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HomeMy WebLinkAbout05-545 HessRobert V. Hess Deputy Managing Director Special Needs Housing Office of Emergency Shelter & Services City of Philadelphia 1321 Arch Street, 5 Floor Philadelphia, PA 19107 Re: Public Employee; SFI; Social Service Program Analyst; Social Service Program Supervisor; City of Philadelphia; Office of Emergency Shelter and Services. Dear Mr. Hess: ADVICE OF COUNSEL May 24, 2005 05 -545 This responds to your letter dated April 20, 2005, by which you requested advice from the State Ethics Commission. Issue: Whether a Social Service Program Analyst and Social Service Program S upervisor with the City of Philadelphia, Office of Emergency Shelter and Services would be considered "public employees" 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 the current employer of fifteen (15) individuals (collectively referred to herein as the "Employees ") holding the job title of either Social Service Program Supervisor or Social Service Program Analyst, you seek an advisory from the State Ethics Commission as to whether such Employees are "public employees" 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 they are required to file Statements of Financial Interests. You have submitted facts that may be fairly summarized as follows. The City of Philadelphia ( "City "), Office of Emergency Shelter Services ( "OESS ") is responsible for providing shelter and supportive services for homeless adults and families in the Philadelphia area through a variety of City offices and outside agencies that contract with the City. Certain Social Service Program Analysts and Supervisors assigned to OESS are responsible for monitoring compliance by contracted shelters with the provisions of the emergency shelter services contracts for homeless families and single adults. Other responsibilities include monitoring, inspecting, and providing technical assistance to a specified number of shelters, and providing overall contractual Hess, 05 -545 May 24, 2005 Page 2 monitoring for compliance and operations, which activities translate into an Annual Compliance Report that meets Federal, State, and County requirements. Specific responsibilities of a Social Service Program Analyst include periodically monitoring case management services provided under contract for single adults in emergency shelter placement, ensuring compliance with City requirements mandated by the Department of Licenses and Inspections and Health Department environmental reports, and following up to assure compliance with City Code violations. In addition, an individual in this position participates in various meetings and in the implementation and integration of Client -based Performance Measurements, which include contracts, proposal and budget reviews and recommendations. Critical technical support is provided to contracted providers by means of site visits, follow -up telephone calls and other interventions directed toward conditions that affect the health and safety of residents. You state that based upon the foregoing, OESS concluded that individuals holding the job title of either Social Service Program Supervisor or Social Service Program Analyst are "public employees," and requested such individuals to file Statements of Financial Interests ( "SFIs "). OESS was recently advised by AFSCME District Council 47 that their members have been instructed not to comply with OESS's request. You have submitted copies of the following documents, which documents are incorporated herein by reference: City of Philadelphia, Division of Social Services, Adult Services Organization Chart; Contracts Management Unit Organization Chart; Housing Support Services Division Organization Chart; Quality Management Team Organization Chart; job descriptions for Social Service Program Supervisor and Social Service Program Analyst; and a list of the names of the individuals on whose behalf you seek this advisory and their corresponding job titles. 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 requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the 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 requester 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 requester 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 Hess, 05 -545 May 24, 2005 Page 3 (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. (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. Hess, 05 -545 May 24, 2005 Page 4 (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. (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 the duties and responsibilities of a Social Service Program Supervisor or Social Service Program Analyst, the necessary conclusion is that the Employees are "public employees" subject to the financial reporting and disclosure requirements of the Ethics Act. With regard to a Social Service Program Supervisor, it is clear that an individual holding this position has the ability to take or recommend official action with respect to subparagraphs (1), (2), (4), and (5) within the definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. § 1102. Specifically, the job responsibilities of a Social Hess, 05 -545 May 24, 2005 Page 5 Service Program Supervisor include, but are not limited to the following: supervising a staff of subordinate Social Service Program Analysts; participating in developing program budgets, locating funding sources and drafting applications for funding; developing objective criteria for evaluating the effectiveness of programs; determining whether program operations conform with stated objectives and established guidelines; supervising and participating in the work of analysts engaged in conducting on -site evaluations of operations of contracted agencies as well as in -house organizational units; supervising the evaluation of federal and state social service program funding legislation to identify programs qualified for funding; writing requests for funding; reviewing proposals for contracted social services and recommending the selection of potential providers; and participating in formulating strategies for developing and modifying programs for children and youths or adults. These activities would also meet the criteria for determining 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, an Employee serving in the position of a Social Service Program Supervisor is a "public employee" subject to the Ethics Act and such an Employee is required to file Statements of Financial Interests pursuant to the Ethics Act. With regard to a Social Service Program Analyst, it is clear that an individual holding this position has the ability to take or recommend official action with respect to subparagraphs (1), (2), (4), and (5) within the definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. § 1102. Specifically, the job responsibilities of a Social Service Program Supervisor include, but are not limited to the following: conducting on- site evaluations of provider agencies to evaluate the social service programs and activities contracted by the City; determining agencies' conformance with stated objectives and departmental and governmental standards; identifying problem areas in the delivery of contracted services; analyzing staffing patterns, work process, and administrative operations and procedures; developing methodology for collecting information used for rogram or budget planning evaluation; selecting sampling techniques, analyzing data, and evaluating findings; performing in -house organizational quality control evaluations; participating in formulating strategies to improve existing programs and procedures; participating in the development of new program proposals to ensure their conformance with stated guidelines; identifying funding criteria and program guidelines of federal and state program legislation and ascertaining their impact on providers' social services; identifying social service programs qualified for funding under federal or state program legislation; writing requests for funding based upon funding criteria or legislation; processing and tracking contracts for provider social services; and securing all necessary contract signatures for finalization. These activities would also meet the criteria for determining 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, an Employee serving in the position of a Social Service Program Analyst is a "public employee" subject to the Ethics Act and such an Employee is required to file Statements of Financial Interests pursuant to the Ethics Act. Conclusion: The fifteen (15) individuals on whose behalf you seek this advisory (collectively referred to herein as the "Employees ") who hold the job title of either Social Service Program Supervisor or Social Service Program Analyst with the City of Philadelphia ( "City "), Office of Emergency Shelter Services (` OESS "), are "public employees" subject to the Public Official and Employee Ethics Act and the Regulations of the State Ethics Commission. Accordingly, such Employees must file Statements of Financial Interests each year in which they hold their positions and the year following their termination of such service. If the Employees have not already done so, they must file Statements of Financial Interests within 30 days of this Advice. Hess, 05 -545 May 24, 2005 Page 6 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 requester 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