HomeMy WebLinkAbout07-511 MIHALIKJohn A. Mihalik, Esquire
Hummel & Lewis, LLP
3 East Fifth Street
Bloomsburg, PA 17815
Dear Mr. Mihalik:
ADVICE OF COUNSEL
February 28, 2007
07 -511
This responds to your letters dated November 29, 2006, January 4, 2007, and
February 26, 2007, by which you requested advice from the State Ethics Commission.
Issue: Whether a Sergeant with the Columbia County Prison 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 Solicitor for the Columbia County Prison Board ( "Board "), you have
been authorized by the Board to seek a determination from the State Ethics
Commission as to whether those individuals employed as Sergeants ( "the Sergeants")
with the Columbia County Prison ("the Prison ") would be considered "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 the Sergeants
are required to file Statements of Financial Interests.
You have submitted a copy of the job description for the position of Sergeant,
which is incorporated herein by reference. Per the job description, the duties and
responsibilities of a Sergeant include, in pertinent part, "keep[ing] [the] inmate money
book and cash box," performing "duties of work release officer,' and supervision of
corrections officers and cook/corrections officers to ensure proper completion of shift
duties and adherence to policy and procedure." Job description, at 1 -2.
You have also submitted supplemental lists of duties performed by the
Sergeants, which are incorporated herein by reference. Per these lists, the duties and
responsibilities of a Sergeant include, in pertinent part, the following:
• "Verify amount of money in intake box ";
• "Daily deposit of inmate money transactions ";
• "Process and disbursement of cost recovery fees ";
• Daily balancing of the inmate account ";
• "Weekly check writing for payment to County Treasurer, commissary account
and telephone account ";
Mihalik, 07 -511
February 28, 2007
Page 2
• "Maintain proper records of disbursement of all funds and provide monthly
reports to Remit Corp., County Treasurer, Warden and Prison Board ";
• "Process inmates and supervise the inmate work release program ";
• "Process inmates and supervise the inmate work program ";
• "Daily supervision and assignment of work duties to staff members ";
• "Supervision of daily Prison operations "; and
• "Process inmate work checks for disbursement."
Supplemental lists of Sergeants' lob duties.
Following receipt of your letter dated January 4, 2007, you were asked by letter
dated February 2, 2007, to provide clarification with regard to various areas of the
Sergeants' job duties that appeared to be unclear or ambiguous. By facsimile
transmission dated February 26, 2007, you submitted a copy of a memorandum dated
February 13, 2007, from William Campbell, the Prison Warden ( "Warden Campbell "), to
you. In his memorandum, Warden Campbell states in pertinent part:
1. Sergeants do not have the authority to take or
recommend official action of a non - ministerial nature.
2. Sergeants do have access to the inmate cash box.
However, they do not have the authority to deny an
inmate access for any reason. A monthly checks and
balances audit is conducted.
3. Inmates do earn wages while in Prison, by either
Prison employment or work release. The Sergeants
do not determine the eligibility for employment. The
Deputy Warden approves all employment requests.
Inmate wages are handled through the commissary.
4. Sergeants may recommend the hiring or termination
of Prison employees.
5. Sergeants do not recommend disciplinary measures.
All disciplinary action is completed by the Discipline
Hearing Committee.
6. Sergeants do not have the authority to approve or
deny the disbursement of any public funds.
Memorandum of February 13, 2007.
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
Mihalik, 07 -511
February 28, 2007
Page 3
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.
(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.
Mihalik, 07 -511
February 28, 2007
Page 4
(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.
(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
Mihalik, 07 -511
February 28, 2007
Page 5
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.
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. The objective test considers what an individual
has the authority to do in a given position based upon these objective sources, rather
than the variable functions that the individual may actually perform in the position. See,
Philips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion
04 -002; Shienvold, Opinion 04 -001; Shearer, Opinion 03 -011. The Commonwealth Court
of Pennsylvania has specifically considered and approved this Commission's objective
test and has directed that coverage under the Ethics Act be construed broadly and that
exclusions under the Ethics Act be construed narrowly. See, Phillips, supra.
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; individuals who
make final technical recommendations; and individuals whose recommendations are an
inherent and recurring part of their positions. See, e.q., Reese /Gilliland, Opinion 05-
005.
In the instant matter, it is initially noted that Warden Campbell's statement that the
Sergeants do not have the authority to take or recommend official action of a non -
ministerial nature is not controlling with regard to the determination of the Sergeants'
status under the Ethics Act because: (1) said statement is in conflict with the submitted
fact that the Sergeants have the authority to make recommendations with regard to the
hiring and termination of Prison employees; and (2) whether the Sergeants have the
authority to take or recommend action of a non - ministerial nature is a conclusion of law
to be made in this advisory, based upon the submitted facts.
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 Sergeant, the necessary conclusion is that the
Sergeants are "public employees" and are subject to the financial reporting and
disclosure requirements of the Ethics Act.
An individual employed as a Sergeant 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, a Sergeant has the
authority to make recommendations with regard to the hiring and termination of Prison
employees. This authority in and of itself is sufficient to establish the Sergeants' status
as public employees subject to the Ethics Act. There is no question that in making
recommendations with regard to the hiring and termination of Prison employees, the
Sergeants' official job duties and responsibilities would have a significant economic
Mihalik, 07 -511
February 28, 2007
Page 6
impact upon the interests of affected applicants and employees as well as the interests
of taxpayers with regard to the expenditure of public funds relative to the Prison.
The foregoing activity would also meet the criteria for determining the Sergeants'
status as public employees under the Regulations of the State Ethics Commission,
specifically at 51 Pa. Code § 11.1, subparagraphs (i) and (ii).
It is noted that the Sergeants' authority to handle inmate and public funds, write
checks, and supervise the inmate work and work release programs would provide
additional support for the conclusion that the Sergeants are "public employees" and are
subject to the provisions of the Ethics Act.
Therefore, you are advised that the Sergeants are "public employees" subject to
the Ethics Act and the Regulations of the State Ethics Commission, and they are
therefore required to file Statements of Financial Interests pursuant to the Ethics Act.
Conclusion: Individuals employed as Sergeants with the Columbia County Prison
are "public employees" subject to the Public Official and Employee Ethics Act and the
Regulations of the State Ethics Commission. Accordingly, each Sergeant must file a
Statement of Financial Interests each year in which he or she holds the aforesaid
position and the year following termination of such service.
If the Sergeants have not already done so, they must file Statements of Financial
Interests 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 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,
Robin M. Hittie
Chief Counsel