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HomeMy WebLinkAbout88-007 MarkelDear Mr. Markel: I. Issue: Mr. Merwyn R. Markel 3000 Swallow Hill Road Suite 427 Pittsburgh, PA 15220 II. Factual Basis for Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION DATE DECIDED: 8/18/88 DATE MAILED: 9/13/88 88 -007 Re: Statement of Financial Interests; Public Employee, Human Relations Representative II; Appeal of Advice of Counsel This opinion is issued pursuant to your appeal of the Advice of Counsel, No. 88 -570 issued May 26, 1988. Whether a Human Relations Representative II in the Human Relations Commission is a public employee required to file the Statement of Financial Interests pursuant to the State Ethics Act. The issue which you presented was originally processed as a request for an Advice of Counsel and, as a result on May 26, 1988, Advice of Counsel No. 88 -570 was issued. That advice concluded that you as a Human Relations Representative II with the Human Relations Commission, hereinafter HRC, are a public employee within the purview of the State Ethics Act and therefore are required to file a Statement of Financial Interests in conformity with that law on or before May 1 of each year in which you serve and for the year after you leave such position. On June 15, 1988, this Commission received your letter of June 13, 1988 wherein you appealed the above Advice. By letter of June 22, 1988 you were notified that your appeal would go before the full Commission and that you would be notified of the date, time and location of that meeting by separate letter. You were then notified by letter of July 19, 1988 of the date, time and location of the public meeting. Mr. Merwyn R. Markel Page 2 In your Appeal of Advice, you allege that there were omissions and errors of law and material facts. Specifically, you assert that you were not a party to proceedings in Opinion, 86 -011 and were not afforded the right to attend and participate in the hearing. After incorporating by reference your Preliminary Request for Reconsideration of Opinion, 86 -011, you reference Advice of Counsel No. 80 -686 and state that your responsibilities as a Human Relations Representative II, hereinafter HRRII, are no different now than when the foregoing Advice was issued which determined that you were not a "public employee." You then reference the Pennsylvania Human Relations Act and state that because you enforce the foregoing Act by investigating and processing cases, you are akin to a police officer or welfare case worker but not a public employee. You then assert that there are several errors in the Advice of Counsel: you do not determine probable cause; Commonwealth Court has not reviewed the question of whether you are a public employee; the ability to recommend official action does not make such person a public employee and lastly, you do not supervise investigations, apprise investigators of changes in law or policy, use medical knowledge, do not testify at hearings or in court and have not participated in pre hearing conferences since December 3, 1986. You further state that your duties are ministerial and are performed in accord with established procedures; in particular you state that there is no exercise of your own judgement, your performance is under close on site supervision, draft documents are reviewed by supervisors and often by attorneys, all business correspondence is first reviewed by a Regional Director or Compliance Supervisor, monthly meetings with Supervisors occur to review and plan progress on investigations and conciliations and lastly, reports are made to Headquarters as to actions which you have taken. You conclude by requesting that this Commission should determine that HRRII's are not public employees under the Ethics Act. The determination of this matter will be made by applying the State Ethics Act and regulations to your position and in that regard the classification specification and your job description are incorporated herein by reference. II. Discussion: Since you challenge whether you as a HRRII are a public employee required to file the Statement of Financial Interests under the Ethics Act, it is necessary to analyze your duties, functions and responsibilities in order to determine whether you are a covered employee. Philips v. State Ethics Commission, 79 Pa. Commw. Ct. 491, 470 A.2d 659 (1984). Initially, the classification specification of a HRRII provides as follows: Mr. Merwyn R. Markel Page 3 Definition: 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 attorney, presenting the terms of conciliation to the respondent for agreement and compiling a complete case history report including recommendations for conciliation and case closing; or 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 a racial tension situation. Supervision is received from a higher level Human Relations Representative who instructs subordinates on the proper approach to a problem and reviews work through reports and conferences for conformance to agency policies and procedures, and for an evaluation of results. Further, as to your job description which you drafted, the following duties and responsibilities are set forth: you perform detailed analysis, planning, investigation and conciliation of complaints; you handle some complaints which other HRR have been unable to resolve, which may entail further investigation or settlement or a closing recommendation; you occasionally draft complaint forms to correct errors of other staff members; you are supervised by a Compliance Supervisor who reviews your recommended findings, Conciliation Agreements, proposed remedies and drafts and general work progress; you employ legal expertise and medical knowledge which you obtain independently; you conduct investigations through interrogation of complainants, respondents and other witnesses as well as through telephonic communications and letters to obtain answers to questions and to receive documentary evidence; you draft memos requesting subpoenas and the subpoenas themselves for documents Mr. Merwyn R. Markel Page 4 and the attendance of witnesses; you evaluate evidence and make recommendations of findings on the merits through knowledge of the Pennsylvania Human Relations Act; you draft, for review, case closing recommendations where there is a lack of validity or where there is no jurisdiction; you prepare, after approval, a finding of probable cause; you determine appropriate equitable or monetary relief which usually includes a separate investigation involving a calculation of money due which is incorporated into the terms of adjustment after approval by the agency attorney; you participate in conciliation meetings and pre- hearing conferences; you prepare conciliation agreements and assure compliance with settlement agreements through written and oral communication; you seek approval of pre- hearing conferences and quasi - judicial hearings in cases where conciliation has failed; you participate in pre- hearing conferences and assist agency attorneys in preparation for hearings and infrequently testify in court; you occasionally advise other investigators about techniques, procedure and law upon request and perform other miscellaneous duties. The 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. 65 P.S. §402. "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: Mr. Merwyn R. Markel Page 5 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: ( -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 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 are employed by the Commonwealth or a political subdivision of the Commonwealth in teaching as distinguished from administrative duties. Mr. Merwyn R. Markel Page 6 (iii) Persons in the positions 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 organization elements and other governmental body department heads. (C) Staff attorneys engaged in representing the department, agency, or other governmental bodies before the public. (D) 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. (E) Court administrators, assistants for fiscal affairs, and deputies for the minor judiciary. (F) School business managers and principals. (iv) Persons in the positions 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 clerks, court criers, court reporters, probation officers, security guards, and writ servers. (C) School teachers and clerk of the schools. 51 Pa. Code §1.1. Mr. Merwyn R. Markel Page 7 In applying the Ethics Act and regulation to your position as outlined in the job classification specification and your job description, this Commission must not only consider the specific duties you perform but also review the job itself as detailed in the classification specification. This Commission is mandated to apply the Ethics Act broadly as to coverage but narrowly as to exclusions. See Philips, supra, wherein the Commonwealth Court of Pennsylvania noted that coverage of the Ethics Act was to be broadly rather than narrowly construed and that exclusions were to be narrowly rather than broadly construed. An application of the Ethics Act and regulations leads to the conclusion that you are a "public employee" required to file the Statement of Financial Interests. The classification specification indicates that the position of HRRII involves advanced technical work of enforcing the Human Relations Act by performing highly complex investigations as to alleged discrimination in employment, education, housing or public accommodations; making determination of probable cause; arriving at terms of conciliation; presentation of the conciliation terms to the respondent; involvement in studies, surveys, implementation of various programs and the performance of other specified duties. From your job description, it is clear that you are involved in numerous aspects of cases from interviewing the parties, obtaining documentation, evaluating evidence, making recommendations of findings on the merits or lack of jurisdiction, drafting case closing recommendations and findings of probable cause on approval, determining equitable or monetary relief to be incorporated into terms of adjustment after approval, preparing conciliation agreements, participating in pre- hearing conferences, advising other investigators and performing other specified duties. It is clear that your actions have an economic impact of greater than de minimus nature on the interest of other persons under subsection 5 of the definition of public employee in Section 2 of the Ethics Act. Further, you do perform your duties in the field without on -site supervision and hence you are a public employee under the criteria of subparagraph B I of the regulations. Lastly, as this Commission noted in Opinion, 86- 011, your position is similar to that of a Claims Settlement I in the Department of Public Welfare; individuals in that position conduct investigations of public assistance clients concerning restitution or reimbursement, analyze information on claims, take steps to encumber financial resources, negotiate as to the sale and rental of property, recommend compromise settlements and prepare correspondence, reports and recommendations. Commonwealth Court in Philips, supra, specifically determined that Claims Settlement Agents I are public employees required to file the Statement of Financial Interests. Turning to the matter of the specific objections which you have proffered, any material errors or omissions of fact or law which you claim may be disposed of by noting that the determination of your Mr. Merwyn R. Markel Page 8 status of a public employee may be made by not only looking at your specific duties under your job description but also by reviewing the nature of the position itself as set forth in the classification specification. As Commonwealth Court noted in Philips, supra: The Commission applied this definition to the duties and responsibilities of the Petitioner's job as set forth in the class specifications of a CSA I and his job description which were admitted into the record rather than to his actual duties as a CSA I as he represented them in his testimony. This Court has utilized such an objective test in deciding an analogous question in Gahres v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 114, 433 A.2d 152 (1981)1 and this approach has been accepted in federal court cases where an employee, discharged for political reasons, contends that his constitutional rights have been violated under the standard erected in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976).2 Accordingly, we find no error in the Commission's use of an objective test. Id. at 660. As to the matter of whether Opinion, 86 -011 is binding upon you because you were not a party and did not have an opportunity to participate, you have been given such an opportunity in this proceeding. Despite the fact that you were given notice and an opportunity to be heard in a public meeting, you chose not to attend. Regarding Advice No. 80 -686, which advised that you were not a public employee, it is noted that said Advice was issued prior to Opinion, 86 -011 and the Philips decision and that said Advice does not take precedence over a subsequent Opinion by the full Commission. Additionally, you were advised in a subsequent Advice, 87 -509 that you were a public employee required to file the Statement of Financial Interests. Lastly, this Commission must express concern regarding your repeated challenges to the filing requirements even though it does not appear that there has been any change in your duties and responsibilities from your job description and classification specification. It is quite disconcerting to this Commission that you did not even attend this hearing after you voiced protestations about not being afforded the right to participate in prior Opinion, 86 -011. If you disagree with this Opinion, you have the right to challenge this determination. However, upon a final disposition of this case, absent any change in the status of your employment, this Commission considers this Opinion as a definitive determination on your status as a public employee in your capacity of a HRRII. Mr. Merwyn R. Markel Page 9 IV. Conclusion: You, as a Human Relations Representative II in the Pennsylvania Human Relations Commission, are a public employee and as such are required to file the Statement of Financial Interests. Accordingly, you must file the Statement of Financial Interests for each year you hold the position and for the year following your termination of service. Advice of Counsel 88 -570 is affirmed and your appeal is dismissed. 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 evidence of the advice given. such. This letter is a public record and will be made available as Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. By the Commission, _G�V� -BPD Joseph W. Marshall, III Chairman