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HomeMy WebLinkAbout04-012 ClarkeOPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Michael J. Healey Paul M. Henry Raquel K. Bergen DATE DECIDED: 9/21/04 DATE MAILED: 10/1/04 04 -012 Bridget E. Clarke, Esquire Sheller, Ludwig & Bad P.C. 1528 Walnut Street, 3 Floor Philadelphia, PA 19102 Re: Public Employee; Statement of Financial Interests; Unemployment Compensation Claims Examiner; Department of Labor and Industry; Appeal of Advice. Dear Ms. Clarke: This Opinion is issued in response to the appeal of Advice of Counsel, 04 -546, which was issued on May 13, 2004. I. ISSUE: Whether an Unemployment Compensation Claims Examiner with the Department of Labor and Industry ( "L &I ") would be considered a "public employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., and Regulations of the State Ethics Commission, and particularly, the requirements for filing Statements of Financial Interests. II. FACTUAL BASIS FOR DETERMINATION: By letter dated May 25, 2004, you appealed Advice of Counsel, 04 -546 issued on May 13, 2004. In your initial letters requesting an advisory, you presented the following facts. Your office serves as legal counsel to the Pennsylvania Social Services Union, Local 668 of the Service Employees International Union. You are seeking an advisory on Clarke, 04 -012 October 1, 2004 Page 2 behalf of Michelle Williard ( "Williard "), an Unemployment Compensation ( "UC ") Claims Examiner at the UC Service Center in Taylor, Pennsylvania. You ask whether Williard as a UC Claims Examiner for L & I would be required to file Statements of Financial Interests pursuant to the Ethics Act. You have submitted copies of Williard's job description and job classification specifications, as well as the organizational chart for the Scranton UC Service Center, which documents were incorporated by reference in the Advice of Counsel and are likewise incorporated herein by reference. The job classification specifications define the position of UC Claims Examiner as "responsible technical work in the processing and examining of claims for unemployment compensation benefits in an Unemployment Compensation Service Center." Job Classification Specifications, at 1. Per the job classification specifications, UC Claims Examiners "make technical decisions in accordance with established laws, policies, and precedents, with decisions being subject to appeal by the claimant or employer." Id. Additionally, "[w]ork is reviewed by an administrative superior through conferences, meetings, observations, and an evaluation of completed work for timeliness and the appropriateness of decisions rendered, and is subject to audits by state and /or Federal auditors." Id. The job description states, "Work is reviewed in progress and upon completion for timeliness, accuracy and for overall effectiveness of operations." Job Description at 2. Per the submitted job description and job classification specifications, Williard's job duties and authority include, inter alia, the following: (1) Ensuring the timely processing and payment of claims for unemployment compensation in accordance with established standards; (2) Conducting fact finding in cases of disputed claims; (3) Assigning credibility to parties in disputed cases to resolve conflicting statements; (4) Making determinations of eligibility and adjustments for disputed claims based on laws, regulations and procedures; (5) Identifying and investigating cases of overpayments of benefits; (6) Investigating cases for fraud issues; (7) Performing reviews and making determinations involving disputed issues and claims overpayments; (8) Making recommendations on the action to be taken for overpayment and suspected fraud cases; (9) Arranging for recovery of monies from claimants; (10) Processing and reviewing appeals in disputed claims by claimants or employers; (11) Participating in appeal hearings; (12) Representing the Office of UC Service Centers before Appeals Referees and the Unemployment Compensation Board of Review; and (13) Representing the Office of UC Service Centers in testimony before magistrates with respect to prosecutions of claimants for UC fraud. Clarke, 04 -012 October 1, 2004 Page 3 In support of your request for an advisory, you have also submitted a Memorandum of Law and copies of the following documents: Letter dated April 23, 2003, from Bruce Ludwig, Esquire of your law firm to the Secretary of Administration and the Director of the Bureau of Human Resources of 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 May 29, 2003, from Attorney Ludwig to the Chief of the Grievance Division of the Bureau of Labor Relations, Office of Administration; Letter dated February 19, 2004, from Attorney Ludwig to the Director of the Bureau of Labor Relations, Office of Administration; and Williard's letter dated April 7, 2004, to Attorney Ludwig. In the Memorandum of Law, you acknowledge that the inquiry as to whether an individual is a "public employee" subject to the Ethics Act invokes an objective test that focuses upon the job itself and not the subjective way in which a particular individual performs duties. Memorandum of Law, at 3. You further acknowledge that this Commission may use an individual's job description and job classification specifications to evaluate whether the individual is a public employee subject to the Ethics Act. Id. You contend that the work of UC Claims Examiners is overseen and scrutinized by an administrative superior as part of multiple "levels of supervision," including on -site supervision, and that the UC Claims Examiners do not have the authority to make final decisions. Id. at 2, 4 -5. You note that a decision by a Claims Examiner may be appealed to an Unemployment Compensation Referee, whose decision may in turn be appealed to the Unemployment Compensation Board of Review, which Board's decision may be appealed to the Commonwealth Court of Pennsylvania. Id. at 5. You contend that the use of the words "technical" and "processing" in the job classification specifications for the UC Claims Examiner position suggest that a person in this position does not exercise his /her own judgment regarding the action to be taken. Id. at 4. You claim that the job duties are "ministerial action," and determinations must be made in accordance with established laws, policies, and precedents." Id. (Quoting Job Classification Specifications, at 1). You note that Claims Examiners are not specifically listed in this Commission's Regulations among examples of positions generally considered public employees. Id. at 4 (citing 51 Pa. Code § 11.1( "public employee ")(iv)(A -D)). Finally, you attempt to distinguish UC Claims Examiners from Claims Settlement Agents for the Department of Public Welfare, who were determined to be public employees subject to the Ethics Act (Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984). You contend that the Claims Settlement Agent can initiate investigations of clients receiving public assistance, but the UC Claims Examiner "merely does `technical work' involving disputed issues and claims overpayments." Memorandum of Law, at 6. You further contend that the Claims Settlement Agent can take steps to encumber financial resources through liens and other legal action, but the UC Claims Examiner has nothing close to this authority." Id. Advice of Counsel, 04 -546 determined that in her capacity as a UC Claims Examiner for L &I, Williard is a "public employee" subject to the Ethics Act and Regulations of this Commission. The Advice reasoned: It is clear that in Williard's capacity as a UC Claims Examiner for L & I, 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 Clarke, 04 -012 October 1, 2004 Page 4 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). Clarke, Advice 04 -546 at 4. The Advice concluded that Williard must file a Statement of Financial Interests each year in which she holds the position of UC Claims Examiner and the year following termination of such service. By letter of May 25, 2004, you appealed Advice of Counsel, 04 -546 and requested an appearance before this Commission. By letter dated July 30, 2004, you were notified of the date, time and location of the public meeting at which your request would be considered. On August 30, 2004, this Commission received your Brief in Support of Appeal, in which you reiterated arguments presented in the aforesaid Memorandum of Law. At the public meeting on September 21, 2004, you participated by telephone hook- up and offered commentary highlighting the arguments presented in your Brief. Representatives of L &I also participated and highlighted the duties of the UC Claims Examiner as a fact - finder and decision -maker in matters involving disputed claims. Our review of this matter is de novo. Spear, Opinion 04 -011. III. 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 that the requestor has submitted. In issuing the advisory based upon the facts that the requestor has submitted, this Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that 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 Clarke, 04 -012 October 1, 2004 Page 5 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. (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. (1) 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 Clarke, 04 -012 October 1, 2004 Page 6 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. (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. The following terms are relevant to your inquiry and are defined in the Ethics Act as follows: § 1102. Definitions "Ministerial action." An action that a person performs in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of the person's own judgment as to the desirability of the action being taken. "Nonministerial actions." An action in which the person exercises his own judgment as to the desirability of the action taken. 65 Pa. C. S. § 1102. As you have acknowledged, status as a "public employee" subject to the Ethics Act is determined by an objective test. The objective test applies the Ethics Act's definition of the term "public employee" and the related regulatory criteria to the powers and duties of the position itself. Typically, the powers and duties of the position are established by objective sources that define the position, such as the job description, job classification specifications, and organizational chart. Thus, the objective test considers what an individual has the authority to do in a given position, rather than the variable functions that the individual may actually perform in that position. See, Philips v. State Ethics Commission, 470 A.2d 659 (Pa. Commw. Ct. 1984); Mummau v. Ranck, 531 Fed. Supp. 402 (E. D. Pa. 1982); Shienvold, Opinion 04 -001; Shearer, Opinion 03 -011. 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. In applying the objective test in the instant matter, we conclude that as a UC Claims Examiner, Williard is a public employee subject to the Ethics Act because she is Clarke, 04 -012 October 1, 2004 Page 7 responsible for taking or recommending official action of a nonministerial nature with regard to category (5) of the definition of "public employee," specifically, "other activities where the official action has an economic impact of greater than a de minimis nature on the interests of any person." 65 Pa.C.S. § 1102. Our analysis is as follows. The first portion of the statutory definition of "public employee" includes individuals with authority to take or recommend official action of a nonministerial nature. 65 Pa.C.S. § 1102. Likewise, the regulatory criteria for determining status as a public employee, as set forth in 51 Pa. Code § 11.1( "public employee ")(ii), include not only individuals with authority to make final decisions but also individuals with authority to forward or stop recommendations from being sent to final decision - makers; individuals who prepare or supervise the preparation of final recommendations; and individuals who make final technical recommendations. Per the job description and job classification specifications, Williard conducts fact - finding in disputed claims cases, assigns credibility to parties as to conflicting statements, determines eligibility for unemployment compensation, identifies and investigates cases of overpayments of benefits, investigates cases for fraud issues, reviews and makes determinations involving disputed issues and claims overpayments, makes recommendations on the action to be taken for overpayment and suspected fraud cases, and arranges for recovery of monies from claimants. According to the job classification specifications, Williard's work is "reviewed by an administrative superior through conferences, meetings, observations, and an evaluation of completed work for timeliness and the appropriateness of decisions rendered, and is subject to audits by state and /or Federal auditors." Job Classification Specifications, at 1. Williard's job description states, "Work is reviewed in progress and upon completion for timeliness, accuracy and for overall effectiveness of operations." Job Description at 2. Based upon the objective documents before us, Williard is supervised, but she has authority to make significant final decisions, particularly as to fact finding, credibility, and eligibility for unemployment compensation. As to other activities delineated above, Williard makes, at a minimum, recommendations to final decision - makers. Most if not all of Williard's above actions are non - ministerial because they require the exercise of independent judgment. For example, it would be impossible to engage in fact - finding or to make determinations of credibility without exercising such judgment. Therefore, Williard is responsible for taking or recommending official action of a nonministerial nature so as to satisfy the first portion of the definition of "public employee." As for the remainder of the definition of "public employee," there is no question that Williard's official job duties and responsibilities have a significant economic impact upon the interests of other persons. Not only do Williard's activities have a significant economic impact upon the interests of persons applying for or receiving unemployment compensation, but they also have a significant economic impact upon the interests of Pennsylvania taxpayers with regard to the payment of claims and investigations of overpayment and fraud. Thus, through a straightforward application of the statutory definition and regulatory criteria under the judicially approved objective test, the necessary conclusion is that as a UC Claims Examiner, Williard is a public employee subject to the Ethics Act because she is responsible for taking or recommending official action of a nonministerial nature with regard to "other activities where the official action has an economic impact of greater than a de minimis nature on the interests of any person." 65 Pa.C.S. § 1102. We reject your arguments to the contrary. Clarke, 04 -012 October 1, 2004 Page 8 You contend that the work of UC Claims Examiners is overseen and scrutinized by an administrative superior as part of several levels of supervision, and that the UC Claims Examiners do not have the authority to make final decisions. For reasons set forth above, we have concluded that Williard's level of authority satisfies the statutory definition and regulatory criteria. You note that Williard's decisions are appealable. However, the fact that a decision by a UC Claims Examiner may be appealed is indicative that it is a final decision. Final decisions typically are appealable. In any event, we reject any argument that a decision must be non - appealable in order for the decision to be "final." Such an absurd position would arguably exclude from the definition of "public employee" anyone not serving as a member of a court of last resort. You contend that the use of the words "technical" and "processing" in the job classification specifications for the UC Claims Examiner position suggest that a person in this position does not exercise his /her own judgment regarding the action to be taken. We disagree. Indeed, this Commission's Regulations specifically include persons who make "final technical recommendations" as being within the definition of "public employee." 51 Pa. Code § 11.1( "public employee ")(ii). More importantly, these words may not be taken out of context. The job classification specifications define the position of UC Claims Examiner as "responsible technical work in the processing and examining of claims for unemployment compensation benefits in an Unemployment Compensation Service Center." Job Classification Specifications, at 1. (Emphasis added). Per the job classification specifications, UC Claims Examiners "make technical decisions in accordance with established laws, policies, and precedents, with decisions being subject to appeal by the claimant or employer." Id. (Emphasis added). When the words "technical" and "processing" are read in context, Williard's actions are not ministerial: to the contrary, Williard's work is responsible technical work. Williard is not merely processing claims in some non - discretionary paper - pushing way, but rather, Williard is processing and examining claims and making technical decisions. We also reject your assertion that Williard's job duties are "ministerial action." Based upon the objective documents before us, we have determined that Williard uses independent judgment in making significant determinations and recommendations regarding unemployment compensation claims. You note that Williard's determinations must be made in accordance with established laws, policies, and precedents. The fact that Williard's determinations must be in accordance with established laws, policies, and precedents does not evidence a lack of discretionary authority, any more than a court could be characterized as lacking discretionary authority merely because it applies laws and precedents. As for the fact that UC Claims Examiners are not specifically listed in this Commission's Regulations among examples of positions generally considered public employees (51 Pa. Code § 11.1( "public employee ")(iv)(A -D)), we have already held that the lists of examples of covered and non - covered positions in this Commission's Regulations are just that —a few examples. No credible argument may be made that they are anything else. Spear, supra. However, we would parenthetically note that Williard's official activities include conducting investigations, and investigators are among those listed as typically covered by the Ethics Act's definition of "public employee." 51 Pa. Code § 11.1( "public employee ")(iv)(D). Finally, you unsuccessfully attempt to distinguish the position of UC Claims Examiner from the position of "Claims Settlement Agent I" for the Department of Public Welfare, which position has already been determined to fall within the Ethics Act's definition of "public employee." (Phillips v. State Ethics Commission, supra). You claim that the Claims Settlement Agent I can initiate investigations of clients receiving public Clarke, 04 -012 October 1, 2004 Page 9 assistance, but the UC Claims Examiner "merely does `technical work' involving disputed issues and claims overpayments." Memorandum of Law, at 6. However, your claim is contradicted by the objective documents before us, which establish that Williard has the authority to both identify and investigate cases of overpayments of benefits and investigate cases for fraud issues. Job Description, at 1; Job Classification Specifications, at 1. You further contend that the Claims Settlement Agent I can take steps to encumber financial resources through liens and other legal action, but the UC Claims Examiner has nothing close to this authority." Memorandum of Law, at 6. However, once again, we turn to Williard's job description, which broadly states that Williard has the authority to arrange for recovery of monies from claimants. Job Description, at 1. Based upon the above analysis, we deny the appeal and affirm Clarke, Advice of Counsel 04 -546. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. IV. CONCLUSION: An Unemployment Compensation Claims Examiner for the Commonwealth of Pennsylvania, Department of Labor and Industry ( "L &I ") would be considered a "public employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., and Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq., and particularly, the requirements for filing Statements of Financial Interests. An individual serving in such position must file a Statement of Financial Interests each year in which the position is held and the year following termination of such service. Act. The appeal is denied. Advice of Counsel, 04 -546 is affirmed. The propriety of the proposed conduct has only been addressed under the Ethics Pursuant to Section 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). By the Commission, Louis W. Fryman Chair Commissioner Michael J. Healey, Esq., did not participate in the consideration of this matter.