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HomeMy WebLinkAbout02-559 DavisADVICE OF COUNSEL May 21, 2002 Janice D. Davis Secretary of Financial Oversight and Finance Director City of Philadelphia Office of the Director of Finance 1401 John F. Kennedy Blvd. Room 1330, Municipal Services Bldg. Philadelphia, PA 19102 -1693 Re: Public Employee; FIS; Procurement and Revenue Departments; City of Philadelphia. Dear Ms. Davis: 02 -559 This responds to your letter dated April 17, 2002, by which you requested advice from the State Ethics Commission. Issue: Whether employees of the Procurement and Revenue Departments of the Gi yy of Philadelphia would be considered "public employees" 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 requiremen s for filing Statements of Financial Interests. Facts: As a member of the Mayor's Cabinet in the position of Secretary of iF nancial Oversight and Finance Director of the City of Philadelphia ( "City "), you seek an advisory as to whether individuals holding the positions below ( "City Employees ") are "public employees" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. §1102; 51 Pa. Code 11.1. You specifically question whether the City Employees are required to file Statements of Financial Interests ( "FIS's "). Procurement Department: Procurement Technician! and II Procurement Technician Supervisors Department of Revenue: Tax and Revenue Conferee Supervisor Tax and Revenue Conferee Collection Customer Representative Supervisor Revenue Examiner I, II and III Revenue Examiner Trainee Tax Assessor Revenue Investigation Supervisor Revenue Investigator Davis, 02 -559 May21, 2002 Page 2 You have submitted a copy of the job description for each of the above positions along with a copy of the organization chart for the City of Philadelphia, Procurement Department and Department of Revenue, which documents are incorporated herein by reference. You state that the Procurement Department, as the central purchasing and materials management agency for the City, is responsible for the purchasing of all goods and services, including construction projects and concessions, which by law, must be obtained through an open, fair and competitive process. The Procurement Technician series are job titles that are only in the City's Procurement Department. You further state that the Department of Revenue collects all revenue due to the City and tax revenue due to the School District of Philadelphia, playing a key role in analyzing and forecasting revenue. For the past few years, some of the City Employees have failed to complete FIS's. On the advice of their union, AFSCME, District Council #47, Local 2187, those City Employees have submitted blank FIS forms along with a copy of a letter from the law firm representing the union to the City's Law Department. You state that the letter from the law firm was triggered by an inquiry from the union as to whether certain employees are within the purview of the State Ethics Act. You further state that the union objected to informing the City Employees of the requirement to file disclosure forms. In response, the City's Law Department stated that it is the employee's responsibility to obtain an exemption from the State Ethics Commission. You have submitted a copy of the letter from the union's law firm and a copy of the letter from the City's Law Department, which letters are incorporated herein by reference. Neither the City Employees nor the union has taken any steps to request an opinion from the State Ethics Commission. Therefore, on behalf of the City of Philadelphia, you request an advice or opinion as to the obligations of the City Employees under the Ethics Act. You state that the City also requests an opinion on what the City's enforcement responsibilities are and whether the City has a clear duty in law to enforce the filing requirement. 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: 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 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. 65 Pa.C.S. §1102. Davis, 02 -559 May21, 2002 Page 3 The employee" Regulations of the State Ethics Commission similarly define the term "public 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. (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, Davis, 02 -559 May21, 2002 Page 4 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 [ V . 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 the duties and responsibilities of the City Employees, the necessary conclusion is that they are a "public employee" subject to the financial reporting and disclosure requirements of the Ethics Act. It is clear that in the City Employees' capacities as employees of the Procurement and Revenue Departments for the City of Philadelphia, they have the ability to take or recommend official action with respect to subparagraphs (1), (4), and 5 within the definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. §1102. The job responsibilities of a Procurement Technician I fall within subparagraph (1), relating to contracting or procurement, in that said job responsibilities include purchasing general commodities or awarding public works contracts in the City's Central Agency; and interacting with contractors, the public and other officials to resolve procurement related issues. Similarly, the job responsibilities of a Procurement Technician II also fall within subparagraph (1). Those job duties include purchasing general commodities or awarding public works construction contracts; and interacting with contractors, the Davis, 02 -559 May21, 2002 Page 5 public and other officials to resolve procurement related issues. In addition, a Procurement Technician II is responsible for developing purchasing specifications and standards, which fall within the ambit of subparagraph (5) relating to any activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person. A Procurement Technical Supervisor is responsible for supervising either a group of technicians developing purchasing specifications and standards and purchasing general commodities or awarding public works construction contracts; supervising a procurement operation in the City's Central purchasing agency; and interacting with governmental officials, contractors and the public to resolve procurement related issues, all of which job duties fall within subparagraph (1) relating to contracting or procurement. The job duties of a Revenue Examiner I entail auditing work of limited scope and difficulty in the examination of accounting and other business records for the purpose of determining tax liabilities. In this position, the employee has a controlling responsibility for assigned audits. These job responsibilities fall within subparagraph (4) relating to taking or recommending official action of a nonministerial nature with regard to auditing any person. The job duties of a Revenue Examiner II also satisfy subparagraph (4) given that an employee in this class is responsible for auditing work at the full performance level examining accounting and other business records to determine tax liabilities of individuals and business firms. An employee in this class has controlling responsibility for assigned audits. The job duties of a Revenue Examiner III include auditing work supervising a group of revenue examiners in the examination of accounting and other business records for the purpose of determining tax liabilities. Employees in this class participate in supervising the City's tax auditing program. The responsibilities of a person in this class fall within subparagraph (4) relating to auditing any person. A Revenue Examiner Trainee's job duties fall within subparagraph (4) in that they involve auditing work of a training nature developing "knowledges," skills and abilities in the examination of accounting and other business records for the purpose of determining tax liabilities. A person in this position is responsible for the performance of assigned audits or segments of such audits. A Tax and Revenue Conferee's responsibilities include administrative and adjudicative work resolving disputed tax and revenue collection cases, providing advisory services to City officials relative to the formulation of new or modification of tax laws and ordinances, evaluating tax and revenue cases appealed by the public concerning assessments levied by the City, applying the appropriate tax ordinances and regulations in rendering decisions, and conferring with taxpayers and their representatives to resolve disputed cases and to effect compromise settlements, so as to fall within the ambit of subparagraph (5). A Tax and Revenue Conferee Supervisor's job duties fall within subparagraph (5) in that they include supervisory and administrative and adjudicative work directing a staff engaged in a tax information dissemination program and reviewing subordinates' proposed resolution settlements of disputed tax cases. A person in this class is also responsible for the technical post review of audit assessments. The job duties of a Collection Customer Representative Supervisor include supervising collection customer representatives engaged in the collection of bills, delinquencies, interest and penalties for a major type of City revenue, and supervising Davis, 02 -559 May21, 2002 Page 6 the establishment of payment agreements to effect the collection of delinquent revenue, which fall within the ambit of subparagraph (5). A Tax Assessor's job responsibilities fall within subparagraph (5) in that they entail tax assessment work determining liability for business and earnings taxes payable to municipal government and /or the school district, reviewing financial documents to assess tax liabilities, and contacting taxpayers and /or their representatives to discuss findings and resolve questions relating to the determination of tax liabilities. A Revenue Investigations Supervisor's job responsibilities satisfy subparagraph (5) in that they involve supervisory revenue field investigation work directing the investigation of various tax and /or water /sewer delinquencies, supervising subordinate field investigators engaged in gathering facts in order to effect the collection of revenues owed the City and /or School Board, assigning and reviewing the investigation of non -tax filers and delinquent taxpayers or water /sewer delinquent customer accounts, and providing technical assistance to subordinates relating to the investigation of cases which serve as a basis for further actions of others. Finally, a Revenue Investigator's work involves field work investigating tax and /or water /sewer delinquents, gathering facts in order to effect the collection of revenues owed the City and /or School Board, arranging for payment of delinquent taxes and water /sewer rents, all of which duties satisfy subparagraph (5). The foregoing activities delineated above would also meet the criteria for determining the City Employees' status as public employees under the Regulations of the State Ethics Commission, specifically at 51 Pa. Code §11.1, "public employee," subparagraph (ii). In that a determination of whether the duties and responsibilities of a position is based upon an objective test, that is, a consideration of an individual's job as set forth in his class specification and job description, rather than any duties that the individual may be presently performing, the necessary conclusion is that the City Employees are "public employees" subject to the Ethics Act and the City Employees are required to file Statements of Financial Interests pursuant to the Ethics Act. Finally, as to the question concerning the City's enforcement responsibilities regarding FIS filing requirements, the State Ethics Commission under the Ethics Act may generally only give advice to public officials /public employees, but not to municipalities. Although the Ethics Act imposes enforcement duties upon the Commission through the civil penalty citation process or by investigation (See, 51 Pa. Code § 19.3), there is no provision in the Ethics Act that imposes a rcement responsibilities upon other governmental bodies. You will have to consult with your law department as to what conditions or requirements the City may impose in its own right upon its employees regarding FIS filing requirements. Conclusion: As employees of the Procurement and Revenue Departments of the City of Philadelphia, the Procurement Technician I, Procurement Technician II, Procurement Technician Supervisor, Tax and Revenue Conferee Supervisor, Tax and Revenue Conferee, Collection Customer Representative Supervisor, Revenue Examiner I, Revenue Examiner II, Revenue Examiner III, Revenue Examiner Trainee, Tax Assessor, Revenue Investigation Supervisor, and Revenue Investigator, are public employees" subject to the Public Official and Employee Ethics Act and the Regulations of the State Ethics Commission. Accordingly, such individuals must file Statements of Financial Interests each year in which they hold the aforesaid positions and the year following their termination of such service. If they have not already done so, Statements of Financial Interests must be filed within 30 days of this Advice. Davis, 02 -559 May21, 2002 Page 7 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 ). TThe 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