting the PHRA and PFEOA and the rules,
regulations and guidelines issued by the PHRC; interviewing persons; and
writing formal complaints.
Jones, 97 -584
June 16, 1997
Page 2
2. Investigate and conciliate complaints of unlawful discrimination which have
already been investigated partially, including: requesting additional data and
documents; conducting witness interviews; conducting on -site investigations;
preparation and service of subpoenas; and assisting the legal unit in deposition
preparation.
3. Investigate and conciliate complaints of unlawful discrimination which are newly
docketed, including: preparing cases for investigation; reviewing newly received
complaints; - drafting investigatory questionnaires and securing data and
documents necessary to begin investigation.
4. Conciliate cases where probable cause is found, including: conducting
conciliation conferences with respondents in an attempt to resolve cases prior
to public hearing; and drafting agreements, securing signatures and verifying
compliance.
5. Respond to public inquiries which includes making referrals to the Intake Unit
for new complaints.
6. Prepare case files for closing in accordance with Commission procedures and
EEOC standards for case closings.
7. Assist staff attorneys on pre- hearings and public hearings.
8. Provide data for input into PHRC computer on case progress.
9. Conduct fact finding conferences, including the negotiation of settlements and
drafting conciliation agreements.
10. Write formal case analysis which includes making statistical studies; reviewing
respondent's policies to determine compliance with relevant state and federal
law; making judgments of credibility in situations of conflicting evidence;
securing rebuttal evidence from complainant to insure complainant's due
process rights; and conducting exit interviews in no probable cause conclusions.
Discussion: The question to be answered is whether you, in your capacity as
a probationary Representative I for the Pennsylvania Human Relations Commission, 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
Jones, 97 -584
June 16, 1997
Page 3
65 P.S. §402.
(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.
The regulations of the State Ethics Commission similarly define the term public
employee as above with the following additional 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.
office.
(C) The individual is the supervisor of a highest level field
(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.
Jones, 97 -584
June 16, 1997
Page 4
51 Pa. Code §11.1.
(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.
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
Jones, 97 -584
June 16, 1997
Page 5
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 a Representative I, 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. These activities
fall within the definition of public employee as contained in the regulations of the
Commission in Section 11.1, subparagraph (4). 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. The Commission has
determined in Human Relations Representatives, Opinion 86 -01 1, that Human
Relations Representatives are "public employees" required to file the Statement of
Financial Interests under the Ethics Law.
Conclusion: You are to be considered a "public employee" in your capacity as
a probationary Representative I with the Pennsylvania Human Relations Commission.
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.
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.
erely,
Vincent . opko
Chief Counsel