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HomeMy WebLinkAbout93-008 SchmidtDear Ms. Schmidt: 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 Dennis C. Harrington Roy W. Wilt Austin M. Lee Allan M. Kluger Joseph W. Marshall, III DATE DECIDED: December 7, 1993 DATE MAILED: December 10, 1993 93 -008 Louise Anne D. Schmidt 854 Old Huntingdon Pike Huntingdon Valley, PA 19006 Re: Vocational Rehabilitation Counselor 2; Department of Public Welfare; Bureau of Blindness and Visual Services; Public Employee; FIS; Appeal of Advice. This Opinion is issued pursuant to the appeal of Advice of Counsel, No. 93 -581 issued on July 13, 1993. Whether under the Public Official and Employee Ethics Law an individual in the position of Vocational Rehabilitation Counselor 2, Bureau of Blindness and Visual Services, Department of Public Welfare, is to be considered a "public employee" 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 based upon your appeal filed with your department wherein you challenged the requirement that you file a Financial Interests Statement (FIS). As a result, Advice of Counsel No. 93 -581 was issued on July 13, 1993 which concluded that you are to be considered a "public employee" as that Louise Anne D. Schmidt December 10, 1993 Page 2 term is defined in the Ethics Law in the position of a Vocational Rehabilitation Counselor 2 so that you must file an FIS for each year in which you hold your position and for the year following termination of service. On July 27, 1993, this Commission received your FAX transmission, wherein you appealed the above Advice. By letter dated August 20, 1993 you were notified of the date, time and location of the public meeting. The appeal of advice does not delineate the nature of your objection to the Advice other than to indicate the exercise of your right to appeal. The Financial Disclosure Appeal Form filed with your department raises five points of challenge: your job only involves counseling and placement and caseworkers /social workers in your office do not complete the form; you have never had to fill out the form in over 25 years of state service; filling out the form is an invasion of your privacy and that of your spouse; your job duties differ from other departments, you do not authorize expenditures, you make no approvals and the "rules" of the Commission do not encompass your position; and the ruling of your department gave no specifics so as to be meaningless. In a brief in support of your appeal of advice, received on September 22, 1993, you raise the following points: 1. You state that the job description relied upon in the Advice of Counsel does not accurately describe your job and that you do not arrange for expenditures. You enclosed a copy of your current job description and that document is incorporated herein by reference. 2. You submitted other documentation which you argue does not allow you to make recommendations; restricts your involvement in bids; and removes you from the definition of a "public employee" under the Ethics Law. 3. You attempt to distinguish Rinehart /Panda, Opinion No. 92 -006, by stating that although the classifications are the same, your jobs are not because the Department of Public Welfare, by its mission and purpose, has restricted your actions. 4. You believe that the Ethics Law invades your privacy in that the FIS requires you to list joint assets belonging to you and your husband. At the public hearing held on December 7, 1993, you raised the following arguments: Louise Anne D. Schmidt December 10, 1993 Page 3 1. You have been a Vocational Rehabilitation Counselor II since 1985 and this year is the first year you were required to file an FIS. 2. A Vocational Rehabilitation Counselor II in the Department of Labor and Industry has field offices and more independence than a Vocational Rehabilitation Counselor II in the Department of Public Welfare and a Vocational Rehabilitation Counselor II in the Department of Public Welfare does not have the authority to sign for anything. 3. You interview clients and inform them of services available to them and they select which services they want. 4. Individual Written Rehabilitation Programs are prepared by you and the client and submitted to your supervisor. This form lists the services that the client feels he needs in order to obtain employment. You give him options and he chooses from the available service vendors. You claim that you never disagree with the clients as to their assessment of their own needs. 5. You believe that your job description sets forth more authority than you actually have. 6. While the job description does apply to your job, your duties are being eroded slowly. 7. You do not make recommendations to clients in terms of one service provider over another. 8. You had no participation in the preparation of your job description. 9. You do not "guide" a client in the selection of an appropriate vocational goal as indicated in your job description. You challenged the summarization of your job description and classification /specification from the Advice of Counsel. Your personnel office submitted a job description dated 1990 and specification classification which was used for the Advice of Counsel. According to those documents, as an employee in this position, you are responsible for providing vocational rehabilitation services to blind, visually impaired and deaf /blind persons. Your duties include obtaining information concerning applicant's physical or mental condition; arranging for expenditures associated with medical, psychological, physical or other evaluations as part of determining potential for rehabilitation; evaluating information, in conjunction with medical consultants, to ascertain potential for rehabilitation; arranging Louise Anne D. Schmidt December 10, 1993 Page 4 for expenditures for services needed to prepare applicants for employment; providing counseling services to assist applicants in social adjustments; providing counseling and instruction to clients to assist in adjustment to disabilities; providing the full range of vocational rehabilitation services; preparing case records and case reports; serving as a resident expert to lower level counseling staff in the handling of unusual or extremely difficult case problems; performing a variety of administrative responsibilities such 7.9 serving as counselor coach, directing field work students, medical review functions, and office training; developing and coordinating community outreach efforts; providing on- the -job training to new or other subordinate level counselors; providing job placement services to disabled clients and contacting employers to enhance placement opportunities; maintaining and developing liaisons with referral sources and service providers to assure that potential vocational rehabilitation clients are identified and that programs address client needs; developing and approving vocational rehabilitation plans; and exercising independent judgment in using a wide variety of medical, social and vocational resources in achieving objectives. In your brief in support of your appeal, you submitted a job description dated June, 1993. The duties of your job pursuant to this document include assessing client need for vocational rehabilitation services by conducting personal interviews, completing the application for services, securing medical ophthalmological /optometric, psychological (if necessary) and personal data in order to determine the client's eligibility for services; developing an Individual Written Rehabilitation Program with the client by identifying and describing the client's handicap to employment, performing and documenting a thorough diagnostic work -up including vocational assessment, guiding the client in the selection of an appropriate vocational goal and specifying those services needed in order to render the client employable; assisting the client during the implementation of services by providing counseling, securing additional information and amending the program of services as required in order to prepare the client for suitable employment; assisting the client in the placement effort by discussing job seeking skills, and outlining employer contacts to be made both by the client and the counselor in order to secure appropriate employment; providing post - employment services if needed by assessing the client's problems in employment and providing those services which alleviate the problem in order to sustain the client in employment; and practicing caseload management by establishing priorities, insuring proper status flow, and through regular supervisory conferences in order to meet all possible service needs of clients. The job description contains a certification signed by you that to the best of your knowledge, all statements in the job description are correct. Louise Anne D. Schmidt December 10, 1993 Page 5 At the hearing, you admitted that you suggest particular types of services to clients and that you consider yourself a resource for your clients. You also admitted that in performing your job you take diagnostic information from clients, evaluate the information and decide whether to prepare an Individual Written Rehabilitation Program for the clients. III. DISCUSSION: We must determine whether an employee in the position of Vocational Rehabilitation Counselor 2 is a public employee under the Ethics law so as to be a subject to the provisions of the Ethics Law including the filing requirements as FIS. Initially, we note the following definition of the term "public employee" under Act 9 of 1989 and under the current Regulations in 51 Pa. Code §11.1. 65 P.S. 5402. Act 9 of 1989 - "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 minimis nature on the interests on any person. "Public employee" shall not include individuals who are employed by the State or any political subdivision thereon in teaching as distinguished from administrative duties. The Regulation - Louise Anne D. Schmidt December 10, 1993 Page 6 Public employe -- (i) The term includes an individual 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 one or more of the following: (A) Contracting or procurement. (B) Administering or monitoring grants or subsidies. (C) Planning or zoning. (D) Inspecting, licensing, regulating or auditing a person. (E) Other activities in which the official action has greater than a de minimis economic impact. (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of "public employee ": (A) The individual normally performs his responsibility in the field without onsite supervision. (B) The individual is the immediate supervisor of a person who normally performs his responsibility in the field without onsite supervision. (C) The individual is the supervisor of a highest level field office. (D) The individual has the authority to make final decisions. (E) The individual has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions. (F) The individual prepares or supervises the preparation of final Louise Anne D. Schmidt December 10, 1993 Page 7 recommendations. (G) The individual makes final technical recommendations. (H) The individual's recommendations or actions are an inherent and recurring part of his position. (I) The individual's recommendations or actions affect organizations other than his own organization. (iii) 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. (iv) Persons in the following positions are generally considered public employes: (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. (D) Engineers, managers and secretary - treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, administrative officers, housing and building inspectors, investigators, auditors, 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 superintendents, assistant superintendents, school business managers and Louise Anne D. Schmidt December 10, 1993 Page 8 principals. (G) Persons who report directly to heads of executive, legislative and independent agencies, boards and commissions except clerical personnel. (v) Persons in the following positions are generally not considered public employes: (A) City clerks, other clerical staff, road masters, secretaries, police officers, maintenance workers, construction workers, equipment operators and recreation directors. (B) Law clerks, court criers, court reporters, probation officers, security guards and writ servers. (C) School teachers and clerks of the schools. 51 Pa. Code §11.1. In applying the Ethics law and Regulations to the instant job description and classification /specification, we must apply the principles espoused by Commonwealth Court in Phillips v. SEC, 79 Pa. Commonwealth Ct. 491, 470 A.2d 659 (1984). The Court opined that in determining whether an individual is a public employee required to file the FIS 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. 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 Louise Anne D. Schmidt December 10, 1993 Page 9 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 represented them in his testimony. This Court has utilized such an analogous question in Gahres v. Unemolovment 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. Id. at 494 In applying the Ethics Law, the Regulations and judicial precedent to the position of Vocational Rehabilitation Counselor 2, it is clear that an individual in this position is a public employee subject to the filing requirements and provisions of the Ethics Law. The classification specification provides in part that an employee in this class develops and approves a vocational rehabilitation plan. Services by the employee include selecting, preparing and following a rehabilitation plan which leads to employment. The employee counsels on problems of personal and social adjustment. It is expected that the employee will exercise independent judgment using a variety of medical, social and vocational resources to achieve objectives. The employee arranges for and evaluates information from medical, psychological, psychiatric, physical or other evaluations to determine the potential for vocational rehabilitation. Services are provided in medical, psychiatric, vocational and financial areas to prepare the disabled applicant for employment. As to the job description, the employee assesses client needs for services through various means in order to determine eligibility. In addition, the employee develops a program with the disabled client including performing and documenting a thorough diagnostic workup including vocational assessment and specifying Louise Anne D. Schmidt December 10, 1993 Page 10 services needed to render the client employable. The employee assists the client in employment placement and provides post- employment services. As to the statutory definition, it is clear that the employee in this position provides services, regulates as to the disabled client and engages in activities where the official action has an economic impact of greater than a de minimis nature on the interest of the person. Thus, L:e Vocational Rehabilitation Counselor II meets the criteria of (4) and (5) of the definition of public employee under the Ethics Law. As to the Regulation, the employee in this position meets the criteria of (ii)(E), (F), (G), (H) and (I) as set forth above. We will now address seriatim the five points raised in the Financial Disclosure Appeal. As to the argument that your primary duties are counseling and placement, we are directed by the Commonwealth Court in Phillips, supra, to use an objective test looking at the totality of the duties in the classification/ specification and job description. As to the argument that caseworkers /social workers do not have to file, that argument was made and rejected by the Commonwealth Court in Phillips: The Petitioner's second argument is that the Commission violated its own regulations in holding him to be a public employee. He contends that under the regulation which lists certain positions as generally not considered to be public employees positions, his position must also be excluded because it affords him less discretion in his duties than certain of those listed. Specifically, he contends that police officers, detectives and welfare caseworkers are afforded and exercise more discretion than a CSA I and because the regulation generally considers the holders of such positions not to be public employees, a CSA I cannot be considered to be a public employee. * * * 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. Louise Anne D. Schmidt December 10, 1993 Page 11 Id. As to form (FIS) non filing Ethics Law the second assertion that you have never had to file the in over 25 years of state service, a prior pattern of provides no excuse to the filing when so required by the The third claim is that the filing is an invasion of your right to privacy as well as that of your spouse. The invasion of privacy issue has already been considered and rejected by the Pennsylvania Supreme Court. See, Snider v. Thornburgh, 496 Pa. 159 436 A.2d 593 (1981). Spousal reporting is not required but joint income and creditors are required to be listed. Such reporting is dictated by the law. See, 51 Pa. Code §S17.3, 17.4. In the fourth argument, it is asserted that the duties for the position of a vocational rehabilitation counselor in DPW are different than in other departments and that no expenditure authorizations or approvals are made. Cf. Rinehart /Pasda, Opinion 92 -006. While it is true that persons in this position in the Department of Labor and Industry, but not DPW, do authorize expenditures, the duties as set forth in the job description and classification /specification of your position are more than sufficient to meet the criteria of the Ethics Law and Regulation. The last argument as to the action taken by your personal office need not be addressed since we have reviewed this matter de novo. As to the arguments raised in your brief and at the public meeting, we reviewed and discussed in detail the arguments you presented. This Commission reviewed your current job description. Thus, your argument that an outdated job description was relied upon for the Advice of Counsel is moot since, as stated above, this matter is being decided de novo. While you explained, distinguished and qualified many of the job duties set forth in your current job description when we reviewed it with you, you did not specifically identify anything which you do not do, with the exception that you do not "guide" clients in the selection of appropriate vocational goals. You stated that you suggest particular types of services that you consider yourself a resource for your clients. The current job description contains a certification signed by you that the statements in the description are correct; thus, you made an admission when you signed that document, in June, 1993, that it was in fact an accurate description of your job. Further, you admitted that when diagnostic information has and Louise Anne D. Schmidt December 10, 1993 Page 12 been taken from a client, a decision is made by you whether to prepare an Individual Written Rehabilitation Program. You must evaluate the information in order to make this decision. This activity is clear evidence of independence and discretion on your part and goes to the heart of the determination that you are a public employee. It is noted that this Commission is dealing with a class of employees and may only 4.:t on the present job description. We must apply that description to the Ethics Law definition of public employee. This Commission cannot be guided by the fact that you may not work according to that job description. We cannot go beyond what is set forth in your job description. Aside from the legal reasons, we believe that coverage is necessary for the reason stated in Rinehart - Pasada: Id. at 17. 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. While this Commission is not unsympathetic to your situation, we are bound by what it is provided in terms of the job description. If the job description warrants change, it is not the prerogative of this Commission to do so. Appeal of Advice of Counsel 93 -581 is denied. 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. Louise Anne D. Schmidt December 10, 1993 Page 13 IV. CONCLUSION: A Vocational Rehabilitation Counselor 2 is to be considered a "public employee" under the Ethics Law required to file Statements of Financial Interests. 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 _cting 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, 7 :::.- James M. Ho Chair