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HomeMy WebLinkAbout04-556 SankeySteven Alan Sankey 9206 Academy Road Philadelphia, PA 19114 ADVICE OF COUNSEL May 27, 2004 Re: Public Employee; FIS; Tax Collections Coordinator; City of Philadelphia. Dear Mr. Sankey: 04 -556 This responds to your letter dated April 28, 2004, by which you appealed the Statement of Financial Interests (SFI) filing requirement of the Ethics Act which will be treated as a request for advice from the State Ethics Commission. Issue: Whether as a Tax Collections Coordinator with the City of Philadelphia (City) 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 SFI's. Facts: You seek a determination as to whether, in your capacity as a Tax Coll Coordinator with the City, you are a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. 1102; 51 Pa. Code §11.1. You specifically question whether you are required to file SFI's. In your notice of appeal, you state that you have held the position for nine years without any change in your duties and responsibilities. You supervise a small staff involved in collections for the Philadelphia Gas Works (PGW) which has not relinquished any authority to you or the city solicitor as to the mitigation of owed delinquencies. Your unit identifies delinquencies and reports same to the agencies, mortgage companies, or realtors. Collection claims are handled by the sheriff. In instances where there are insufficient funds to satisfy outstanding obligations, you provide the relevant facts to PGW, the management personnel of which alone decides if delinquencies will be reduced. Since you have no input as to PGW decisions regarding debt reductions, you state that you should not be subject to the SFI filing requirements. You have provided a copy of your job description, Notice of Appeal, and e-mail of your denial which are incorporated herein by reference. From your job description, your duties and responsibilities include the following: "This is administrative and supervisory tax enforcement work planning, implementing and coordinating litigation programs and enforcement actions against Sankey 04 -556 May 27, 2004 Page 2 delinquent and /or non -filer taxpayers. Employees in this class direct the activities of technical and clerical personnel reviewing, compiling and processing tax accounts, initiating legal actions, negotiating settlements and executing judgments in order to secure payment of arrearages. Work includes coordinating the scheduling of court hearings for delinquent taxpayers, enforcement efforts with outside contractors, and caseloads with various divisions of the Revenue Department. Contact with taxpayers, attorneys, governmental officials and representatives of contractors, the court and other City departments is a significant aspect of the work. Work is performed under the technical direction of an attorney." 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 ": (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. Sankey 04 -556 May 27, 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. Sankey 04 -556 May 27, 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 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. Specifically, you have administrative and supervisory responsibilities in tax enforcement as to work planning, implementing and coordinating litigation programs and enforcement actions against delinquent and /or non -filer taxpayers; you direct the activities of technical and clerical personnel in reviewing, compiling and processing tax accounts, you initiate legal actions, negotiate settlements and execute judgments in order to secure payment of arrearages; and you coordinate the scheduling of court hearings for delinquent taxpayers, enforcement efforts with outside contractors, and caseloads with various divisions of the Revenue Department. It is clear that in your capacity as a Tax Collections Coordinator, 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. § lc 1102. The above activities also meet the criteria for determining your status as a pub employee under the Regulations of the State Ethics Commission, specifically at 51 Pa. Code 11.1, "public employee," subparagraph (ii). Therefore, you are a "public employee' subject to the Ethics Act and you are required to file SFI's pursuant to the Ethics Act. Although you state in your appeal that you do not engage in the activities as delineated in your job description but exercise much more limited functions as set forth in your appeal, the Commonwealth Court has held that coverage is determined based upon what is set forth in the job description rather than any limitations as to the actual job performance. Based upon the objective test enumerated by Commonwealth Court, you are a public employee as that term is defined under the Ethics Act and the regulations of this Commission. Parenthetically, you have not indicated that you have ever challenged or sought to modify your job description in terms of the delineated duties and responsibilities. As noted, the job description controls in determining whether you are a public employee required to file SFI's. Conclusion: In your capacity as a Tax Collections Coordinator with the City of Philadelphia, 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. Sankey 04 -556 May 27, 2004 Page 5 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