HomeMy WebLinkAbout95-008 HowellI. ISSUE:
•
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
OPINION OF THE COMMISSION
Dear Mr. Howell:
Before: Daneen E. Reese, Chair
Austin M. Lee, Vice Chair
Roy W. Wilt
Allan M. Kluger
Rev. Joseph G. Quinn
Boyd E. Wolff
DATE DECIDED: 10/27/95
DATE MAILED: 11/8/95
95 -008
Steven Howell, Esquire
Attorney at Law
2929 Gettysburg Road
Camp Hill, PA 17011
Re: Attorney III; Department of Labor and Industry; Workers'
Compensation Bureau; Public Employee; Appeal of Advice.
This Opinion is issued pursuant to the appeal of Advice of
Counsel, No. 95 -583 issued July 17, 1995.
Whether a former Attorney III in the Workers' Compensation
Bureau, Department of Labor and Industry is to be considered a
"public employee" required to file Statements of Financial
Interests under the Public Official and Employee Ethics Law.
II. FACTUAL BASIS FOR DETERMINATION:
By Notice of Appeal received by FAX transmission on August 11,
1995, you appealed Advice of Counsel, 95 -583 issued on July 17,
1995.
Advice of Counsel, 95 -583 concluded that Anniken U. Davenport
(Davenport) as a former Attorney III for the Department of Labor
and Industry (L &I), was to be considered a "public employee"
subject to the filing requirements of the Statements of Financial
Howell, Esquire, Steven, 95 -008
Page 2
Interests ( FIS's).
After reviewing the job description for Davenport together
with the classification specification of an Attorney III in the
context of the Ethics Law, the Commission Regulations and the case
of Maunus v. Commonwealth State Ethics Commission, 518 Pa. 592, 544
A.2d 1324 (1988), it was determined in the Advice of Counsel that
Davenport was a public employee while employed by L &I required to
file FIS's for each year in which she held that position and in the
year following termination of service.
In the Notice of Appeal from Advice of Counsel, you provided
the following information and arguments. Davenport was employed in
the Workers' Compensation Bureau (WCB) as an Attorney III from
January 1, 1994 to July 7, 1994 when she was discharged after nine
years of service with the Commonwealth. Following her discharge,
Davenport has filed two actions against various individual
defendants, the Office of General Counsel (OGC) and L &I,
Commonwealth of Pennsylvania: Davenport v. Commonwealth, No. 1850
of 1994 — Board of Claims, currently pending in Commonwealth
Court at 988 C.D. 1995 and Davenport v. Commonwealth, No. E —
71018 — D of 1994 — Pennsylvania Human Relations Commission,
investigation pending. Given the pendency of the above litigation,
Davenport objects to providing OGC and L &I with any information
other than that which is required by discovery under the
Pennsylvania Rules of Civil Procedure (Pa R.C.P.).
Davenport states that she has not represented a person for
promised or actual consideration before the governmental body with
which she was associated from January 1, 1994 to the present. You
assert that OGC and L &I "seek this information outside the ordinary
course of business" based upon the receipt of Davenport's FIS
Appeal Form at L &I on June 5, 1995 which was "rushed" by the L &I
Acting Chief Counsel to OGC which sent the Appeal Form by FAX to
the Commission on June 6, 1995.
After stating that both L &I and OGC seek information as to
Davenport in preparation of the litigation, you assert that
Davenport has a privilege against being compelled to provide
personal information especially since the FIS form is filed at the
agency personnel office which would provide the defendants with
"unfettered access."
You conclude by seeking a reversal of the Advice of Counsel
and a stay as to any requirement for Davenport to file FIS's during
the pendency of the litigation arguing that the Pa. R.C.P. are the
exclusive means by which a defendant is authorized to obtain
information from a plaintiff during pending litigation.
You have requested a full Commission review of this case on
the issue of whether Davenport should be considered a "public
employee" subject to the filing requirements of FIS's under the
Howell, Esquire, Steven, 95 -008
Page 3
Ethics Law.
Since you do not take issue with the statement of the job
description for Davenport and the classification /specification for
an Attorney III, we shall quote that summarization from the Advice
of Counsel:
The classification /specification describes the Attorney
III position as advanced non - supervisory professional
legal work performing highly responsible legal duties
with personal responsibility for difficult, novel and
important legal matters such as conducting high
impact /complex litigation, possibly involving large sums
of money with broad Commonwealth implications. The
generic job description lists the following duties:
representing the Bureau in litigation as to the
Supersedeas (Injury) Fund or under the Occupational
Disease Act; investigating/ prosecuting employers as to
violations of Section 305 of the Workers' Compensation
Act; representing the Bureau in administrative
proceedings relative to violations of the Workers'
Compensation Act; representing the Bureau in bankruptcy
proceedings filed by employers where workers'
compensation benefits may be secured by bonds;
representing the Bureau in special litigation; serving as
a legal advisory to the Bureau regarding government
operations and interaction as to other agencies; and
advising as to administrative adjudicative functions of
the Bureau.
Advice of Counsel, 95 -583 at 1, 2.
III. DISCUSSION:
We must determine whether Davenport, as an Attorney III for
WCB in L &I was a public employee as defined under the Ethics Law so
as to be subject to the FIS filing requirements. We shall also
address the issue of privilege which you have raised for the first
time in the Appeal of Advice.
The Ethics Law defines the term "public employee" 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;
Howell, Esquire, Steven, 95 -008
Page 4
65 P.S. §402.
(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
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.
The Regulations of this Commission further define the term
"public employee ":
(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
Howell, Esquire, Steven, 95 -008
Page 5
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 recommendations.
(G) The individual makes final technical recommen-
dations.
(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.
Howell, Esquire, Steven, 95 -008
Page 6
(F) School superintendents, assistant
superintendents, school business managers and 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. (Emphasis added)
Our review of this matter must focus upon Davenport's duties
and responsibilities as set forth in her job description and
classification specification rather than upon any assertions as to
the duties actually performed. The test utilized by this
Commission in determining whether a given individual is a public
official /public employee is an objective test whereby the
controlling element is the grant of powers, duties, and
responsibilities rather than the powers, duties, or
responsibilities actually exercised. See, Phillips v. State
Ethics Commission, 79 Pa. Cmmw. Ct. 491, 470 A.2d 659 (1984), which
specifically upheld the utilization of this objective test.
Also, in reviewing this question, the Commonwealth Court in
its ruling in Phillips, supra, at page 661, directs us to construe
coverage of the Ethics Act broadly, rather than narrowly, and
conversely, directs that exclusions from the Ethics Law should be
narrowly construed. Based upon this directive and reviewing the
definition of "public official" in the statute and the regulations
and opinions of this Commission relative to Davenport's duties and
responsibilities, we must conclude that she is a "public employee"
subject to the Ethics Law and in particular the filing
requirements.
As to the statutory definition of public employee, it is clear
that the duties of Davenport at a minimum include activities where
the official action has an economic impact of greater than a de
minimis nature on the interests of any person. As to the
Commission Regulations, subsections (ii) and (iv)(c) have
application, the latter of which specifically provides that staff
attorneys are considered public employees. We also note that the
Howell, Esquire, Steven, 95 -008
Page 7
Ethics Law even requires full or part -time solicitors to file
FIS's. 65 P.S. §404(a).
The Pennsylvania Supreme Court in Maunus, supra has ruled that
Commonwealth employed attorneys are required to file FIS's:
Employers in the private sector may properly adopt
professional and ethical standards and in pursuit
thereof, may require certain conduct of its employees,
including attorneys, without running afoul of this
Court's supervisory authority over the bar of this
Commonwealth.
* * *
We perceive no basis upon which to conclude that
appellees, as employees of a state agency, are entitled
to an exemption from the disclosure requirements simply
because they are attorneys.
* * *
Our conclusion is buttressed by the fact that the
financial disclosure requirement imposed by the Ethics
Act is not incompatible with any of the rules applicable
to attorneys in this Commonwealth. To the contrary, it
is expected that members of our bar will adhere to the
highest standards regardless of the field of endeavor in
which they are engaged. In addition, we are mindful of
the salutary end to which the Ethics Act is addressed,
namely the assurance of the integrity and honesty of
employees of this Commonwealth, and further recognize
that as remedial legislation, the Act is to be liberally
construed.
Id. at 1326 -1328.
Considering the above statutory and decisional law, Davenport
was a public employee and is required to file FIS's for each year
that she served as a Commonwealth attorney and in the year after
termination of service.
We shall now consider the issue of privilege which you have
raised in very general terms. Since you have requested a stay of
filing FIS's, it is appropriate to address this issue.
There is no basis in law for this Commission to grant a stay
as to the FIS filing requirement. Section 4(a) of the Ethics Law
provides:
Section 4. Statement of financial interests
required to be filed
Howell, Esquire, Steven, 95 -008
Page 8
(a) Each public official of the
Commonwealth shall file a statement of
financial interests for the preceding calendar
year with the commission no later than May 1
of each year that he holds such a position and
of the year after he leaves such a position.
Each public employee and public official of
the Commonwealth shall file a statement of
financial interests for the preceding calendar
year with the department, agency, body or
bureau in which he is employed or to which he
is appointed or elected no later than May 1 of
each year that he holds such a position and of
the year after he leaves such a position. Any
other public employee or public official shall
file a statement of financial interests with
the governing authority of the political
subdivision by which he is employed or within
which he is appointed or elected no later than
May 1 of each year that he holds such a
position and of the year after he leaves such
a position. Persons who are full -time or
part -time solicitors for political
subdivisions are required to file under this
section.
65 P.S. §404(a).
The General Assembly has not provided this Commission with any
discretion as to staying such filing requirements. Accordingly,
since Davenport was a public employee, the FIS must be filed within
30 days of the date of issuance of this Opinion.
A subsidiary issue arises as to an FIS filing when the public
official /employee has certain financial interests that are subject
to a privilege against disclosure.
We are aware that the issue of privilege as to financial
disclosure was considered by the Pennsylvania Supreme Court in In
the Matter of Glancey and Chiovero, 515 Pa. 201, 527 A.2d 997
(1987). That case dealt with the very narrow issue of whether a
judge could file his judicial financial form without disclosing
information as to gifts by invoking constitutional privilege. The
Court, while recognizing the privilege against self- incrimination,
held that the judges had to either make complete disclosure or be
removed from judicial office. However, since the case was decided
based upon an interpretation as to financial disclosure
requirements for the judiciary and the Canons of Judicial Conduct,
that decision is not controlling on the issue before us.
As to any privilege concerning disclosure on an FIS filing,
both the Ethics Law and the Regulations recognize that privileged
Howell, Esquire, Steven, 95 -008
Page 9
information need not be reported. 65 P.S. §405(b). Thus, Section
5(b)(5) of the Ethics Law, Act 9 of 1989 provides:
IV. CONCLUSION:
,Section 5. Statement of financial interests
(b) The statement shall include the
following information for the prior calendar
year with regard to the person required to
file the statement.
* * *
(5) The name and address of
any direct or indirect source of
income totalling in the aggregate
$1,000 or more. However, this
provision shall not be construed to
require the divulgence of
confidential information protected
by statute or existing professional
codes of ethics or common law
privileges.
Id. See also 51 Pa. Code 17.4(a). We are also aware that there is
a constitutional privilege against self incrimination.
In applying the above law to the instant matter, if Davenport
does have a valid privilege, she need not disclose the privileged
information in the FIS filings. For example, if there is income
received totalling in the aggregate of $1,000.00 or more as to
which a privilege applies, Davenport must list that she has a
source income, without listing the source, provided a statement is
made on the FIS of the specific privilege claimed as to that
income.
To summarize, Davenport was a public employee who must file
FIS's within 30 days of the issuance of the Opinion as to each year
of service and in the year after termination of service. The FIS's
must list all financial interests except those which are subject to
a valid privilege. Lastly, as to any financial interests that are
not specifically listed, a statement must appear as to the specific
privilege claimed for each non - disclosed financial interest.
Advice of Counsel 95 -583 is modified as noted above.
An Attorney III for the Department of Labor and Industry is a
"public employee" required to file the Statement of Financial
Howell, Esquire, Steven, 95 -008
Page 10
Interests for each year of service and in the
termination of service. The filing deadlines for ae Statementlof
Financial Interests cannot be stayed. A person required to file a
Statement of Financial Interests
interests, subject to a valid privilege not disclose financial
made on the FIS specifying the specific � provided a statement is
disclosed financial interest. P privilege as to each non -
The Advice of Counsel is modified.
on th P s rsua n t o to issued Section 7(i0), the
ll person who acts in
civil penalties for so actin a subject to criminallor
stated in the request. acting Provided the material facts are as
This letter is a public record and will be made available as
such.
Finally, any person may request quest the Commission to reconsider
its Opinion. The reconsideration re
Commission within fifteen days of the u mailing s date of this at tons pinion.
The person requesting reconsideration should a detailed
Opinion. explanation setting forth the reasons why the resent Opinion requires
reconsideration.
By the Commission,
ClAtipaJ
Daneen E. Reese
Chair