HomeMy WebLinkAbout92-006 Rinehart-PasdaDear Ms. Rinehart- Pasda:
I. ISSUE:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
OPINION OF THE COMMISSION
Before: James M. Howley, Chair
Daneen E. Reese, Vice Chair
Roy W. Wilt
Austin M. Lee
Allan M. Kluger
DATE DECIDED: September 15, 1992
DATE MAILED: September 18, 1992
Ms. Rebecca Rinehart -Pasda
Business Agent
Pennsylvania Social Services Union
Suite 201B
2030 Tilghman Street
Allentown, PA 18104 -4399
92 -006
Re: Vocational Rehabilitation Counselor . 1; Vocational
Rehabilitation Counselor 2; Vocational Rehabilitation
Counselor for the Deaf; Vocational Rehabilitation Counselor
for Placement; Vocational Rehabilitation Supervisor;
Department of Labor and Industry; Public Employee; FIS; Appeal
of Advice.
This Opinion is issued pursuant to the appeal of the Advice of
Counsel, No. 92 -615 issued on July 17, 1992.
Whether under the Public Official and Employee Ethics Law
individuals in the positions of Vocational Rehabilitation Counselor
1, Vocational Rehabilitation Counselor 2, Vocational Rehabilitation
Counselor for the Deaf, Vocational Rehabilitation Counselor for
Placement and Vocational Rehabilitation Supervisor are to be
considered "public employees" required to file Statements of
Financial Interests.
II. FACTUAL BASIS FOR DETERMINATION:
The issue which you have presented was originally processed as
a request for an advice of counsel and as a result Advice of
Counsel No. 92 -615 was issued on July 17, 1992. That Advice
Rinehart - Pasda, Opinion 92 -006
September 18, 1992
Page 2
concluded that the Commonwealth employees in the following job
classes are to be considered "public employees" as that term is
defined in the Ethics Law: Vocational Rehabilitation Counselor 1;
Vocational Rehabilitation Counselor 2; Vocational Rehabilitation
Counselor for the Deaf; Vocational Rehabilitation Counselor for
Placement; and Vocational Rehabilitation Supervisor. Accordingly,
employees in each of the above categories were advised that they
must file Statements of Financial Interests for each year in which
the position is held and for the year following termination of
service.
On July 27, 1992, this Commission received your letter of July
24, 1992, wherein you appealed the above Advice. By letter dated
August 19, 1992, you were notified of the date, time and location
of the public meeting.
The appeal of advice does not delineate the nature of
objection to the Advice other than to indicate the exercise of your
right to appeal.
At the hearing on your appeal, you proffered the following
arguments in support of your appeal: the five classifications of
Vocational Rehabilitation positions do not fall within the
definition of public employee; the Vocational Rehabilitation
Counselor 1 only arranges for evaluations as to which the
Vocational Rehabilitation Supervisor must authorize expenditures
and all classifications expect Vocational Rehabilitation Counselor
1 merely approve epxenditures from a fee schedule with any
expenditure over $5000 needing the approval of the Office of
Vocational Rehabilitation.
Although a Vocational Rehabilitation Counselor may only select
services, items or equipment from an agency approved list or fee
schedule, the counselor does have latitude to choose within that
list as to various vendors. In addition, a Vocational
Rehabilitation Counselor may advise as to any dissatisfaction with
a given vendor which commentary may be considered by the agency in
determining whether that vendor should be removed from the approved
list.
We shall review each of the six positions to determine whether
the individuals are public employees required to file the Financial
Interests Statements under the Ethic Law.
Since you argee with the summarization of the respective job
descriptions and classifications /specifications for each job
category, we will adopt those summarizations from the advice of
counsel.
pinehart- Pasda, Opinion 92 -006
September 18, 1992
Page 3
The Vocational Rehabilitation Counselor 1 performs entry level
professional work in the field of vocational rehabilitation of
persons with disabilities. Work is performed under the direct
supervision of a Vocational Rehabilitation Supervisor. Services
provided by this employee include selecting, preparing for, and
following a rehabilitation plan which leads toward employment.
Although work is performed in accordance with federal regulations
and departmental policies and procedures, these employees are
expected to exercise independent judgment in using a wide variety
of medical, social, and vocational resources in achieving
objectives. Rehabilitation plans are reviewed and approved by a
Vocational Rehabilitation Supervisor prior to implementation, with
subsequent review of work in progress, as required, through
reports, conferences, and evaluation of case records. Examples of
the work of a vocational Rehabilitation Counselor 1 include, but
are not limited to:
a. Maintaining and developing liaisons with referral sources
and service providers to assure that potential vocational
rehabilitation clients are identified and that service
programs address client needs;
b. Supervising facilities to insure that they understand
agency objectives and to develop a positive working
relationship;
c. Visiting assigned facilities on a scheduled or as- needed
basis and screening referrals to the agency;
d. Staffing cases with the supervisor and medical consultant
to establish eligibility for services;
e. Arranging for medical, psychological, psychiatric,
physical, or other evaluations as a part of determining
potential for vocational rehabilitation;
f. Evaluating information with a medical consultant to
ascertain the potential for rehabilitation;
Arranging for services needed to prepare the disabled
applicant for employment, such as medical and psychiatric
services, vocational training, and financial aid;
h. Maintaining, evaluating and documenting client progress
through the vocational rehabilitation process and making
appropriate rehabilitation plan amendments to enhance the
opportunity for client success; and
g •
VOCATIONAL REHABILITATION COUNSELOR 1
Rinehart - Pasda, Opinion 92 -006
September 18, 1992
Page 4
i. Providing counseling, guidance, and job placement
services as needed to disabled clients and contacting
employers to enhance placement opportunities.
VOCATIONAL REHABILITATION COUNSELOR 2
The Vocational Rehabilitation Counselor 2 develops and
approves vocational rehabilitation plans and the expenditure of
funds for diagnostic and Individualized Written Rehabilitation Plan
service costs. This class also serves as assigned counselors for
designated geographical areas for certain blind or visually
impaired clients. Services include selecting, preparing for and
following a rehabilitation plan which leads toward employment.
Work is performed in accordance with federal regulations and
departmental policies and procedures, but employees are expected to
exercise independent judgment in using a wide variety of medical,
social, and vocational resources in achieving objectives. Casework
supervision is given only as needed with general supervision being
provided for all other aspects of work by a
Rehabilitation Supervisor. Examples of the work of a Vocational
Rehabilitation Counselor 2 include, but are not limited to, the
following:
a. Maintaining and developing liaisons with referral sources
and service providers to assure that potential vocational
rehabilitation clients are identified and that service
programs address clients needs.
b. Developing and maintaining referral sources' - 'and"
supervising clients at specialized rehabilitation
facilities for the severely disabled;
c. Arranging for and approving expenditures associated with
medical, psychological, psychiatric, physical, or other
evaluations as a part of determining potential for
vocational rehabilitation, and assuring vendor payment;
d. Determining an applicant's potential for vocational
rehabilitation on the basis of medical, psycho - social,
vocational and client information, guided by legislation,
regulations and agency policy but utilizing professional
judgment, consultation as appropriate with related
professionals, and the client's participation;
e. In consultation with the client, and other appropriate
interested parties, determining an appropriate vocational
goal and developing and approving a mutually agreed upon
Individualized Written Rehabilitation Plan to achieve the
established vocational goal;
Rinehart- Pasda Opinion 92 -006
September 18, 1992
Page 5
f. Arranging for and approving expenditures for services
needed to prepare the disabled applicant for employment,
such as medical and psychiatric services, vocational
training and financial aid;
g. Maintaining, evaluating and documenting client progress
through the vocational rehabilitation process and making
appropriate rehabilitation plan amendments to enhance the
opportunity for client success;
h. Following up with the client regularly to review progress
and ultimately to determine the appropriateness of case
closure;
i. Providing job placement services to disabled clients and
contacting employers to enhance placement opportunities;
Providing on the job training to new or other subordinate
level counselors, and serving as resident expert to lower
level counseling staff in the handling of unusual or
extremely difficult case problems;
k. Performing a variety of delegated administrative
responsibilities such as serving as counselor coach,
directing field work students or interns, medical review
functions, or office training; and
j•
l. Developing and coordinating community outreach efforts.
VOCATIONAL REHABILITATION COUNSELOR FOR THE DEAF
The Vocational Rehabilitation Counselor for the Deaf performs
specialized professional work in the field of vocational
rehabilitation of persons unable to hear or understand speech, even
with amplification. An employee in this class performs specialized
work designed to guide such persons in selecting, preparing for and
obtaining employment at the completion of a vocational
rehabilitation plan. Work involves designation as the counselor
for a large or a heavily populated geographical area for such
clients. Work is performed in accordance with federal regulations
and departmental policies and procedures, but employees are
expected to exercise considerable independent judgment in using a
wide variety of medical, social, and vocational resources in
achieving the objectives. Work also includes developing and
approving vocational rehabilitation plans and the expenditure of
funds for diagnostic and Individualized Written Rehabilitation Plan
service costs. Casework supervision is given only as needed in
difficult cases, with general supervision provided for all other
aspects of work by a Vocational Rehabilitation Supervisor.
Examples of work a Vocational Rehabilitation Counselor for the Deaf
Rinehart- Pasda, Opinion 92 -006
September 18, 1992
Page 6
include, but are not limited to, the following:
a. Providing rehabilitation counseling services to a
caseload composed of all the clients in a district or a
large, heavily populated geographical area who are unable
to communicate verbally, even with amplification;
b. Developing and maintaining referral sources in both the
hearing and deaf communities in the assigned geographical
area;
c. Arranging for and approving expenditures associated with
medical, psychological, psychiatric, physical or other
evaluations and related interpreter services as part of
determining potential for vocational rehabilitation, and
assuring vendor payment;
d. Determining the applicant's potential for vocational
rehabilitation on the basis of medical, psycho - social,
vocational and client information, guided by legislation,
regulations and agency policy, but utilizing professional
judgment, consultation as appropriate with related
professionals and the client's participation;
e. In consultation with the client, and other appropriate
interested parties, determining an appropriate vocational
goal in developing and approving a mutually agreed upon
Individual Written Rehabilitation Plan to achieve the
established vocational goal;
Arranging for and approving expenditures for services
needed to prepare the disabled applicant for employment,
such as medical and psychiatric services and vocational
training;
g. Maintaining, evaluating, and documenting client progress
through the vocational rehabilitation process and making
appropriate rehabilitation plan amendments to enhance the
opportunity for client success;
h. Providing job placement services to disabled clients, and
contacting employers to enhance placement opportunities;
i. Maintaining liaison with community service providers to
assure the service programs address client needs; and
Developing and coordinating community outreach efforts.
VOCATIONAL REHABILITATION COUNSELOR FOR PLACEMENT
•
Rinehart - Pasda, Opinion 92 -006
September 18, 1992
Page 7
The Vocational Rehabilitation Counselor for Placement performs
specialized professional placement work in the field of vocational
rehabilitation of persons with disabilities with emphasis upon the
most severely disabled. Work involves designation as the counselor
responsible for developing and maintaining the placement program
for a district or a large or heavily populated geographical area,
including providing placement assistance to other counselors and
actual placement responsibility for a caseload of the most
difficult to place clients. Work is performed in accordance with
established procedures, but employees are expected to exercise
considerable independent judgment in using a wide variety of
medical, social, and vocational resources in achieving the
objectives. Work is given general review by a Vocational
Rehabilitation Supervisor through reports, conferences, and an
evaluation of case records. Examples of the work of the Vocational
Rehabilitation Counselor for Placement include, but are not limited
to, the following:
a. Developing maintaining the placement program for a
district office or a large or heavily populated
geographical area;
b. Developing and maintaining referral sources in the
designated geographical area to assure that potential
vocational rehabilitation clients are identified;
c. Maintaining liaison with community service providers to
assure that service programs address client needs;
d. Arranging for and approving expenditures associated with
medical, psychological, psychiatric, physical, or other
evaluations as a part of determining potential for
vocational rehabilitation, and assuring vendor payment;
e. Determining the applicant's potential for vocational
rehabilitation on the basis of medical, psycho - social,
vocational and client information, guided by legislation,
regulations and agency policy but utilizing professional
judgment, consultation as appropriate with related
professionals and the client's participation;
f. In consultation with the client, and other appropriate
interested parties, determining an appropriate vocational
goal and developing and approving a mutually agreed upon
Individualized Written Rehabilitation Plan to achieve the
established vocational goal;
g. Identifying client and agency responsibilities, approving
and authorizing services to be provided, and similar
benefits to be utilized to achieve the rehabilitation
Rinehart- Pasda Opinion 92 -006
September 18, 1992
Page 8
plan;
h. Maintaining, evaluating, and documenting client progress
through the vocational rehabilitation process and making
appropriate rehabilitation plan amendments to enhance the
opportunity for client success;
i. Following up with the client regularly-to review progress
and ultimately to determine the appropriateness of case
closure;
. Providing placement assistance as needed to assist the
client in achieving the established vocational goal, and
contacting employers to enhance employment opportunities;
and
j
•
k. Providing employers with technical advice in such matters
as job and task analysis, job engineering and
restructuring, and work site and environmental
modifications to permit employment of persons with
disabilities under conditions of maximum benefit to the
client and the employer.
VOCATIONAL REHABILITATION SUPERVISOR
The Vocational Rehabilitation Supervisor performs professional
work of a supervisory and administrative nature in the field of
vocational rehabilitation of persons with disabilities.. Employees
in this class plan, organize, direct and supervise a unit of
vocational rehabilitation counselors and support staff. This class
also serves to organize and supervise a unit of employees assigned
individually as the counselor for a designated geographical area
for certain blind or visually impaired clients. Supervision
includes planning and assigning work; reviewing work performance to
assure compliance with applicable state and federal legislation,
regulations, program policies, and guidelines; evaluating employee
performance; receiving and resolving grievances and complaints;
interviewing and recommending employee selection; and training
subordinates. An important aspect of this class is developing and
implementing program and personnel initiatives that will enhance
the delivery of quality vocational rehabilitation services to
persons with disabilities. This work may involve special
assignments as well as activating community liaison with public and
private organizations, agencies, advocacy groups, and consumers.
Work is performed under supervision and general direction and is
reviewed for conformance to established policies, procedures, and
regulations through reports and conferences by a vocational
rehabilitation manager, or district manager for Blindness and
Visual Services. Examples of the work of a Vocational
Rehabilitation Supervisor include, but are not limited to, the
Rinehart- Pasda Opinion 92 -006
September 18, 1992
Page 9
following:
a. Planning, organizing, directing, and supervising a unit
of vocational rehabilitation counselors and support
staff;
b. Assigning work to subordinate staff, coordinating unit
activities, directing work flow, and monitoring
subordinate staff activity;
c. Serving as district training supervisor by developing
regular in- service training programs for district staff;
d. Developing, through individual and group conferences, the
efficiency and skills of subordinate employees;
e. Functioning as a specialist in designated program/
disability areas and acting as a technical resource to
district office staff, management, and the community;
f. Serving as team leader in three -way staffing (supervisor,
counselor, medical consultant) of cases to determine
client eligibility and feasibility for services;
g. Advising subordinate staff regarding possible services to
be considered and appropriate agency procedures related
to case documentation;
Participating in the client appeal process at an informal
level in order to resolve client dissatisfaction;
k. Approving subordinates' expense accounts;
1. Planning for and monitoring the unit's expenditure of
funds for the purchase of case services;
m. Approving authorization of client services monies and
conducting regular fiscal purges;
n. Participating in special projects and program development
efforts, both local and statewide and inter /intra agency,
to form and implement service delivery initiatives,
policies, and guidelines;
j .
Reviewing and approving casework activity;
Resolving program implementation and service delivery
problems with subordinate staff, persons with
disabilities, and the community;
t .nehart- Pasda, Opinion 92 -006
September 18, 1992
Page 10
o. Maintaining active, ongoing community liaison with public
and private organizations, agencies, advocacy groups and
consumers to assess and modify as needed the delivery of
vocational rehabilitation services;
p. Participating in the development and implementation of
cooperative agreements in the delivery of services;
Coordinating schedule for compliance reviews at
facilities within the district and reviewing completed
forms prior to forwarding to Harrisburg.
q-
r. Marketing agency programs and services through suitable
public relations activities; and
s. Serving as district SSI /SSDI Coordinator by disseminating
program regulations, reviewing SSI /SSDI allowed cases,
consulting with staff on such cases, coordinating
feedback information on rehabilitated cases to Central
Office, participating in statewide advisory and training
sessions regarding SSI /SSDI program.
III. DISCUSSION:
We must determine whether employees in the positions of
Vocational Rehabilitation Counselor 1, Vocational Rehabilitation
Counselor 2, Vocational Rehabilitation Counselor for the Deaf,
Vocational Rehabilitation Counselor for Placement and Vocational
Rehabilitation Supervisor are public employees under the Ethics Law
so as to be subject to the provisions of the Ethics Law including
the filing requirements as to Statements of Financial Interests.
Initially, we note the following definition of the term
"public employee" under Act 9 of 1989 as well as the current
regulations on the term as they appear in 51 Pa. Code S1.1.
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
R }ehort- Pasda, Opinion 92 -006
September 18, 1992
Page 11
65 P.S. 5402.
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 minimis 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.
Section 1.1. Definitions.
Public employe - --
(i) The term includes an individual:
(A) Who is employed by the Commonwealth
or a political subdivision and who is
responsible for taking or recommending
official action of a nonministerial
nature with regard to:
(I) Contracting or procurement.
(II) Administering or monitoring
grants or subsidies.
(III) Planning or zoning.
(IV) Inspecting, licensing,
regulating or auditing a person.
(V) An activity where the official
action has greater than a de minimis
economic impact.
(B) who meets the criteria of either
subclause (I) or (II):
(I) The individual is:
Rinehart- 7asda, Opinion 92 -006
September 18, 1992
Page 12
( -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.
( -c -) The supervisor of a
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.
( -4 -) Makes the final
technical recommen-
dations.
( -b -) whose recommendations or
actions:
( -1 -) Are an inherent
and recurring part of his
position.
( -2 -) Affect organi-
zations other than his
own organization.
(ii) The term does not include individuals who
Rinehart- Papda, Opinion 92 -006
September 18, 1992
Page 13
are employed by the Commonwealth or a politi-
cal subdivision of the Commonwealth in
teaching as distinguished from administrative
duties.
(iii) Persons in the positions listed in
subparagraphs (A) -(F) are generally considered
public employees.
(A) Executive and special directors or
assistants reporting directly to the
agency head or governing body.
(B) Commonwealth bureau director,
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 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 in
subparagraphs (A) -(C) are generally not
considered public employes.
(A) City clerks, other clerical staff, road
masters, secretaries, police officers, welfare
case workers, maintenance workers, construc-
tion workers, detectives, equipment operators .
and recreation directors.
B Pasda, Opinion 92 -006
September 18, 1992
Page 14
51 Pa. Code 51.1.
(B) Law clerks, court criers, court
reporters, probation officers, security guards
and writ servers.
(C) School teachers and clerk of the
schools.
In making our determination, we must be guided by the
principles espoused by Commonwealth Courtin Phillips v. SEC, 79
Pa. Commonwealth Ct. 491, 470 A.2d 659 (1984), that in determining
whether an individual is a public employee required to file the
Financial Interests Statement under the Ethics Law, there is a
broad application for determining coverage, and a strict
construction as to limiting any exclusions to the foregoing
definition:
"The Ethics Act, being remedial legislation, is to
be liberally construed. See, Kremer v. State Ethics
Commission, 56 Pa. Commonwealth Ct. 160, 424 A.2d 968
(1981). Thus coverage under the Act should be broadly,
rather than narrowly, determined; conversely, exclusions
under the Act should be narrowly, rather than broadly,
determined. Petitioner's position, SCA I, is not
denominated in the list of positions designated by the
Commission or generally not within the public employe
classification. See, footnote 3 supra. In light of the
liberal, expansive interpretation to be given the Act's
coverage provisions and the substantial evidence
supportive of the findings underpinning the Commission's
conclusion that a CSA I is a public employee position, we
reject Petitioner's argument."
Id. at 496.
In addition, the Commonwealth Court upheld the use by this
Commission of applying an objective test to determine whether an
individual fits within the statutory definition of public employee,
that is, the controlling element is the duties and responsibilities
as specified in the classification specification and /or job
description rather than the specific duties or variations thereof
which any particular employee in a given class would or would not
perform:
"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
Rinehart- Pasda Opinion 92 -006
September 18, 1992
Page 15
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)
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 (1976). Accordingly, we find no
error in the Commission's use of an objective test."
. at 494.
Having set forth the parameters under which we must make our
determination, we will now apply the statutory definition and
regulations to each of the six job descriptions to determine
whether the individuals in those positions are subject to the
Ethics Law.
It is patently' clear that employees in the positions of
Vocational Rehabilitation Counselor 1, Vocational Rehabilitation
Counselor 2, Vocational Rehabilitation Counselor for the Deaf,
Vocational Rehabilitation Counselor for Placement and Vocational
Rehabilitation Supervisor are public employees subject to the
filing requirements and provisions of the Ethics Law.
As to the position of a Vocational Rehabilitation Counselor I,
this is described as entry level professional work in the field of
vocational rehabilitation of persons with disabilities with the
employee being able to select, prepare and follow a rehabilitation
plan for employment. The employee exercises independent judgement
in using a wide variety of medical, social and vocational
resources. The individual visits and supervises facilities to
ensure an understanding of agency objectives as well as developing
a positive working relationship. The individual arranges for
medical, psychological, psychiatric, physical or other evaluations
and evaluates information with a medical consultant as well
arranges for services needed to prepare the disabled applicant for
employment. The individual maintains, evaluates and documents
progress and makes appropriate rehabilitation plan amendments as
needed.
The individuals in the position of the Vocational
Rehabilitation Counselor I meet the first and fifth criteria of the
statutory definition of public employee as well as subsection
(B)(II) of the Regulation as to public employee.
As to employees in the position of Vocational Rehabilitation
Counselor II, these positions require the individual to develop and
Rinehart- Pasda, Opinion 92 -006
September 18, 1992
Page 16
approve vocational rehabilitation plans and the expenditure of
funds for diagnostic and Individualized Written Rehabilitation Plan
service costs. The individuals serve as assigned counselors for
designated geographical areas for the blind or visually impaired.
The individuals may select, prepare and follow a rehabilitation
plan which leads to employment. The individuals are expected to
exercise independent judgement using a variety of medical, social
or vocational resources in achieving objectives. As to specific
duties, they include supervisory functions, making determinations
and evaluations, arranging for and approving expenditures and other
duties listed as noted above.
Once again as to the Vocational Rehabilitation Counselor II,
duties and responsibilities fit within subparagraphs one and five
of the statutory definition of public employee as well as within
subsection (B)(II) of the Regulations.
As to the positions of the Vocational Rehabilitation Counselor
for the Deaf and Vocational Rehabilitation Counselor for Placement,
although it does appear that these two groupings of positions are
more narrow in terms of cliental, the duties and responsibilities
of those individuals parallel the functions performed by a
Vocational Rehabilitation Counselor II. Therefore, employees in
those positions also fall within the statutory definitions in
subparagraphs one and five as well as within the. Regulation on
public employee under subsection (B)(II).
Finally, as to the position of Vocational Rehabilitation
Supervisor, this is work of a supervisory /administrative nature
wherein the employees plan, organize, direct and supervise a unit
of counselors and support staff. The supervisory aspects of the
position include planning, assigning work, reviewing work
performance to assure compliance with various state and federal
laws and regulations, resolving grievances, training subordinates
and other activities. The individual in this position must also
develop and implement program and personnel initiatives to enhance
the programs with specific job duties as summarized above. Clearly
the individuals in the supervisory position fall within
subparagraphs 1, 3 and 5 of the statutory definition of public
employee as well as fit within the criteria of the regulations
(B)(I) and (II).
It is patently clear as to all of these positions that there
is at a minimum the ability to recommend official action as to
procurement which is encompassed within the statutory definition of
public employee.
As a post script, we find it noteworthy to compare the duties
and responsibilities of the individuals in these five positions
with that of the position of the claims settlement agent I (CSAI)
Rinehart - Pasda, Opinion 92 -006
September 18, 1992
Page 17
in the Phllips case. In the cited case, the individual argued
that his position of investigating the financial standing of
present /past public assistance clients in order to obtain
restitution or reimbursement, analyze information on claims, forms
and to take steps to encumber financial resources through liens,
make recommendations as to settlement or recommend compromise
settlements as to claims did not confer upon him the degree of
discretion and proximity to final decisions so as to include him
within the statutory definition of public employee. The second
argument offered by Phillips was that police officers, detectives
and welfare case workers exercise more discretion and since those
positions are not covered, then his position as a CSA I should not
be a public employee position under the Ethics Law. As noted
above, the court rejected all of the arguments proffered by
Phillips and affirmed the decision of this Commission that Phillips
was a public employee under the Ethics Law.
We find the Phillips case to be noteworthy because in our view
the various Vocational Rehabilitation Counselors exercise
comparable if not more discretion as to their duties and
responsibilities as the individual in the Phillips case who was
found to be a public employee under the Ethics Law.
Lastly, it is appropriate that there be Ethics Law coverage as
to these classifications. A Vocational Rehabilitation Counselor or
member of his immediate family could be associated with a business
which is on the approved vendor list. The potential exists in such
situations for the Vocational Rehabilitation Counselor to favor the
business with which he or a member of his immediate family is
associated. Through an application of the Ethics Law and the
filing of Financial Interests Statements, any potential or actual
conflict of a Vocational Rehabilitation Counselor selecting the
vendor which he or his immediate family member is associated may be
controlled.
The propriety of the proposed conduct has only been addressed
under the Ethics Law; the applicability of any other statute, code,
ordinance, regulation or other code of conduct other than the
Ethics Act has not been considered in that they do not involve an
interpretation of the Ethics Law.
IV. CONCLQSION:
Vocational Rehabilitation Counselor 1, Vocational
Rehabilitation Counselor 2, Vocational Rehabilitation Counselor for
the Deaf, Vocational Rehabilitation Counselor for Placement and
vocational Rehabilitation Supervisor are to be considered "public
employees" under the Ethics Law required to file Statements of
Financial Interests.
Rinehart - Pasda, Opinion 92 -006
September 18, 1992
Page 18
Pursuant to Section 7(10), the person who acts in good faith
on this opinion issued to him shall not be subject to criminal or
civil penalties for so acting provided the material facts are as
stated in the request.
This letter is a public record and will be made available as
such.
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 the Commission,
Alme4e
James M. Howley
Chair