HomeMy WebLinkAbout02-575 ConleyMarilyn Donley
Administrative Assistant I
BUCBA — Claims Information Section
Labor & Industry, Room 612
7 & Forster Streets
Harrisburg, PA 17120
ADVICE OF COUNSEL
July 18, 2002
02 -575
Re: Public Employee; FIS; Administrative Assistant 1; Department of Labor &
Industry; Bureau of Benefits and Allowances; Claims Information Section.
Dear Ms. Donley:
This responds to your submission of a Financial Disclosure Appeal Form dated
April 25, 2002, and letter dated June 14, 2002, both received by the State Ethics
Commission on June 14, 2002, which shall be treated as a request for an advisory from
the State Ethics Commission.
Issue: Whether as an Administrative Assistant 1 for the Bureau of Benefits and
AIlances, Claims Information Section, of the Department of Labor & 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 seek a determination from the State Ethics Commission as to
whether, in your capacity as an Administrative Assistant 1 for the Bureau of Benefits
and Allowances (BUCBA), Claims Information Section, of the Department of Labor and
Industry ("L&I"), you would be considered a "public employee" required to file
Statements of Financial Interests pursuant to the Ethics Act.
Copies of your job description, job classification specifications, and the
organizational chart for the BUCBA Claims Information Section have been obtained
and are incorporated herein by reference.
Per your job description and job classification specifications, your job duties
include, inter aha, the following: investigating Unemployment Compensation claims and
initiating corrective action to resolve problems involving overpayments, wage record,
check writing, etc.; investigating complaints by gathering and reviewing data from the
complainant and the field offices reviewing claims records, and following appropriate
procedures to resolve problems; expediting combined wage claim monetary cases
under the Interstate Benefit Payment Plan for field offices, and contacting other states
Donley 02 -575
July 18, 2002
Page 2
to obtain and gather data necessary to make a determination of cases; analyzing
administrative /staff operations and procedures; and developing and recommending
work standards and procedures.
In your Financial Disclosure Appeal Form, you state your belief that your job
description and job responsibilities are not covered under the provisions relating to a
"public employee," as that term is defined in the Ethics Act. You further state the
following:
My job description and duties are not covered under the summary of
Management Directive 205.10.
6. (a) (b) I do not have the authority to make final decisions; I am not
a purchasing agent, director, manager, supervisor, or in authority to
regulate, contract, exercise judgment, direct, approve, monitor, or audit
accounts, etc., for the Commonwealth of Pennsylvania.
I only receive a salary from the Commonwealth of Pennsylvania,
Department of Labor and Industry where I am employed as an
Administrative Assistant 1.
I am not a consultant, a chairperson, or a candidate for government or
public office.
These policies, procedures and directives do not apply in my personal
life.
I am not employed full or part -time for another employer or on any other
payrolls.
I am not in the position to accept contributions or monetary gifts.
Financial Disclosure Appeal Form dated April 25, 2002.
Finally, it is noted that the submissions to the State Ethics Commission in this
matter include a memorandum dated June 5, 2002, from the Director of L &I's Bureau of
Human Resources to you, indicating the agency's determination that you are a public
employee subject to the Ethics Act based upon the authority of the Administrative
Assistant I classification to investigate and to initiate corrective action with regard to
Unemployment Compensation claims.
Discussion: The Ethics Act defines the term "public employee" as follows:
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;
Donley 02 -575
July 18, 2002
Page 3
65 Pa.C.S.
The
employee"
(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.
§ 1102.
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.
(0) 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.
Donley 02 -575
July 18, 2002
Page 4
(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 super-
intendents, 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 the duties and responsibilities of your position, the necessary
conclusion is that you are a "public employee" subject to the financial reporting and
disclosure requirements of the Ethics Act.
It is clear that in your capacity as an Administrative Assistant 1 in the BUCBA,
Claims Information Section, of the Department of Labor & Industry, you have the ability
to take or recommend official action with respect to subparagraph (5) within the
Donley 02 -575
July 18, 2002
Page 5
definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. §1102.
Specifically, your job duties include, inter alia: investigating Unemployment
Compensation claims and initiating corrective action to resolve problems involving
overpayments, wage record, check writing, etc.; investigating complaints by gathering
and reviewing data from the complainant and the field offices reviewing claims records,
and following appropriate procedures to resolve problems; expediting combined wage
claim monetary cases under the Interstate Benefit Payment Plan for field offices, and
contacting other states to obtain and gather data necessary to make a determination of
cases; analyzing administrative /staff operations and procedures; and developing and
recommending work standards and procedures.
The foregoing 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).
Based upon the above, you are advised that 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 Administrative Assistant 1 in the Bureau of
benefits and Allowances (BUCBA), Claims Information Section, of the Department of
Labor and Industry ( "L &I "), 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 § 13.2th). 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