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HomeMy WebLinkAbout92-604Mr. Claire L. Peeling R.D. #10, Box 108 York, PA 17404 Dear Mr. Peeling: STATE ETHICS COMMISSION 309fINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 18, 1992 92 -604 Re: Claims Investigation Agent II; Office of Fraud and Abuse Investigations and Recovery; Bureau of Child Support Enforcement; Department of Public Welfare; Public Employee; FIS. This responds to your Financial Disclosure Appeal dated May 1, 1992, which will be treated as a request for advice from the State Ethics Commission. Issue: You ask whether in your capacity as a Claims Investigation Agent II with the Office of Fraud and Abuse Investigations and Recovery (OFAIR), Bureau of Child Support Enforcement, Department of Public Welfare (DPW), you are to be considered a "public employee" as that term is defined in the Public Official and Employee Ethics Law. Facts: You state that you do not have anything to disclose and should not be required to file a Statement of Financial Interests. 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 for this position. Your job description and your organizational chart have been obtained from DPW and are incorporated herein by reference. According to your job description, you function as a Field Agent II for the Bureau of Child Support Enforcement. You are required to work closely with and coordinate the activities: of various judicial and governmental agencies involved with the Child Support Program in an assigned geographical area. This includes providing assistance and guidance in the completion and proper handling of support referrals; representing the Department's Mr. Claire L. Peeling June 18, 1992 Page 2 interest in support conferences and hearings; clarifying and interpreting policy; monitoring case work load to ensure efficient and timely handling of cases; preventing backlogs and identifying and initiating enforcement actions for support collection and paternity establishment. In dealing with the public and judicial/ governmental officials, you are to promote working relationships which assure the effectiveness of DPW's programs and that the obligations due the Commonwealth are protected and satisfied. Agents in your classification are required to be thoroughly knowledgeable of State and Federal child support program law and regulations and application at the local program level so as to be able to assess the degree and effectiveness of its implementation. Your compliance review function requires an ability to inculcate policy and recommend necessary programatic alterations to produce needed improvements. The duties of your position require that you investigate, assemble, analyze data and prepare the needed documentation and /or reports to effectively complete case assignments. You are required to perform your work at a level that assures the proper selection, preparation and prosecution of fraud cases to achieve a high level of successful prosecutions. You operate under moderate supervision. Your duties and responsibilities may also include such other duties as are set forth in the incorporated job description. Discussion: The question to be answered is whether, in your capacity as a Claims Investigation Agent II for OFAIR, Bureau of Child Support Enforcement, Department of Public Welfare (DPW), you 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 aide minimis nature on the in tere of any person. Mr. Claire L. Peeling June 18, 1992 Page 3 65 P.S. §402. "Public employee" shall not include individ- uals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. 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: (B) Who meets the criteria of either subcl.ause (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- dations; and (b) whose recommendations - or actions: Mr. Claire L. Peeling June 18, 1992 Page 4 (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 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. Mr. Claire L. Peeling June 18, 1992 Page 5 51 Pa. Code S1.1. (A) City clerks, other clerical staff, road masters, secretaries, police officers, welfare case workers, 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. We must review the question you present 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. Our 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 us 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 to us, we must conclude 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 Claims Investigation Agent II for DPW's OFAIR, Bureau of Child Support Enforcement, you have the ability to .recommend official action with respect to subparagraph (5 within the definition "public employee" as set forth in the Ethics Law, 65 P.S. 8402. Specifically, you investigative, assemble, analyze data and prepare needed documentation and /or reports to effectively complete case assignments. You provide assistance and guidance in the completion and proper handling of support referrals. You represent DPW interest in support conferences and hearings and identify . and initiate enforcement actions for support collection and paternity Mr. Claire L. Peeling June 18, 1992 Page 6 establishment. You perform your work at a level that assures the proper selection, preparation and prosecution of fraud cases to achieve a,high level of successful prosecutions. •Additionally, you perform a compliance review function which requires an ability to inculcate policy and to make recommendations for necessary programatic alterations to produce needed improvements. These activities fall within the definition of public employee as contained in the regulations of the Commission in Section 1.1, subparagraph (i)(A) and (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. See, Garlan Opinion 89 -004 (Professional Conduct Investigator for the Department of State is a public employee required to file the Statement of Financial Interests; see also, Phillips v. Com., State Ethics Commission, 79 Pa. Commw. 491, 470 A.2d 659 (1984) (Affirming the Commission's adjudication that a Claim Settlement Agent I for DPW is a public employee pursuant to the Ethics Act and required to file a Statement of Financial Interests). Conclusion: You are to be considered a "public employee" in your capacity as a Claims Investigation Agent II for the Office of Fraud and Abuse Investigations and Recovery (OFAIR), Bureau of Child Support Enforcement with the Commonwealth of Pennsylvania, Department of Public Welfare (DPW). 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 with your Department 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 rir. Claire L. Peeling June 18, 1992 Page 7 the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code S2.12.. Sincerely, Vincent J. Dopko Chief Counsel '' c �