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HomeMy WebLinkAbout92-591Ms. Magdalen Y. Lawton Real Estate Specialist City of Philadelphia Department of Public Property 1600 Arch Street, Room 625 Philadelphia, PA 19103 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 28, 1992 92 -591 Re: City; Real Estate Specialist II; Public Employee; FIS. Dear Ms. Lawton: This responds to your letter dated April 22, 1992 in the nature of a Financial Interest disclosure appeal, which will be treated as a request for advice from the State Ethics Commission. Issue: You ask whether in your capacity as a Real Estate Specialist II with the City of Philadelphia ( "City ") 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. You state that you are a civil servant tested and examined for this position, and that you are not a political appointee serving at the pleasure of the Mayor or the political party which you represent. You note that under Civil Service Regulations, your position dictates the non - participation in any political activity whatsoever. You have submitted a copy of the job specifications for a Real Estate Specialist II for the City, together with an uncompleted copy of the Statement of Financial Interests form and two memoranda from various City officialsi personnel regarding the requirement to file the Statement of Financial Interests, all of which documents are incorporated herein by reference. Finally, you inquire generally about the Ethics Law and offer commentary on the form itself. In order to review the question presented, we will briefly outline the duties and responsibilities associated with your position as contained in your classification specifications for Magdalen Y. Lawton May 28, 1992 Page 2 this position. Your duties and responsibilities, as set forth in this document are incorporated herein by reference. An employee in this position performs real estate work involving purchasing, selling, and /or leasing real estate properties. The work of the Real Estate Specialist II differs from that of the next lower class in that employees are assigned . to projects of greater scope and complexity requiring the exercise of greater independence of judgment. Work is performed under the general supervision of a technical superior. The significant aspects of the work include the explanation of City real estate procedures to owners and negotiating terms with owners, prospective buyers, lessees, and /or their agents to obtain a successful conclusion. The Real Estate Specialist II researches, negotiates and concludes the more complex real estate transactions such as those involving purchasing several residential properties, purchasing commercial and industrial property, purchasing property for federally- funded projects and acquiring easement and air rights. The Real Estate Specialist II negotiates purchase prices agreeable to the owners and the appropriate City departments and requests condemnation procedures if agreement cannot be reached. It is noted that the above are just examples of the duties and responsibilities of the Real Estate Specialist II as set forth in the classification specifications. Discussion: The question to be answered is whether you, in your capacity as a Real Estate Specialist II for the City of Philadelphia, are to be considered a "public employee." The Ethics Law defines that term as follows: Section 2. 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. "Public employee" shall not include individ— uals who are employed by the State or any political subdivision thereof in teaching as Magdalen Y. Lawton May 28, 1992 Page 3 65 P.S. S402. The regulations of the State Ethics Commission similarly define the term public employee as above and also set forth that tile term includes any individual: distinguished from administrative duties. (B) 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 o 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 reconmten- dations; or (4) makes final technical recommen- dations; and (b) whose recommendations or actions:- (1) are an .inherent and recurring part of his position; and Magdalen Y. Lawton May 28, 1992 Page 4 (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 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 before the public. (D) Solicitors, engineers, managers, and secretary - treasurers acting as managers, 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 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 Magdalen Y. Lawton May 2$, 1992 Page 5 'orkers, 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 clerk of the schools. 51 Pa. Code S1.1. 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 ob 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 the 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 submitted,- 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 in your capacity as a Real Estate Specialist II for the City of Philadelphia, you have the ability to recommend official action with respect to subparagraphs (1) and (5) within the definition of "public employee" as set forth in the Ethics Law, 65 P.S. S402. Specifically, you research, negotiate and conclude the purchase, sale, and /or lease of real estate properties on behalf of the City, and in so doing you negotiate the terms with the owners, prospective buyers, lessees, and /or their agents to a successful conclusion or you request condemnation procedures if agreement cannot be reached. In performing your duties and responsibilities, you work on projects of greater scope and complexity than the next lower class of employee, as to which projects you ekercise greater independence of -judgment. These activities- fall within the definition of public employee as contained in the regulations of the Commission in Section 1.1, subparagraphs 0A) and ( -B) (1 ) =51 z. a, - Code 1.1. Under these Magdalen Y. Lawton May 28, 1992 Page 6 circumstances and given your duties and responsibilities as outlined above, you are a "public employee" as that term is defined in the Ethics Law. As for your general inquiry regarding the nature of the Ethics Law, the question is too general to be answered in the context of an advisory. The Ethics Law may be reviewed in its entirety at 65 P.S. 5401 et sea. Conclusion: You are to be considered a "public employee" in your capacity as a Real Estate Specialist II with the ,City of Philadelphia. Accordingly, you must file a Statement of Financial Interests for each year in which you hold the position 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. 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 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 the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, Vincent \4. Ddpko Chief Counsel