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HomeMy WebLinkAbout98-564 MangoniDelores M. Mangoni 1002 Peach St. Erie, PA 16501 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 28, 1998 98 -564 Re: Public Employee; FIS; Field Personnel Officer I. Dear Ms. Mangoni: This responds to your Financial Interest disclosure appeal, which will be treated as a request for advice from the State Ethics Commission. Issue: Whether as a Field Personnel Officer 1 with the Erie County Assistance Office of the Department of Public Welfare, hereinafter "the Department," you would be considered a "public employee" subject to the Public Official and Employee Ethics Law and the Regulations of the State Ethics Commission, and particularly, the requirements for filing Statements of Financial Interests. Facts: You seek a determination as to whether, in your capacity as a Field Personnel Officer 1 with the Erie County Assistance Office of the Department of Public Welfare, you are a "public employee" subject to the Public Official and Employee Ethics Law (the "Ethics Law ") and the Regulations of the State Ethics Commission. You specifically question whether you are required to file Statements of Financial Interests. Copies of your job description, job classification specifications, organizational chart and essential job functions have been obtained and are incorporated herein by reference. Your duties and responsibilities include the following, in part, from your job description: administer the personnel program and supervise the personnel office; review all job descriptions, prepare the CAM's for clerical positions and required technical evaluations for other positions; provide information for audit reviews and conduct orientation sessions for new employees; serve in an advisory capacity on committees which are established to interview and rank present employees and rank candidates according to procedures; meet as Labor Relations Coordinator with local stewards and business agents to determine whether contract violations have occurred and whether there can be resolution prior to the institution of grievance procedures; attend hearings as necessary; submit forms relating to health and insurance matters; administer the management benefits program; act as the affirmative action officer; serve as a consultant on the safety committee; request travel advances for employees as well as oversee the repayment of these advances and process travel expense vouchers; supervise clerical employees in the personnel office and evaluate their Mangoni, 98 -564 May 28, 1998 Page 2 performance; and perform other various duties and responsibilities. The essential job functions for a Field Personnel Officer I list the following duties and responsibilities: Instructs Personnel Assistant 2 and Clerk Typist 2 in policies and procedures. Supervises and completes performance evaluation ratings for subordinates. Performs constructive, job - related counseling. Reviews and evaluates work of subordinates to monitor for accuracy and timeliness. Ensures appropriate training of staff to promote proficiency. Gathers, interprets, and analyzes material in order to prepare reports. - Monitors and evaluates office procedures to ensure total utilization of staff and meeting clients needs. Learns all aspects of the office operations. Communicates with staff, co- workers and public to provide and retrieve information. Prepares communication, job descriptions, performance evaluations, reports, memos, and correspondence. Develops and implements in -house policies and procedures. Reviews and comments on reports concerning office operations. Operates office equipment such as personal computers, video display terminal keyboard and monitor, copy machines, etc. Interacts with staff in various situations /settings that may be stressful /difficult. Discussion: 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; (2) administering or monitoring grants or subsidies; (3) planning or zoning; Mangoni, 98 -564 May 28, 1998 Page 3 65 P.S. §402. (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. The regulations of the State Ethics Commission similarly define the term "public employee" and set forth the following additional criteria: (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of "public employe ": (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. Mangoni, 98 -564 May 28, 1998 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. Status as a "public employee" subject to the Ethics Law is determined by applying the above definition and criteria to the position held. The focus is necessarily upon the position itself, and not upon the individual incumbent in the position, the variable functions of the position, or the manner in which a particular individual occupying the position may carry out those functions. See Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Commw. Ct. 1984); and Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982). Furthermore, the Commonwealth Court of Pennsylvania has directed that coverage under the Ethics Law be construed broadly and that exclusions under the Ethics Law be construed narrowly. See, Phillips, supra. Based upon the above judicial directives, the provisions of the Ethics Law, the State Ethics Commission Regulations, and the opinions of the State Ethics Commission, in light of your duties and responsibilities, 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 a Field Personnel Officer 1, you have the ability to take or recommend official action with respect to subparagraph 5 within the Mangoni, 98 -564 May 28, 1998 Page 5 definition of "public employee" as set forth in the Ethics Law, 65 P.S. §402. Specifically, you supervise the personnel office, perform ranking of candidates according to set procedures, ascertain whether there are contract violations as Labor Relations Coordinator, and supervise clerical employees who work in the personnel office. In addition, the essential job functions indicate that you instruct certain personnel, supervise and complete performance evaluation ratings, perform counseling, review and evaluate work of subordinates, ensure training of staff, monitor and evaluate office procedures, develop and implement in -house policies and procedures, and review and comment as to office operation reports. These activities would also meet the criteria for determining your status as a public employee under the Regulations of the State Ethics Commission, specifically at 51 Pa. Code §11.1, "public employee," subparagraph (ii). Therefore, you are a "public employee" subject to the Ethics Law and you are required to file Statements of Financial Interests pursuant to the Ethics Law. Conclusion: In your capacity as a Field Personnel Office 1 with the Erie County Assistance Office of the Department of Public Welfare, you are a "public employee" subject to the Public Official and Employee Ethics Law and the Regulations of the State Ethics Commission. Accordingly, you must file a Statement of Financial Interests for each year in which you hold the aforesaid position and for the year following your termination of such service. If you have not already done so, a Statement of Financial Interests must be filed within 30 days of this Advice. 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. rely, incent Dop Chief Counsel