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HomeMy WebLinkAbout85-012 SilverMr. Samuel Silver 2020 Addison Street Philadelphia, PA 19146 Dear Mr. Sil ver: I. Issue: II. Factual Basis for Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 June 24, 1985 OPINION OF THE COMMISSION Re: Claims Settlement Agent; Public Employee 85 -012 This responds to your appeal of the Advice of Counsel (85 -521) dated March 4, 1985. Whether a Claims Settlement Agent I is a public employee within the purview of the State Ethics Act and, therefore, required to file a financial interest statement, timeliness of appeal. You are currently employed by the Pennsylvania Department of Public Welfare, Bureau of Claims Settlement, as a Claims Settlement Agent I. On February 12, 1985 you filed a financial disclosure appeal which indicated that you should not be required to file a Statement of Financial Interests as required by the State Ethics Act, in that your responsibilities did not meet the requirements of the term public employee as defined in the Act. Specifically, you indicated that your duties should be considered "Special Projects" and should be classified as "ministerial action." Your appeal was processed as a request for advice and on March 4, 1985, Advice of Counsel No. 85 -521 was issued. That advice concluded that based upon your position specification, job description and prior Commission and judicial precedent, you are a public employee within the purview of the Ethics Act and thereby required to file a Statement of Financial Interests. On March 22, 1985, the Commission received your request that the full Commission revi the Advice of Counsel. Specifically, you indicated that while your job description and position specification does set forth certain duties and responsibilities, you state that you do not perform any of the duties set forth therein. Mr. Samuel Silver June 24, 1985 Page 2 The Commission has reviewed both your current job description and the job specifications (0741) for the position that you hold. Both have been incorporated herein by reference. These documents specifically indicate that you serve as a child support agent in the office of program development for the Bureau of Claim Settlement. In this position you process support cases, enforce support orders, initiate action to obtain orders against legally responsible relatives and you represent the Commonwealth in formal and informal Court hearings. In addition to the foregoing, the description and specification indicate that you perform the following: 1. Negotiates at pre- hearing conference with attorneys and defendants to secure equitable and sufficient support payments. 2. Represents the Commonwealth with the Family Court Fiscal Unit on all cases where monies are being held due to encumbrance of funds. Reviews, analyzes and determines whether monies should be released to the Court, dependent beneficiary or the Department. Request court records, compute monies and authorize release of funds. 3. Refers information pertaining to possible fraud involved with public assistance cases to County Board of Assistance Office and for appropriate Claim Settlement processing. 4. Prepares, assembles and presents informative data to the Family Courts, Domestic Relations Offices, County and District Offices, relative to child support on behalf of the Department. 5. Interprets to clients, attorneys, public officials and other individuals, the law and policies regarding child support. The position specification (No. 0741) for a Claim Settlement Agent I specifically provides that: This is specialized office or field work in the settlement of reimbursement and restitution claims in the income maintenance program. An employee in this class is responsible for 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. Employees function as office or field agents with joint responsibility for all claim activity in one geographical area. Through extensive correspondence and field contacts employees assemble information to be used in legal proceedings as well as for settlements made Mr. Samuel Silver June 24, 1985 Page 3 administratively. Work is not normally performed in accordance with prescribed procedures, but requires • discretion and judgment in conducting investigations and making recommendations and preliminary decisions. Work is reviewed by a higher level claim settlement agent prior to final action or disposition through conferences and reports. In addition to the foregoing, we have been informed that the job description which you have supplied to the Commission was reviewed by you and signed by you on January 28, 1985. This document includes the following instruction "try to explain your work in a way that someone unfamiliar with your job can understand." The duties and functions listed above were in part obtained from this document. Immediately above your signature on the job description is the following statement: "I certify that to the best of my knowledge all statements shown above are correct." Finally, we have received information from the Governor's Office of Administration that in May 1985, a review of your position was conducted. That review included interviews with your immediate supervisor and the Claim Settlement Program Director. That position review concluded that you, in fact, performed all work associated with the Claim Settlement Agent I classification with the exception of testifying in Court. As a result, your position was determined to be properly classified. III. Discussion: Initially, the Commission notes that your appeal of the instant advice was filed with the Commission on March 22, 1985. This was eighteen (18) days after the issuance and service of that advice. The Regulations of the Commission rovide that an appeal from such an advice shall be made within fifteen (15) days of the service of the advice. As such, we believe that your appeal has not been timely filed. Additionally, we believe that the findings and conclusios as set forth in that advice were correct. As noted in the previously issued Advice of Counsel, the State Ethics Commission and the Commonwealth Court of Pennsylvania have specifically addressed the issue of whether a Claims Settement Agent I, is a public employee within the purview of the Ethics Act thereby required to file a financial interest statement. Opinion, 82 - 008 Phillips; Phillips v. State Ethics Commission, Pa. Cmwlth. , 470 A.2d 659, (1984). Mr. Samuel Silver June 24, 1985 Page 4 The Ethics Act provides in part that: 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 nonmi nisteri al 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 minimus 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. 65 P.S. 402. The regulations of the Ethics Commission further provide that individuals are considered public employees where they perform their duties in the field without on -site supervision, or where they have the authority to forward or stop recommendations from being processed, and where such recommendations are an inherent and recurring part of their position, and where such activities affect organizations other than the employees own. See 51 Pa. Code §1.1 Your attempt 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, you are empowered to take the necessary steps to obtain court orders against individuals, enforce support orders as well as negotiate to secure equitable and sufficient support payments. You represent the Mr. Samuel Silver June 24, 1985 Page 5 Commonwealth with the Family Court Fiscal Unit regarding the encumbrance of funds. You determine whether monies should be released to the Courts or to individuals you authorize the release of such funds. While the foregoing represent only a part of your duties, as outlined in the aforementioned documents, it is clear that you are recommending or taking actions that have an economic impact of greater than a de minimus nature on the interests of individuals. See 65 P.S. §402. These functions are, not as you indicate, "special projects" but are a continuing and recurring part of your position. There can be no doubt that your duties, as set forth, indicate that you maintain a significant position regarding numerous individual's payment and /or receipt of support payments. You also play an integral role in ensuring compliance with orders and directives. As such, and in light of the foregoing, you must be considered a public employee within the purview of the Ethics Act. As noted, this conclusion has been specifically addressed and upheld by the Commonwealth Court of Pennsylvania. See Phillips v. State Ethics Commission, Supra. This result is supported by the fact that in January, 1985 you personally certified that you performed the functions as previously outlined. Additionally, your supervisors have confirmed that you perform all of the duties, responsibilities and functions of a Claims Settlement Agent I, except for testifying in Court. We do not believe that the elimination of this one function can change the conclusion reached herein. Also we note that you have presented no evidence whatsoever in support of your position. IV. Conclusion: For the reasons set forth above you are considered a "public employee" within the purview of the State Ethics Act and you must, therefore, 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. Mr. Samuel Silver June 24, 1985 Page 6 Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconside- ration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. JJC /sfb By the Commission, Dr. Leon L. Haley Vice - Chairman