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HomeMy WebLinkAbout86-011 H R RepresentativeTo whom it may concern: I. Factual Rasis for Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION DECIDEEOCT . 86 MAILED Q 6 In Re: Human Relations Representatives Pennsylvania Human Relations Commission 3405 North Sixth Street Harrisburg, Pennsylvania 17110 86 - 011 Re: Human Relations Representatives, Puhlic Employees, Statements of Financial Interests The following opinion of the State Ethics Commission is being issued in response to the collective appeals of 54 Human Relations Representatives currently employed by the Pennsylvania Human Relations Commission. Retween July 18, 1986 and July 2.5, 1986, the Pennsylvania State Ethics Commission received financial disclosure appeal forms from 54 current employees of the Pennsylvania Human Relations Commission. These employees, all of whom were classified and serving as Human Relation Representatives, submit that they are exempt from the Statement of Financial Interests filing requirement of the State Ethics Act, as they do not fall within the definition of "puhlic employee" as set forth in that law. Generally, these individuals assert that the functions performed by them, in their positions with the Human Relations Commission, do not rise to the level of "independent activity" so as to require the filing of the Statement of Financial Interests. Ry way of letter dated September 24, 1986, the Executive Director of the State Ethics Commission notified all of the appellants that the Commission would review the issues presented at the next scheduled puhlic meeting of the Commission. The effected individuals were further notified that in order to expedite and coordinate the various appeals that had heen filed in relation to this matter, the Commission had decided to select from the appellants a representative of each level of Human Relations Representatives that had appealed. The Commission then would decide the issue as to whether these specific individuals were covered public employees and, thus, required to file a Statement of Financial Interests pursuant to the State Ethics Act. The Human Relations Representatives Page 2 individuals were further notified that the opinion of the Commission would be applicable to all other employees performing similar duties, responsibilities and functions unless there were some unique factors relating to a particular individual which would exempt that person from the Commission's decision. The Commission specifically selected, from among the appeals, the following individuals as representatives of specific units and levels of Human Relations Representatives. Unit Level Individual Intake II Gloria Moore Compliance III (Non- Supervisory) Neil S. Sullivan Compliance III (Supervisory) Thomas Myers Extended I Odette Neville Fact - Finding II Edward Zook Education /Comm. Sera II Arberdella White -Davis Housing I I Randal l Smedley We have, as part of this appeal, reviewed the job descriptions and classification specifications for various levels of Human Relation Representatives serving in different units of the Commission. The information reviewed, in this respect, is as follows: The position classification for Human Relations Representatives I, (4981) is the same, regardless of the unit in which the individual serves. That classification, in part, provides that: This is technical and sensitive public contact work in enforcing the provisions of the Human Relations and Fair Education Opportunity Acts and in the conciliation of problems within a community. An employee in this class provides technical advice in the area -of comp? i ante by investigating complaints of alleged di scrimi nation against individuals or minority groups in employment, education, housing, and public accommodations. Work involves conducting extensive investigation into all facets of complaints, determining probable cause, arriving at terms of conciliation through discussions with supervisors and commission attorneys, presenting the terms of conciliation to the respondent for agreement, and compiling a complete case history report including recommendations for conciliation and case closing. Work may include attending meetings with school and college administrators, private industry heads, community leaders, other human relations commissions and councils, and ethnic group leaders to conduct various studies and surveys, to discuss and promote various human Human Relations Representatives Page 3 relations programs, and to aid i n finding ways of solvi ng or easing tension which results from racial or sex discrimination. Work includes participation in the conduct of studies and surveys aimed at compiling data pertaining to patterns of discrimination and /or segregation in areas such as housing, education, public accommodations, and employment. Employees are subject to be called at any time to help investigate and ease tension situations. The position classification for Human Relations Representatives II, (4982), is also uniform throughout all units and provides that: This is advanced technical work in enforcing the provisions of the Human Relations Act and in the conciliation of related problems within a community. An employee in this class is responsible for working in the area of compliance by conducting highly complex and sensitive investigations of complaints of alleged discrimination against individuals or minority groups in employment, education, housing, or public accommodations; or for working in an education, community services, housing or labor division implementing programs designed to promote ethnic integration in all parts of the community and educate the general public against prejudice. Work involves conducting extensive investigations into all facets of complaints, determining probable causes, arriving at terms of conciliation through discussions with supervisor and commission attorneys, presenting the terms of conciliation to the respondent for agreement and compiling a complete case history report including recommendations for conciliation and case closing . Work involves meetings with school and college administrators, private industry heads, community leaders, other human relations commissions and councils, and ethnic group leaders to conduct various studies and surveys, to discuss and promote various human relations programs, and to aid in finding ways of solving or- easing racial tension situations. Work may also involve implementing, conducting, or participating in educational or community service programs designed to promote understanding and acceptance between the races and participation in the conduct of studies and surveys aimed at compiling data pertaining to patterns of integration in areas such as housing or employment. Employees are subject to be called at anytime to help investigate and ease tension situations. Finally, as in the prior situations, the classification specifications (4983) for a Human Relations Representative III, is uniform in nature and, in part, provides that: This is advanced technical and supervisory work in enforcing the provisions of the Human Relations Act and in the conciliation of related problems within a community. An employee in this class is responsible for supervising, in a regional office, lower level human relations representatives in the implementation of programs in the areas of compliance, community services, education, housing, or labor; or for assisting, in the headquarters office, a higher level human Human Relations Representatives Page 4 relations representative develop and coordinate compliance, community services, education, research, publicity and information, or housing programs. Work involves reviewing and organizing the work load, assigning work to subordinates and reviewing it in progress and upon completion for recommendations, completeness, and adherence to Commission policy and procedures. Work also involves meeting with school and college administrators, private industry heads, community leaders, other human relations commissions or councils, and ethnic group leaders. to conduct various studies and surveys and to discuss and promote various human relations programs, and to aid i n fi ndi ng ways of sol vi ng or easi ng raci al tension situation. Work may include implementing, conducting, or participating in educational or community service programs designed to promote understanding and acceptance between the races and may include participation in the conduct of studi es aimed at compi 1 i ng data pertai ni ng to patterns of i ntegrati on i n areas such as housing or employment. Employees are subject to be called at any time to help investigate and ease tension situations. We have also reviewed the job description of the individuals identified in the facts in order to determine the functions performed in each unit of the Human Relations Commission. As noted previously, individuals serving as Human Relations Representatives may be assigned to one of six units. Information provided by counsel, for the representatives, indicated that there is no difference in the duties and responsibilities of representatives regardless of the unit in which they serve. That is, a Representative II, serving in the Compliance Unit performs substantially the same as a Representative II in the Fact Finding Unit. This position is confirmed by the job descriptions which we have reviewed as previously set forth. These descriptions indicated, in part, that representatives at all levels are involved in such activity as case investigation, settlement negotiation, settlement compliance, recommendation of official action regardi ng cases and case conciliation. The classification specifications and job descriptions have been incorporated herei n by reference. The State Ethics Commission, upon reviewing all of the foregoing information, has now been called upon to dertermine whether the individuals serving in the positions outlined above are public empl oyees within the purview of the State Ethics Act, and thereby required to file Statements of Financial Interests in accordance with that law. II. Discussion: As set forth above, the question to be answered here is clear. Specifically, are individuals serving as Human Relations Representatives with the Pennsylvania Human Relations Commision, hereinafter the HRC, to be considered "public employees." The State Ethics Act defines that term as follows: Human Relations Representatives Page 5 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 normi ni steri 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 State Ethics Commission similarly define the term public employee as above and also set forth that the term 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. (II) The individual is a person: ( -a -) who: Human Relations Representatives Page 6 ( -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. We must review the question presented under these provisions of the statute and the regulations of the Commission in light of the duties and functions as described in the classification specifications, and the job ' description under which Human Relations Representatives operate, as well as the testimony presented to the Commission on October 21, 1986. 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; Phillips v. State Ethics Commission, 79 Pa. Cmwlth. 491, 470 A.2d 659 (1984); Mummau v. Ranck, 531 Fed. Supp. 402, (E.D. Pa. 1982). Also, in reviewing this question, the Commonwealth Court of Pennsylvania 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 the functions and the information available to us, we are led to the conclusion that Human Relations Representatives, at all levels, are "public employees" subject to the fi nanci'al reporting and disclosure requirements of the State Ethics Act. Human Relations Representatives Page 7 In Phillips v. State Ethics Commission, Supra, the Commonwealth Court of Pennsylvania specifically reviewers a position that is similar to the positions currently under review. In that case, at issue was whether a Claims Settlement Agent I, in the Pennsylvania Department of Puhlic Welfare, was a puhlic employee within the purview of the State Ethics Act. The Court noted that individuals serving in that position generally investigated puhlic assistance matters, analyzed information, negotiated matters, recommended terms of settlements, and generally exercised discretion in performing such functions. As such, these individuals were to he considered "puhlic employees" within the purview of the State Ethics Act. In the instant situation, it is clear that Human Relations Representatives participate in the type of activities as set forth in the Ethics Act, 65 P.S. 6402. Specifically, the job classifications, for all three levels of Human Relations Representatives, indicate that employees in this class are involved in technical and sensitive puhlic contact work in enforcing the provisions of the Human Relations Act. Of particular importance is the fact that work in this capacity involves conducting extensive investigations into all facets of complaints, determining whether prohahle cause for such complaints exists and arriving at terms of conciliation regarding the matters under investigation. The terms of such conciliation are presented to the respondent for agreement and individuals, in all three categories, are involved in recommending terms for such conciliation and the ultimate closing of cases. This work is advanced technical work in nature and also involves negotiation and recommendations of approaches to he taken during cases. In addition to the foregoing, we note that the joh description for all of the individuals reviewed, clearly indicate that these individuals are involved in resolving complaints, drafting conciliation agreements, securing the signature of the respondents and complainants on such conciliation agreements and further insuring that compliance with such agreements has takers place. The ability of Human Relations Representatives, thus, to negotiate and settle matters and complaints in relation to sensitive matters of the type herein specified, clearly meets the level of puhlic employee as set forth in the Act. In addition, and as set forth in the regulations of the State Ethics Commission, these duties are generally performed in the field without on -site supervision and,,therefore, this activity further meets the definition of puhlic employee as descrihed in the regulations of the State Ethics Commission. III. Conclusion: Rased upon all of the foregoing, we conclude that Human Relations Representatives employers by the Pennsylvania Human Relations Commission are "puhlic employees" within the purview of the State Ethics Act. Accordingly, individuals so employed must file a Statement of Financial Interests for each year in which they hold the position outlined above and for the year following their termination of this service. Human Relations Representatives Page 8 Statements of Finanical Interests must be filed within 30 days of this Opi nion. This Statement of Fi nanci al Interests would report information of the prior calendar year. Please file the original of such a Statement with this Commission to insure compliance with this Opinion, provide one copy to your Personnel Office and retain a copy for your records. 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 i n any civil or crimi nal proceedi ng, 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. 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 opi nion requires reconsideration. By the Commission, fU sC1 itR f G. Sieber Pancoast Chai rman