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HomeMy WebLinkAbout01-548 VenturoLinda R. Venturo BETO Room 824 Labor & Industry Building Harrisburg, PA 17121 Re: Public Employee; FIS; Unemployment Compensation Tax Technician; Department of Labor and Industry. Dear Ms. Venturo: ADVICE OF COUNSEL May 8, 2001 01 -548 This responds to your letter dated April 4, 2001, by which you requested advice from the State Ethics Commission. Issue: Whether as an Unemployment Compensation Tax Technician with the ommonwealth of Pennsylvania Department of Labor and Industry, you would be considered a "public employee" subject to the Public Official and Employee Ethics Act (the "Ethics Act "), 65 Pa.C.S. §1101 et seq., and the Regulations of the State Ethics Commission, and particularly, the requirements for filing Statements of Financial Interests. Facts: You are an Unemployment Compensation Tax Technician in the Department of Labor and Industry. You have submitted a copy of your job description, which is incorporated herein by reference. You state that your position is not a managerial or supervisory position, and that you perform all of your job functions at the direction of the Bureau of Employer Tax Operations and /or in accordance with the Pennsylvania Unemployment Compensation Law. You further state that while you do assign unemployment compensation contribution rates to employers, which rates have an economic impact of greater than a de minimis nature on the interest of the employers, you may not, at your own discretion, assign any rate you please. Rather, you assign the rates in accordance with a formula established by the Pennsylvania Unemployment Compensation Law. Your numerous job duties include, but are not limited to, the following: 1 Collecting money delinquencies by various means; 2. Preparing liens and forwarding same to the Legal Division for entry in the county courts; Venturo, 01 -548 May 8, 2001 Page 2 3. Authorizing the Legal Division to withhold or discontinue legal action when payments or acceptable arrangements for payments are made by an employer; 4. Verifying and allocating certain payments made and notifying Field Accounting Service and Legal Division when necessary; 5. Requesting field investigations of unauthorized deductions of credit used by employers; 6. Reviewing employers' initial statements to determine completeness and validity; 7 Auditing employers' reserve accounts, determining the year(s) for which rate computations are required, and making appropriate rate computations; 8. Issuing contribution rate directives; 9. Determining whether certain clearance certificates may be issued when requested, and issuing said documents upon verification that accounts meet the prerequisites; and 10. Preparing financial statements for use in processing Applications for Agreements to Compromise. You have received a Statement of Financial Interests ( "FIS ") from your employer for completion and filing. You state that you will, in good faith, complete and file the FIS. However, in order to avoid having to file an FIS each year, you seek a determination as to whether, in your capacity as an Unemployment Compensation Tax Technician with the Department of Labor and Industry, you are a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. You specifically question whether you are required to file Statements of Financial Interests. Discussion: The Ethics Act defines the term "public employee" as follows: §1102. 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: contracting or procurement; 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 minimis nature on the interests of any person. The term shall not include individuals who are employed by this Commonwealth or any political subdivision thereof in teaching as distinguished from administrative duties. (5) 65 Pa.C.S. §1102 (Emphasis added). Venturo, 01 -548 May 8, 2001 Page 3 The Regulations of the State Ethics Commission similarly define the term "public employee" and set forth the following additional criteria: (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of "public employe ": (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 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. (1) 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, Venturo, 01 -548 May 8, 2001 Page 4 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 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. Status as a "public employee" subject to the Ethics Act is determined by applying the above definition and criteria to the position held. The focus is necessarily upon the position itself, and not upon the individual incumbent in the position, the variable functions of the position, or the manner in which a particular individual occupying the position may carry out those functions. See, Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Commw. Ct. 1984); and Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982). Furthermore, the Commonwealth Court of Pennsylvania has directed that coverage under the Ethics Act be construed broadly and that exclusions under the Ethics Act be construed narrowly. See, Phillips, supra. Based upon the above judicial directives, the provisions of the Ethics Act, the State Ethics Commission Regulations, and the opinions of the State Ethics Commission, in light of your duties and responsibilities, the necessary conclusion is that you are a "public employee" subject to the Ethics Act, and specifically, the financial reporting and disclosure requirements of the Ethics Act. It is clear that in your capacity as an Unemployment Compensation Tax Technician, you have the ability to take or recommend official action with respect to subparagraphs (4) and (5) within the definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. §1102. First, you audit the reserve accounts of employers; that duty in and of itself is sufficient to establish your status as a public employee subject to the Ethics Act generally and the FIS filing requirements specifically. Additionally, you review employers' initial statements to determine completeness and validity; assign unemployment compensation contribution rates to employers, which rates you acknowledge have an economic impact of greater than a de minimis nature on the interest of such employers; determine whether certain clearance certificates may be issued when requested; and issue such clearance certificates upon verification that accounts meet the prerequisites. Venturo, 01 -548 May 8, 2001 Page 5 These activities would also meet the criteria for determining your status as a public employee under the Regulations of the State Ethics Commission, specifically at 51 Pa. Code §11.1, "public employee," subparagraph (ii). Therefore, you are a "public employee" subject to the Ethics Act and you are required to file Statements of Financial Interests pursuant to the Ethics Act. Conclusion: In your capacity as an Unemployment Compensation Tax Technician with the Commonwealth of Pennsylvania Department of Labor and Industry, you are a "public employee" subject to the Public Official and Employee Ethics Act and the Regulations of the State Ethics Commission. Accordingly, you must file a Statement of Financial Interests each year in which you hold the aforesaid position and the year following your termination of such service. If you have not already done so, a Statement of Financial Interests must be filed within 30 days of this Advice. Pursuant to Section 1107(11), an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, provided the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code §13.2(h ). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 -787- 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Vincent J. Dopko Chief Counsel