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HomeMy WebLinkAbout85-017 StrockMr. Maynard E. Strock 1701 Sherwood Road New Cumberland, PA 17070 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 July 26, 1985 OPINION OF THE COMMISSION 85 -017 Re: Bureau of Correction, Prison Inspector, Public Employee Dear Strock: This responds to your letter of June 18, 1985, in which you appeal the Advice of Counsel dated June 13, 1985, (No. 85 -551). I. Issue: You ask whether in your capacity as a Prison Inspector with the Governor's Bureau of Corrections, hereinafter, the Bureau, you are to be considered a "public employee" as that term is defined in the Ethics Act, and whether you are therefore, required to file a Statement of Financial Interests pursuant to the Ethics Act. II. Factual Basis for Determination: You currently serve as a prison inspector in the Governor's Office, Bureau of Corrections. On April 4, 1985 you filed a Financial Disclosure appeal form with the Bureau. Generally, you asserted in that appeal that you should not be required to file a Statement of Financial Interests, in that, it is a violation of your fifth amendment guarantees under the United States Constitution. On April 11, 1985 you were informed by the director of the personnel management division of the Bureau that the Bureau as well as the Governor's Office of Administration had reviewed your appeal and had determined that you were required to file the Statement of Financial Interests as required under the State Ethics Act. You were also informed that you had the right to appeal that decision to the Ethics Commission. An appeal to this Commission followed. On May 31, 1985, an Advice of Counsel was issued, (No. 85 -551) advising you that you were a public employee within the purview of the State Ethics Act and, therefore, required to file a Statement of Financial Interests. Due to an error contained in that advice, an amended advice was issued on June 13, 1985, in place of the original advice. Mr. Maynard E. Strock July 26, 1985 Page 2 You have appealed that advice. We note that you have submitted certain legal arguments on your behalf asserting that the filing requirements are violative of your fifth amendment guarantees under the United States Constitution. As a prison inspector within the Bureau, you inspect state and county correctional facilities for compliance with the applicable law and regulations. The inspection process involves physically checking all areas of the prison such as sanitation, food services, and building maintenance. In addition, the inspection process includes interviewing staff and inmates and revi ewi n9 the custody and treatment of prisoners. Boa al, ;o prepare comprehensive written reports of inspections and investigations, You conduct research and keep abreast of changing laws and regulation., pertaining to penal affairs. part of your duties you investigate fires, escapes, inmate complaints, suicides and other incidents involving prisons. In addition thereto, you discuss new standards and operating procedures with wardens and other prison officials and you discuss the results of the inspection process and assist the prison officials with information and advise on prison affairs. Your job description, which we have reviewed and incorporated herein by reference, indicates that you must be prepared to discuss all the above with Judges, County Commissioners, Prison Board members and other prison officials and that you must he on call in the event of an emergency in any of the state institutions that would require assistance. We note that you have filed a Statement of Financal Interests as of April 27, 1985. III. Discussion: As noted in the previously issued Advice of Counsel, the question to be answered here is clear. Specifically, are you, in your capacity as a prison inspector serving with the Bureau to be considered a "public employee" as that term is defined in the State Ethics Act. In relation to this issue, we agree with the analysis contained in the aforementioned advice and restate that analysis here. Mr. Maynard E. Strock July 26, 1985 Page 3 The State Ethics Act provides 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 (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. In addition thereto, the regulations of the Commission further provide in part, that the term public employee includes any individual: (B) who meets the criteria of either subclause (I) or (II): (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. Maynard E. St rock July 26, 1985 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. (iii) Persons in the positions listed below are generally considered public employees. • • • 0 • 0 (0) Solicitors, engineers, managers, and 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. See 51 Pa. Code §1.1. (emphasis added). Mr. Maynard E. St rock July 26, 1985 Page 5 We must review the question you present under these provisions of the statute and the regulations of the Commission in light of your duties and obligations as described in the classification specifications, and the job description under which you operate. Our 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 McClure, 83 -001; Phillips, 82 -008, affirmed on appeal, Pa. Cmwlth. , 470 A.2d 659 71 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 us to construe coverage of the Ethics Act broadly, rather than narrowly, and conversely, directs that exclusions from the Ethics Act 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, we are led to the conclusion that while you serve in this capacity, you are a "public employee" subject to the financial reporting and disclosure requirements of the State Ethics Act. Further detail on our analysis follows. It is clear that in your capacity as a prison inspector (much like a housing or building inspector), you have the ability to recommend official action with respect to subparagraph (4) within the definition of "public employee" as set forth in the Ethics Act, 65 P.S. 402. Specifically, your function is to inspect the conditions and general operation of state and county correctional facilities. This function is of a nonministerial nature and also has an economic impact of greater than a de minimus nature on the interest of individuals. Your work is generally performed in the field without on site supervision. 51 Pa. Code §1.1 (I) (b). These activities fall within the definition of public employee as contained in the Act and the regulations of the Commission. Under these circumstances and given your duties and responsibilities as outlined above, we must conclude that you are a "public employee" as that term is defined in the State Ethics Act. As a public employee, you are required to file a Statement of Financial Interests pursuant to Section 4(a) of the Act which provides that: Section 4. Statement of financial interests required to be filed. (a) Each public employee employed by the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency or bureau in which he is employed no later than May 1 of each year that he holds such a position and of the year after Mr. Maynard E. Strock July 26, 1985 Page 6 he leaves such a position. Any other public employee shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. 65 P.S. 404(a). The Act additionally provides that: Section 9. Penalties. (b) Any person who violates the provisions of Section 4 is guilty of a misdemeanor and s'nall be finee; not more than $1,00C or imprisoned for not more than one year, or be both fined and imprisoned. 65 P.S. 409(b)0 We have reviewed your constitutional question and the materials and arguments presented in support thereof. We do no however, find these arguments persuasive. The Statements of Financial Interests contain no questions that require information which on its face, is inherently incriminating. Additionally, the statements are not directed at those inherently suspected of criminal activity. The statements are completely neutral and are directed at all public officials and public employees. Requests for information of this type have been held to be not violative of any Fifth Amendment guarantee. Garner v. United States, 424 U.S. 648, 96 S.Ct. 1178 (1970); See also, United States v. Shimek, 445 F. Supp. 884, (M.D. PA 1978); Hartman v. Switzer 376 F. Supp 486, (D.C. PA 1974). IV„ Conclusion: Based upon the above discussion, we affirm the Advice of Counsel and conclude that you are to be considered a "public employee" in your capacity as a prison inspector with the Bureau of Corrections. 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. We note that you have already done so, therefore, you have complied with 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. Mr. Maynard E. Strock July 26, 1985 Page 7 This letter is a public record and will be made available as such. 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 C ission<; HER "T B. CONNER Chairman