HomeMy WebLinkAbout02-591 DahlColeen E. Dahl, P.T.
Commonwealth of Pennsylvania
Department of Public Welfare
Polk Center
P.O. Box 94
Polk, PA 16342 -0094
Dear Ms. Dahl:
ADVICE OF COUNSEL
August 20, 2002
02 -591
Re: Public Employee; FIS; Licensed Physical Therapist; Department of Public
Welfare; Office of Mental Retardation; Physical Therapy Department.
This responds to your letter dated July 8, 2002, which will be treated as a request
for advice from the State Ethics Commission.
Issue: Whether as a Licensed Physical Therapist for the Office of Mental
F�i:ardation, Physical Therapy Department, of the Pennsylvania Department of Public
Welfare, 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 as to whether, in your capacity as a Licensed
H ysical Therapist for the Office of Mental Retardation, Physical Therapy Department,
of the Pennsylvania Department of Public Welfare ( "DPW "), 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 your job description, which is incorporated herein
by reference. Per your job description, you job duties include, inter alia, the following:
evaluating individuals in order to determine the cause or nature the condition,
situation, or problem, the prognosis, and appropriate interventions; evaluating
individuals in order to provide recommendations and /or appropriate direct or indirect
services as deemed necessary; preparing progress reports, written recommendations,
and /or other written materials as specified by facility and departmental
policy /procedures in order to provide administration and the Chief Physical Therapist
with pertinent information regarding the status of specific individuals and department
operations; exercising supervision over Physical Therapy Aides and lower level
Dahl 02 -591
August 20, 2002
Page 2
therapists; and providing technical assistance to subordinate departmental staff as
required by the Physical Therapy Practice Act.
In your letter of July 8, 2002, you state the following reasons for your appeal:
I understand that I am classified as management, however, I do not
carry the responsibilities as our Chief P.T. does, therefore, I do not meet
the definition of a "Public Employee." My responsibilities are to evaluate
individuals for Physical Therapy and develop individualized treatment
plans and appropriateness of adaptive equipment. These responsibilities
that I have are the same as an occupational therapist, who is not
considered a "Public Employee."
I am not the Chief P.T., therefore, I do not make any decisions
regarding budgets, staffing, grants or actual purchases or contracts. I also
do not finalize or approve purchase orders; I only make recommendations
to the Chief P.T.
Dahl Financial Disclosure Appeal letter of July 8, 2002, at 1.
Finally, you state that you have privacy concerns as to the disclosure of
personal and /or financial information.
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.
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 ":
Dahl 02 -591
August 20, 2002
Page 3
(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,
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.
Dahl 02 -591
August 20, 2002
Page 4
(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 financial reporting and disclosure
requirements of the Ethics Act.
It is clear that in your capacity as a Licensed Physical Therapist for the Office of
Mental Retardation, Physical Therapy Department, of DPW, you have the ability to 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, evaluating individuals in order to determine the cause or nature
of the condition, situation, or problem, the prognosis, and appropriate interventions;
evaluating individuals in order to provide recommendations and /or appropriate direct or
indirect services as deemed necessary; preparing progress reports, written
recommendations, and /or other written materials as specified by facility and
departmental policy /procedures in order to provide administration and the Chief
Physical Therapist with pertinent information regarding the status of specific individuals
and department operations; exercising supervision over Physical Therapy Aides and
lower level therapists; and providing technical assistance to subordinate departmental
staff as required by the Physical Therapy Practice Act.
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).
Dahl 02 -591
August 20, 2002
Page 5
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. Cf., Rinehart - Pasda, Opinion 92 -006.
As for your concerns regarding privacy, you are advised that you need not
disclose a residence address on the Statement of Financial Interests, but rather, may
use an office /work address. Bodo, Opinion 96 -007. Additionally, the Ethics Act does
not require disclosure on the Statement of Financial Interests of social security
numbers, account numbers, and the like. See, 65 Pa.C.S. § 1105.
Conclusion: In your capacity as a Licensed Physical Therapist for the Office of
Mental Retardation, Physical Therapy Department, of the Department of Public Welfare,
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