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ROBERT J. PHILLIPS v. COMMONWEALTH PENNSYLVANIA (01/11/84)

decided: January 11, 1984.

ROBERT J. PHILLIPS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE ETHICS COMMISSION, RESPONDENT



Appeal from the Order of the State Ethics Commission in the case of Re: DPW Claim Settlement Agent; Applicability of Act 170, dated June 18, 1982, Adjudication No. 82-008.

COUNSEL

David P. Brown, III, Brown and Hepburn, for petitioner.

Sandra S. Christianson, General Counsel, for respondents.

President Judge Crumlish, Jr. and Judges Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 79 Pa. Commw. Page 492]

Robert J. Phillips (Petitioner) petitions for review of an order of the State Ethics Commission (Commission) deeming the Petitioner in his position as a Claim Settlement Agent I (CSA I) for the Department of Public Welfare to be a "public employee" pursuant to the provisions of Section 2 of the Ethics Act, Act of October 4, 1978, P.L. 883, 65 P.S. § 402 and the regulations of the Commission at 51 Pa. Code § 1.1.

[ 79 Pa. Commw. Page 493]

In reviewing a Commission determination, our scope of review is limited to determining whether constitutional rights have been violated, an error of law has been committed or the necessary factual findings are not supported by substantial evidence. Fusaro v. Pennsylvania Public Utility Commission, 34 Pa. Commonwealth Ct. 14, 382 A.2d 794 (1978).

The Petitioner contends that the Commission erred in utilizing an objective test to determine if the duties and responsibilities of his position were such as to bring him within the statutory and regulatory definition of a public employee and that even if such a standard is proper, his job description does not confer upon a CSA I the degree of discretion and the proximity to the final decision making level necessary to meet the definition. He also contends that the Commission's regulations compel the conclusion that he is not a public employee because persons in specified positions which arguably have more discretion than his are generally not considered to be public employees thereunder. Finally, he contends that a prior ruling by the Commission that persons in other positions remote from the final decision making level are not public employees requires the same conclusion here.

Section 2 of the Ethics Act provides in pertinent part:

"Public Employee." Any individual employed by the Commonwealth or a subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to:

(4) inspecting, licensing, regulating or auditing ...


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