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HomeMy WebLinkAbout82-008 PhillipsMr. Robert J. Phillips c/o David P. Brown, III, Esq. Brown & Hepburn First Pennsylvania Building 7 E. Lancaster Avenue Ardmore, PA 19003 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 June 18, 1982 OPINION OF THE COMMISSION 82 -008 RE: DPW Claim Settlement Agent; Applicability of Act 170 Dear Mr. Phillips: I. Issue: You request an opinion as to whether the Ethics Act applies to you, as a DPW Claim Settlement Agent I. II. Factual Basis for Determination: You informed us that you are employed by the Department of Public Welfare, Special Prosecution Unit of the Bureau of Claims Settlement. The Unit deals with the adjudication of welfare fraud cases in the Philadelphia Courts. Your duties are officially set forth in your job description which you signed as of February 5, 1981. This job description is incorporated herein by reference and comprises a part of your Memorandum submitted to this Commission. In addition, the official job specifications for your job classification as "Claim Settlement Agent I, Position 0741" provide that an incumbent in your position is responsible for: (1) The collection, review and analysis of information to locate, encumber, and obtain financial resources for the settlement of claims against present or former public assistance clients; (2) functioning as office or field agent with joint responsibility for all claim activity in one geographical area; and (3) assembling information to be used in legal proceedings as well as for settlements made administratively. Mr. Robert J. Phillips June 18, .1982 Page 2 This job specification specifically notes that this "work is not normally performed in accordance with prescribed procedures, but requires discretion and judgment in conducting investgations and making recommendations and preliminary decisions although it is reviewed by a higher level claim settle- ment agent prior to final action or disposition through conferences and reports." You were given the opportunity to and did appear before the State Ethics Commission on two separate occasions -- January 20, 1982 and April 16, 1982. At those times you provided testimony indicating that your job functions were, in your opinion, de minimus and involved little, if no power to make recommen- dations. You indicated that you felt that the presence of many levels of supervision over you warranted a conclusion that you had little or no power to make recommendations. In addition to this job description and job specifications you were asked to supply this Commission with an organization chart. You were unable to do so. Such a chart, however, is available and is made part of this record, as attached to this Opinion. This chart, updated May 10, 1982, indicates that within the Philadelphia Field Office you reported to an Area Program Director (classified as a Claim Settlement Agent III) who reported to an Assistant to the Area Executive, who in turn reported to the Area Executive. At the conclusion of your presentation on April 16, 1982, and in light of the fact you had presented a lengthy memorandum to the Commission that day, the Commission voted to rule you were a "public employee" for purposes of the Ethics Act, unless staff reported back to us after reviewing your memorandum with a contrary recommendation. Staff review is now complete and we issue this Opinion as approved at the June 16, 1982 meeting of the Commission in support of the conclusion reached at our April meeting. III. Applicable Law: "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a non - ministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies. (3) planning or zoning. Mr. Robert J. Phillips June 18, 1982 Page 3 (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 minimus nature on the interests of any person. 65 P.S. 402 Public employee - (1) The term includes any individual; (A) who is employed by the Commonwealth or a political subdivision and who is responsible for taking or recommending official action of a nonministerial nature with regard to: (I) contracting or procurement; (II) administering or monitoring grants or subsidies; (III) planning or zoning; (IV) inspecting, licensing, regulating or auditing any person; or (V) any other activity where the official action has greater than a de minimus economic impact; and (B) who meets the criteria of either subclause (I) or (II) of this clause: (I) The individual is: ( -a -) a person who normally performs his responsibility in the field without on -site supervision; ( -b -) the immediate supervisor of a person who normally performs his responsibility in the field without on -site supervision; or ( -c -) the supervisor of any highest level field office. Mr. Robert J. Phillips June 18, 1982 Page 4 (II) The individual is a person: ( -a -) who: ( -1 -) has the authority to make final decisions; ( -2 -) has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions; ( -3 -) prepares or supervises the preparation of final recommendations; or ( -4 -) makes the final technical recommendations; and ( -b -) whose recommendations or actions: ( -1 -) are an inherent and recurring part of his position; and ( -2 -) affect organizations other than his own organization. (ii) The term does not include individuals who who are employed by the Commonwealth or a political subdivision of the Commonwealth in teaching as distinguished from administrative duties. (iii) Personsin the position listed below are generally considered public employees. (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 organiation elements; and other governmental body department heads. (C) Staff attorneys engaged in representing the department, agency, or other governmental bodies before the public. Mr. Robert J. Phillips June 18, 1982 Page 5 (0) Solicitors, engineers, managers, secretary- treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, housing and building inspectors, 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 business managers and principals. (iv) Persons in the position listed below are generally not considered public employees. (A) City Clerks, other clerical staff, road masters, secretaries, police officers, welfare case workers, maintenance workers, construction workers, detectives, equipment operators, and recreation directors. (B) Law clerk, court crier, court reporter, probation officer, security guard, and writ server. (C) School teachers and clerks of the schools. (emphasis supplied) 51 Pa. Code 111.1 IV. Discussion: Preliminarily we note that a large portion of your argument questions the above - referenced regulation which excludes welfare case workers generally from the definition of "public employee." You assert that these workers have as much, if not more responsibility to make recommendations than you have as a Claim Settlement Agent (CSA). You state, therefore, that you should be excluded from this definition, as well. We need take little effort to address this argument: If the general exclusion of case workers is incorrect, that error would not, in and of itself, justify a similar exclusion for you or the class of CSA workers, in general. We must address the question of whether you fall within the purview of the definition of "public employee" based upon that definition in the Ethics Act and our regulations by reviewing the substantive duties and responsibilities you are assigned. While the staff is directed to review the possible error in generally excluding case workers, we do not find this a sufficient basis for altering our conclusion as to your inclusion within the purview of the "public employee" definition. Mr. Robert J. Phillips June 18, 1982 Page 6 Your duties and responsibilities are - clearly and carefully articulated in both your job description which you executed on February 5, 1981 and which you state has not been altered through April 16, 1982 and the official job speci- fication for the CSA I Position. You argue that these items do not adequately express the nature of your duties and that the responsibilities set forth there are a gross exageration of your actual di minimus role. Frankly, your testimony and presentation would have us believe that you are hardly more than a clerk who has no iriiput, no discretion and no authority to make any sort of recommendation. This presentation flies in the face of the objective and clear responsi- bilities in your own job description and specifications. Without calling into question your credibility, we nevertheless can not ignore the fact that you are required and empowered through these documents to peform job functions of a much more significant nature than you acknowledge. We must believe that your atempt to narrowly define your employment function so as to effectively remove yourself from the definition of "public employee" must fail as our inquiry must focus on the job itself and not on the individual and variable functions of the particular employee occupying the position. See Mummau v. Ranck, 531 F. Supp. 402 (E.D. Pa. 1982) citing Branti v. Finkle, 445 U.S. 507 at 518, 100 S. Ct. 1287 at 1294, 63 L. Ed 2d 574 (1980). We must proceed to analyze your job function objectively and if under this analysis your CSA I duties are outside the definition of "public employee" you will not be required to comply with the Ethics Act. Our analysis, however, as detailed below, leads us to the opposite conclusion. Specifically, as a CSA I you are empowered to investigate the financial standing of present and past public assistance clients in order to obtain restitution and reimbursement from clients' real estate, estate income, workers' compensation, etc. Further, you are empowered to take steps necesary to encumber clients property to make recommendations as to settlements, to appraise real estate, and to negotiate for sale of property necessary to resolve debts of clients in order to secure the restitution required. Your role in appearing as a witness on behalf of the Commonwealth and as a hand- writing analysist /expert is not de minimis. In these actions you are clearly recommending or taking actions with respect to the investigation of any person as set forth in the definition of "public employee" in the Ethics Act. See also definition of "inspecting, licensing, regulating or auditing ", 51 Pa. - Code §1.1. Mr. Robert J. Phillips June 18, 1982 " Page 7 Finally, your responsibility in conducting interviews with private employers of clients- debtors, debtors and in assisting in the ultimate prose- cution of welfare fraud cases through the office of the District Attorney are significant. Your own job description indicates you "inform the Trial Judges of the charges levied... the position of the Commonwealth with regard to such possible dispositions as imprisonment, probation, Accelerated Rehabilitative Disposition and /or restitution." Such a role clearly involves a recommen- dation as to the "interests of any person" -- ie. imprisonment or restitution -- of other than a de minimus economic impact. There is, again, nothing in your job description or position description which limits this role of "infor- ming Trial judges" to your being a mere conduit for this information. In fact, your position description also authorizes a CSA I to make recommen- dations as to the "settlements" offered to client - debtors. It is clear that your investigative power and settlement - recommendation authority, along with your ability to inform Trial Judges combine to give you a significant position vis -a -vis the economic life -- or death -- of a client - debtor. These factors combine to support our conclusion and we enter the following accordingly: V. Conclusion: As decided at our meeting of April 16, 1982 and upon conside- ration of all evidence submitted and referred to herein, we affirm Advice 81- 25A previously issued to you November 10, 1981 and issue and enter this Order and Opinion holding that for the reasons enunciated above you are:.considered a "public employee" subject to the Ethics Act and you must file a Financial Interest Statement. This statement must be filed within thirty (30) days of this Opinion. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the advice given. This letter is a public record and will be made available as such. Sincerely, )) 61 /. PAUL J. Sr;4ITH Chairman (Commissioner Roy Wilkinson did not participate in this Opinion). cc: John Lyle, DPW Personnel Helen O'Bannon, Secretary, DPW UPDATE: This Opinion was appealed to the Commonwealth Court and is currently pending, see Phillips, No. 1574 C.D. 1982.