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HomeMy WebLinkAbout02-578 HammakerHolly J. Hammaker 2C Suzanne Drive Duncannon, PA 17020 Re: Public Employee; FIS; Administrative Assistant 1; Department of Labor & Industry; Bureau of Benefits and Allowances; Claims Information Section. Dear Ms. Hammaker: ADVICE OF COUNSEL July 23, 2002 02 -578 This responds to your submission of a Financial Disclosure Appeal Statement dated June 17, 2002, received by the State Ethics Commission on June 19, 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 AI1Nances, 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. You have submitted a copy of what you describe as your last signed and dated job description (dated March 24, 2000), which is incorporated herein by reference. Copies of your job description signed and dated May 28, 1998, job classification specifications, and the organizational chart for the BUCBA Claims Information Section have also been obtained and are incorporated herein by reference. Per your job description and job classification specifications, your job duties include, inter alia, the following: investigating Unemployment Compensation claims /cases 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. Hammaker, 02 -578 July 23, 2002 Page 2 In your Financial Disclosure Appeal Statement, you state the following: I AM APPEALING MY PARTICIPATION IN COMPLETING THE GOVERNOR'S CODE OF CONDUCT STATEMENT OF FINANCIAL INTEREST. IN ACCORDANCE WITH MY PRESENT JOB DISCRIPTION [sic], I DO NOT FALL UNDER ANY OF THE CATEGORIES DEFINED IN SECTION 6(A)(B) OF MANAGEMENT DIRECTIVE 205.10. I AM NOT A PUBLIC OFFICIAL AND AM NOT A BOARD MEMBER ON ANY TYPE OF COMMITTEE. I DO NOT HAVE ANY POLITICAL AFFILIATIONS OTHER THAN BEING A REGISTERED VOTER IN PERRY COUNTY. I AM SALARIED BY THE COMMONWEALTH OF PENNSYVLANIA, HOWEVER, I AM NOT IN A CAPACITY TO DO ANY CONTRACTING, PROCUREMENT, ADMINISTER [sic] OR MONITOR [sic] GRANTS OR SUBSIDIES. I HAVE NOTHING TO DO WITH PLANING [sic], ZONING, INSPECTING, LICENSING, REGULATING OR AUDITING. I DO NOT HAVE ANY ECONIMIC [sic] IMPACT ON ANY INDIVIDUAL OR ORGANIZATION. I AM NOT IN A SUPERVISORY POSITION AND DO NOT MAKE ANY FINAL DECISIONS OR RECOMMENDATIONS. MY PERSONAL FINANCES SHOULD NOT HAVE ANY BEARING ON THIS FINANCIAL STATEMENT. I WORK SOLELY FOR THE COMMONWEALTH AND HAVE NO OTHER JOBS FULL OR PART - TIME. I DO NOT OWN A BUSINESS AND HAVE NO AFFILIATIONS WITH ANY ENTITY THAT MY [sic] HAVE DIRECT CONTACT WITH THE COMMONWEALTH. Financial Disclosure Appeal Statement. 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; Hammaker, 02 -578 July 23, 2002 Page 3 (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. 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. (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: Hammaker, 02 -578 July 23, 2002 Page 4 (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 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 MUfrmau 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 Hammaker, 02 -578 July 23, 2002 Page 5 take or recommend official action with respect to subparagraph (5) within the 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 /cases 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 § 13.2(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