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HomeMy WebLinkAbout04-546 ClarkeBridget E. Clarke, Esquire Sheller, Ludwig & Bad P.C. 1528 Walnut Street, 3 Floor Philadelphia, PA 19102 Re: Public Employee; SFI; Unemployment Compensation Claims Examiner; Department of Labor and Industry. Dear Ms. Clarke: ADVICE OF COUNSEL May 13, 2004 04 -546 This responds to your letter dated April 13, 2004, by which you requested advice from the State Ethics Commission. Issue: Whether an Unemployment Compensation Claims Examiner with the rtment of Labor and Industry, hereinafter L &I, 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: As legal counsel to the Pennsylvania Social Services Union, Local 668 of the Service Employees International Union, you seek an advisory on behalf of Michelle Williard ("Williard"), an Unemployment Compensation ( "UC ") Claims Examiner at the UC Service Center, Taylor, Pennsylvania. You have submitted a copy of Williard's job description and a copy of the Scranton USCS Organizational Chart, which documents are incorporated herein by reference. You have also submitted various attachments to your request including copies of the following documents: Memorandum of Law; Letter dated April 23, 2003 from Bruce Ludwig, Esquire of your law firm to the Secretary of Administration and the Director of Human Resources of the Department of Labor and Industry ( "L & I "); Letter dated May 23, 2003 from the Chief of the Grievance Division of the Bureau of Labor Relations, Office of Administration to Attorney Ludwig; Letter dated February 19, 2004 from Attorney Ludwig to the Director of Labor Relations, Office of Administration; your letter dated March 18, 2004 to the State Ethics Commission; your letter dated March 29, 2004 to the State Ethics Commission; and Williard's letter dated April 7, 2004 to Attorney Ludwig. You ask whether Williard as a UC Claims Examiner for L & I would be required to file a Statement of Financial Interests ( "SFI "). Clarke/Williard 04 -546 May 13, 2004 Page 2 Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107 (11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. 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 ": (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. Clarke/Williard 04 -546 May 13, 2004 Page 3 (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. (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. Clarke/Williard 04 -546 May 13, 2004 Page 4 (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 Williard's duties and responsibilities, the necessary conclusion is that she is a "public employee" subject to the financial reporting and disclosure requirements of the Ethics Act. It is clear that in Williard's capacity as a UC Claims Examiner for L & 1, she has 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, Williard has the power and authority to make determinations of applicants' eligibility for benefits; issue decisions based upon analysis of facts to deny or award benefits; identifies and investigates cases of overpayments of benefits and arranges for recovery of monies from claimants; provides technical analysis of facts regarding cases of prosecution of claimants for UC fraud and represents the Office of UC Service Centers in testimony before magistrates; and ensures the timely processing and payment of claims for UC compensation in accordance with established standards. These activities would also meet the criteria for determining Williard's status as a public employee under the Regulations of the State Ethics Commission, specifically at 51 Pa. Code § 11.1, "public employee," subparagraph (ii). Therefore, Williard is a "public employee" subject to the Ethics Act and she is required to file Statements of Financial Interests pursuant to the Ethics Act. The foregoing conclusion is consistent with Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Commw. Ct. 1984), wherein Commonwealth Court in essence held that status as a "public employee" is determined by what a person is authorized to do rather than what he actually does. Conclusion: In Michelle Williard's capacity as a Unemployment Compensation Claims Examiner for the Department of Labor and Industry, she is a "public employee" subject to the Public Official and Employee Ethics Act and the Regulations of the State Ethics Commission. Accordingly, Williard must file a Statement of Financial Interests each year in which she holds the aforesaid position and the year following your termination of such service. If Williard has 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. Clarke/Williard 04 -546 May 13, 2004 Page 5 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