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HomeMy WebLinkAbout99-573 MiracleJo Marie Miracle 3520 Forbes Ave. Pittsburgh, PA 15213 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL July 8, 1999 FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state.pa.us 99 -573 Re: Public Employee; FIS; Vocational Rehabilitation Counselor 1; Office of Social Programs; Department of Public Welfare. Dear Ms. Miracle: This responds to your Financial Interest Disclosure Appeal dated June 1, 1999, which will be treated as a request for advice from the State Ethics Commission. Issue: Whether a Vocational Rehabilitation Counselor 1 with Office of Social Programs, Department of Public Welfare, is a "public employee" subject to the Public Official and Employee Ethics Act (the "Ethics Act ") and the Regulations of the State Ethics Commission, and particularly, the requirements for filing Statements of Financial Interests. Facts: You worked for two months for the Blindness and Visual Services in 1998. You state that you had no authority to recommend, select, or authorize any plan, any purchase or any service for a client. You were a trainee during the entire period of employment and you were only assigned a limited caseload a few days before leaving. You made one field visit accompanied by your supervisor. All work was thoroughly reviewed by a supervisor. You state that none of the actions listed in 6B, including the criteria in (a) and (b) for a public employee applied to you during your employment. Since leaving a year ago, you state you have no income or financial interests that would meet the requirements for reporting on the Statement of Financial Interests form. You seek a determination as to whether, in your capacity as a Vocational Rehabilitation Counselor 1 with Office of Social Programs, you are a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. §1102; 51 Pa. Code §11.1. You specifically question whether you are required to file Statements of Financial Interests. Copies of the job classification specifications which sets forth the duties and responsibilities for your position and organizational chart have been obtained and are incorporated herein by reference. Discussion: The Ethics Act defines the term "public employee" as follows: Miracle, 99 -573 July 8, 1999 Page 2 65 Pa.C.S. §1102. Section 1102. 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. The term shall not include individuals who are employed by this Commonwealth 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. Miracle, 99 -573 July 8, 1999 Page 3 (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. (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. Status as a "public employee" subject to the Ethics Act 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 Miracle, 99 -573 July 8, 1999 Page 4 Pennsylvania has directed that coverage under the Ethics Act be construed broadly and that exclusions under the Ethics Act be construed narrowly. See, Phillips, supra. The Commission specifically addressed the filing status of the position of a Vocational Rehabilitation Counselor I in Rinehart- Pasda, Opinion 92 -006 and concluded that persons in that position are required to file Financial Interests Statements: As to the position of a Vocational Rehabilitation Counselor I, this is described as entry level professional work in the field of vocational rehabilitation of persons with disabilities with the employee being able to select, prepare and follow a rehabilitation plan for employment. The employee exercises independent judgement in using a wide variety of medical, social and vocational resources. The individual visits and supervises facilities to ensure an understanding of agency objectives as well as developing a positive working relationship. The individual arranges for medical, psychological, psychiatric, physical or other evaluations and evaluates information with a medical consultant as well arranges for services needed to prepare the disabled applicant for employment. The individual maintains, evaluates and documents progress and makes appropriate rehabilitation plan amendments as needed. The individuals in the position of the Vocational Rehabilitation Counselor I meet the first and fifth criteria of the statutory definition of public employee as well as subsection (B)(II) of the Regulation as to public employee. Id at 15 Based upon the above judicial directives, the provisions of the Ethics Act, the State Ethics Commission Regulations, the opinions of the State Ethics Commission, and Rinehart - Pasda, supra, 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 Act. Conclusion: In your capacity as a Vocational Rehabilitation Counselor 1 with Office of Social Programs, you were a "public employee" subject to the Public Official and Employee Ethics Act and the Regulations of the State Ethics Commission. Accordingly, you must file a Statement of Financial Interests for each year in which you held 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 1107(11), an 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, provided 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 Miracle, 99 -573 July 8, 1999 Page 5 to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a forma/ 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, tJt Vincent J. [3opko Chief Counsel ardAJ