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HomeMy WebLinkAbout92-588Dear Mr. Sharrock: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 20, 1992 Mr. Jack E. Sharrock 92-588 444 North Third Street Fifth Floor Philadelphia, PA 19123 Re: Vocational Rehabilitation Supervisor; Department of Labor and Industry; Office of Vocational Rehabilitation; Public Employee; FIS This responds to your Financial Interest disclosure appeal form dated April 21, 1992, which will be treated as a request for advice from the State Ethics Commission. Issue: You ask whether in your capacity as a Vocational Rehabilitation Supervisor with the Commonwealth of Pennsylvania, Department of Labor and Industry, Office of Vocational Rehabilitation, hereinafter "OVR," you are to be considered a "public employee" as that term is defined in the Public Official and Employee Ethics Law. Facts: You question whether your activities and functions fall within the purview of the definition of "public employee" as that phrase is defined in the Ethics Law and the regulations of this Commission. In order to review the question presented, we will briefly outline the duties and responsibilities associated with your position as contained in your job description and the classification specifications for this position. Your duties and responsibilities, as set forth in these two documents are incorporated herein by reference. An employee in this position performs professional work of a supervisory and administrative nature in the field of rehabilitation of the handicapped. A Vocational Rehabilitation Supervisor confers and works with physicians, hospital personnel, and other governmental and private agencies in determining feasibility for rehabilitation and in making referrals or supervising the carrying out of rehabilitation plans. A Vocational Rehabilitation Supervisor supervises a group of counselors who are engaged in providing, rehabilitative services to the handicapped. Such supervisory wc*Ic A.ncludes developA.ng the Mr. Jack E. Sharrock May 20, 1992 Page 2 efficiency and skill of subordinates; planning, supervising, and participating in unit training activities; planning and supervising the administrative aspects of the program such as assigning cases, scheduling, and directing the flow of work; and reviewing and analyzing case records to determine that the work is satisfactory and recording is adequate. You meet on.a frequent basis with the unit counselors to assess and advise about the development of individual cases, and you staff and screen cases with counselors, medical personnel, and occasionally-administrators for the purpose of accepting cases, moving them, or approving them for services. You conduct a formal yearly evaluation of all unit members' work. The position responsibilities include initiating corrective disciplinary action for minor misconduct :. by employees and making recommendations for major corrective disciplinary actions or dismissals. This position additionally involves receiving grievances or complaints, conducting initial investigations into causes and conditions, discussing such problems with the employee, and resolving or recommending resolutions to such grievances or complaints. According to your job description, you are the district wide coordinator of the Social Security .Administration (SSA) program. You attend meetings regarding the SSA program and you meet with the state wide coordinator. You function as a resource person in regard to the SSA program for the district. Additionally, you authorize the expenditure of funds by signing authorizations, and you review and approve counselor expense accounts. It is noted that the above are only some of the duties ' and responsibilities of your position. Discussion: The question to be answered is whether you, in your capacity as a Vocational Rehabilitation Supervisor for OVR, are to be considered a "public employee." The. Ethics Law defines that term as follows: Section 2. Definitions "Public employee." Any the Commonwealth or a who is responsible for official action of a with regard to: individua] .employed by political subdivision taking or recommending nonmin#steial nature contracting or`precurement; administering Qr mpnitoring grants or subsidies; i i or zoning; nspecting, licensing, regulating or auditing any person; or Mr. Jack E. Sharrock May 20, 1992 Page 3 (5 any other activity where the official action has an economic impact of greater than a de minimis nature on the'iriterests of any person. "Public employee" shall not include individ rials who are employed by the State or any - political subdivision thereof in teaching as distinguished from administrative duties. 65 P.S. §402. The regulations of the-State Ethics Commission similarly define the term public employee as above and also set forth that the term includes any individual: Who meets the criteria of either subclause (I) or (II): (I) The individual is: (a) a person who normally performs his responsibility in the field without on site supervision; (b) the immediate supervisor of a person who normally performs his responsibility in the field without on -site supervision; or (c) the supervisor of any highest level field office. (`II) The individual is a person: (a) who: (1) has the authority to make final decisions; (2) has the authority to forward or stop -recommendations from being sent to the person or body with the authority to make final decisions; (3) prepares or supervises the :preparation of final recommen- dations; or (4) makes final technical recommen- Mr. Jack E. Sharrock May 20, 1992 Page 4 - dations; and (b) ` whose recommendations or actions: (1 are an inherent and recurring part of his position; and (2) affect organizations other than his own organization. (ii) 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. (iii) Persons in the positions listed below are generally considered public employees. (A) Executive and special directors or assistants reporting directly to the tgency 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 before the public. (D) Solicitors, engineers, managers, and secretary- treasurers acting as managers, i police chiefs, chief clerks, chief purchasing agents, grant and contract managers, . housing and building inspectors, 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 business managers and M. Jack E. Sharrock May 20, 1992 Page 5 51 Pa. Code 51.1. principals. (iv) Persons in the positions listed below are generally not considered public employees. (A) City clerks, other clerical staff, road masters, secretaries, police officers, welfare case wo maintenance workers, construction workers, detectives, 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. The question you present must be - reviewed under these provisions of the statute and the regulations of the Commission in light of your duties and obligations as described in your job description and/or classification specifications, under which you operate. The inquiry necessarily focuses on the job itself and not on the individual incumbent in the -position, the variable functions of the position, or the manner in which a particular individual occupying a position may carry out those functions. See Phillips v. State Ethics Commission, 79. Pa-. Cmwlth. 491, 470 A. 2d 659 (1984); and Mummau v.,Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982). Also, in reviewing your question, the Commonwealth Court in its ruling in Phillips, supra, at page 661, directs this Commission to construe coverage of the Ethics Act broadly, rather than narrowly, and conversely, directs that exclusions from the Ethics Law should be narrowly construed. 'Based.upon this directive and reviewing the definition of. "public employee ". in the statute and the regulations and opinions of this Commission, in light of your job functions and the information available, the necessary conclusion is that you are a "public employee" subject to the financial reporting and disclosure requirements of the Ethics Law. It is clear that in your capacity as a "vocational Rehabilitation Supervisor, with OVR, you have the ability to recommend official action with respect to s4tragraph (5) within the definition of "public employee" as set forth in the Ethics Law, 65 P.S. S402. Specifically, you, confer and work with physicians, Mr. Jack E. Sharrock May 20, 1992 Page 6 hospital personnel, and other. governmental and private °agencies in determining the feasibility for rehabilitation and making referrals and supervising the carrying out of rehabilitative plans. You plan and supervise the administrative aspects of the program such as assigning cases, scheduling, and directing the flow of work. You plan, supervise, and participate in unit training activity. You meet frequently with unit counselors to assess and advise about the development of individual cases, and you staff and screen said cases with counselors, medical personnel, and occasionally administrators for the purpose of accepting cases, moving them, or approving them for services. You authorize the expenditure of funds by signing authorizations, and review and approve counselor expense accounts. Additionally, you are the district wide coordinator of the SSA program. These activities fall within the definition of public employee as contained in the regulations of the Commission in Section 1.1, subparagraph (B)(II). 51 Pa. Code 1.1. Under these circumstances and given your duties and responsibilities as outlined above, you are a "public employee" as that term is defined in the Ethics Law. Conclusion: You are to be considered a "public employee" in your capacity as a Vocational Rehabilitation Supervisor with the Commonwealth of Pennsylvania, Department of Labor and Industry, Office of Vocational Rehabilitation. Accordingly, you must file a Statement of Financial Interests for each year in which you hold the position outlined above and for the year following your termination of this service. If you have not already done so, a Statement of Financial Interests must be filed within 15 days of this Advice. This Statement of Financial Interests would report information of the prior calendar year. Pursuant to Section 7(11), this 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, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. such This letter is a public record and will be made available as Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission) will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at Mr. Jack E. SharroCk May 20, 1992 Page 7 the Commission within 15. days of the date of this Advice pursuant to 51' Pa. , Code 52.12. Sincerely, Vincent J. Dopko Chief Counsel