Loading...
HomeMy WebLinkAbout89-004 GarlanMr. Joseph F. Garlan Professional Conduct Investigator Department of State Bureau of Professional and Occupational Affairs 100 Lackawanna Avenue Scranton, PA 18503 Dear Mr. Garlan: I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION DATE DECIDED: April 19, 1989 DATE MAILED: April 28, 1989 Re: Statement of Financial Interests; Public Employee, Professional Conduct Investigator; Appeal of Advice of Counsel; Timeliness This opinion is issued pursuant to your appeal of the Advice of Counsel, No. 88 -639, issued on October 26,1988. Whether a Professional Conduct Investigator in the Department of State is a public employee required to file the Statement of Financial Interests pursuant to the State Ethics Act. II. Factual Basis for Determination: 89 -004 The issue which you present was originally processed as a request for an advice of counsel and as a result on October 26, 1988 Advice of Counsel No. 88 -639 was issued. That advice concluded that you as a Professional Conduct Investigator with the.Department of State, 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 November 18, 1988, this Commission received your letter dated November 7, 1988, wherein you appealed the Advice. By letter of November 30, 1988, you were notified that your appeal would go before the full Commission, that you would be notified of the date, time and location of the meeting by a separate letter and finally that your letter was received after the fifteen day appeal period which raised a timeliness issue as to your appeal. You were then notified by letter Mr. Joseph F. Garlan Page 2 of February 1, 1989, of the date, time and location of the public meeting,pf February 22, 1989. Prior to that meeting, you requested and were granted a continuance. By letter of March 30, 1989, you were given_ the requisite notice of this public meeting. - In -your appeal of advice you allege that although the,State Ethics Act defines a public employee as one who is responsible for taking or recommending official action of a non - ministerial nature, professional conduct investigators are not permitted to recommend or take official action. In addition you reference the Regulations of this Commission regarding the definition of public employees as - persons who normally perform their responsibilities in‘the field without on- site supervision. You admit that professional conduqt investigators work alone in the field but assert that they carry an assignment checklist which determines who will be interviewed and what documents will be secured. In this regard, you have submitted several investigative requests and investigative instructions with appropriate masking to preserve confidentiality. You believe that the investigative checklist serves as a substitute for on-site After asserting that you no longer inspect, regulate or audit you state that you are instructed by Harrisburg Departmental attorneys through the checklist; if something is not on the checklist, you do „not do it. You dispute that you work independently because you do not make recommendations but only acquire information. You believe that other law enforcement agencies are exempt from : filing . .like the state police and the Office of the Attorney General. You admit that- no one has told you that you cannot request to interview people who are not on the checklist or to ask other questions. You concede that you made the choice not to make any requests since the checklist was instituted. The Chief Counsel of the Department of State asserted that the Department of, - considers you to be a public employee because you investigate complaints and perform follow -up workwhioh has an economic impact of greater than a de minimus nature on health, professionals -in that your actions could result in license revocation. In your position, you perform a given task, you work in the field without supervision and you report back upon completion of assignment. Although you have a checklist, such does not diminish your activity of performing field work without supervision. The Regional Director of the Scranton Law Enforcement Office advised that the checklist does not have to be entirely, followed and that additional witnesses may be contacted. In addition, ” -lead sheets" are not inflexible; that is, requests to foll ©w leads are not denied and people who are not on the checklist may be, interviewed, The Chief of Law Enforcement stated that the checklist is a common document used by investigative agencies and was implemented to set a uniform pattern for investigations in the 67 counties. He further Mr. Joseph F. Garlan Page 3 advised that items on the checklist may be questioned by the investigators. In addition, he noted that there are very few cases where specific instructions are given limiting the people interviewed and the questions asked. Information submitted reflects that investigators of this Commission, the Crime Commission, and the Office of the Attorney General file Financial Interests Statements. III. Discussion: In order for this Commission to consider your request for a review of the Advice of Counsel, it is necessary for you to have timely appealed the Advice. Regulations 2.12 of the State Ethics Commission, which was specifically referenced in the last paragraph of the Advice, provides: §2.12 Appeal from an advice. (b) Any such appeal shall be made, in writing, to the Commission within 15 days of service of the Advice. 51 Pa. Code §2.12(b). The question now arises as to the computation of the fifteen (15) day appeal period. It is clear that the appeal period begins to run from the time of mailing of the original advice from the agency to the time of the actual receipt of the appeal at the agency. The Regulations which set forth the practice and procedure before Commonwealth administrative agencies provide: In computing a period of time involving the date of the issuance of an order by an agency, the day of issuance of an order shall be the day the office of the agency mails or delivers copies of the order to the parties... 1 Pa. Code 531.13(a) It is further provided in the foregoing Regulations as follows: Pleadings, submittals or other documents required or permitted to be filed under this part, the regulations of the agency or any other provision of law shall be received for filing at the office of the agency within the time limits, Mr. Joseph F. Garlan Page 4 the office of the agency and not the date of deposit in the mails is determinative. (Emphasis supplied) 1 Pa Code §31.11. Decisional law establishes that filing deadlines are final and may not be extended absent exceptional circumstances. In re Dixon Estate, 443 Pa. 303, 279 A.2d 39 (1971). Two exceptions to the above rule concern situations where there is a breakdown in the postal system or in the operations of the agency in processing the mail. Saint Christopher's Hospital for Children v. DPW, 78 Pa. Commw. Ct. 113, 466 A.2d 1134 (1983); Appeal of Farrell, 69 Pa. Commw. Ct. 32, 450 A.2d 66 (1982). In the facts and circumstances of this case, it has been established that there was a breakdown in the postal system wherein it took eleven days to deliver your letter to the Commission. Therefore, this Commission will treat your appeal as timely filed. Turning to the substantive issue, this Commission finds, based upon an analysis of your duties, functions and responsibilities, that you are a public employee required to file the Statement of Financial Interests under the Ethics Act. The classification specification of a Professional Conduct Investigator provides as follows: "Definition: This is journey level specialized investigative work in detecting violations of the conduct standards of the several Commonwealth professional and occupational licensing boards and the Bureau of Professional and Occupational Affairs which regulate the technical and specialist licensure areas of the overall health delivery system in an assigned geographical area of the state. An employe in this class travels in the performance of a variety of assignments in investigating complaints, allegations, and /or incidents of violations of professional and occupational conduct standards involving physicians, chiropractors, physical therapists, podiatrists, osteopaths, dentists, psychologists, nurses, and medical practitioners, including teachers of medicine, pharmacists, nursing home administrators, and veterinarians. Work involves interviewing professional, technical and administrative personnel and examining, reviewing and /or extracting information from technical records and correspondence, including legal, medical, and court reports and developing and presenting guidance of the respective boards. Work also includes interviewing complainants, licensees, members of the general public and Federal, state and local officials to obtain facts concerning alleged violations of personal and professional conduct. Employes are required to prepare objective, factual reports of findings based on the investigation. Important considerations in this Mr. Joseph F. Garlan Page 5 work are objectivity, judgment, discretion, and a high degree of technical expertise in ascertaining and presenting findings. Work is performed with considerable independence and is reviewed by a regional director for adherence to established procedures. Final reports are submitted to the respective state board responsible for licensing and overseeing practitioners in these areas."" Further, as to your job description, the following duties and responsibilities are set forth: investigating violations of standards of conduct for several Commonwealth Professional Occupational Licensing Boards and conducting inspections to determine compliance with laws, rules and regulations of the Commonwealth Professional Occupational Boards in the Bureau of Professional and Occupational Affairs. Your job description also provides that you must possess the knowledge and experience to: conduct investigations of sensitive and complex matters; determine what the specific complaint is in any given case so that there are no underlying or hidden reasons for the charges; formulate a plan of action to determine who will be interviewed and in what order and whether any releases should be obtained and if any documents are necessary during the interview; plan any other open cases and incorporate them in the plan of action; give consideration to any investigative resources for your interviews; have the proper demeanor so as to obtain the required information without intimidating the persons interviewed; do advance work for the interview; have the ability to reduce the interviews and data in a logical manner and in written form; prepare and submit periodic status reports; retain personal notes of investigations in the event that it is necessary for testimony before any hearings or court proceedings, and finally have the skills in certain cases to act as an undercover investigator to play the part of a non suspecting person seeking services of a licensee. Additionally, the investigator must participate in formal and on the job training programs and assist in field training or in guiding certain aspects of field operations for occupational licensing inspectors and performing other duties as are assigned and required. Although your job description was modified in 1987, it appears from information submitted that the description is substantively the same with only a few minute changes. 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; Mr. Joseph F. Garlan Page 6 (2) administering or monitoring grants or subsidies; planning or zoning; inspecting, licensing, regulating or auditing any person; or 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. 5402. "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. S402 The Regulations of the State Ethics Commission similarly define the term "public employee" as above and also provide 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: ( -1 -) has the authority to make final decisions; ( -2 -) has the authority to forward or stop recommendations from being sent to Mr. Joseph F. Garlan Page 7 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 recommen- dations; 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. (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. Mr. Joseph F. Garlan Page 8 (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 X1.1. 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 v. State Ethics Commission, 79 Pa. Commw. Ct. 491, 470 A.2d 659 (1984), 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. Additionally, Commonwealth Court upheld the practice of reviewing the nature of the job itself, rather than the specific variations of functions of individuals in that position, to determine whether they are public officials /employees. 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 a Professional Conduct Investigator involves "specialized investigative work in detecting violations of the conduct standards for several Commonwealth and Occupational Licensing Boards..." Without restating the specific duties and responsibilities that have been enumerated in the classification Mr. Joseph F. Garlan Page 9 specification as well as the job description, it is sufficient to note that great emphasis is placed upon an individual's "objectivity, judgment, discretion, and a high degree of technical expertise in ascertaining and presenting findings ". Additionally, your duties and responsibilities are performed with considerable independence and are reviewed by a regional director for adherence to establish procedures. The fact that a Professional Conduct Investigator may carry an assignment checklist or investigative instructions with him in the field does not rise to a level of on -site supervision. Although you assert that you no longer work independently in the field because of the checklist, the information provided establishes that the checklist is not a rigid investigative directive. To the contrary, it appears that you may make requests to interview other people and ask other questions. You challenge the filing requirement because you assert that other investigative agencies like the state police and the Office of Attorney General do not have to file. Investigators of this Commission as well those of the Crime Commission and Office of Attorney General do file Statements of Financial Interests. The conclusion must be, based upon your classification specification and job description that you are a "public employee" as that term is defined under the Ethics Act and the Regulations of,this Commission. Consequently, you are required, if you have not already done so, to file a Statement of Interests within fifteen (15) days of the issuance of this Opinion. Please file the original with this Commission to insure compliance, provide the yellow copy to your personnel office and retain the green copy for your records. IV. Conclusion: You as a Professional Conduct Investigator in the Department of State 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. 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 Mr. Joseph F. Garlan Page 10 Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By th Commission, .349e,./ ena G. Hughes, Chairman