HomeMy WebLinkAbout09-514 BARONJudith Baron, Ph.D.
Professor
Department of Counseling and
Psychological Services
West Chester University
West Chester, PA 19383 -4120
Dear Ms. Baron:
ADVICE OF COUNSEL
February 27, 2009
09 -514
This responds to your letter dated January 14, 2009, received January 20, 2009,
by which you requested an advisory from the Pennsylvania State Ethics Commission.
Issue: Whether, in the former capacity as Chair of the Department of Counseling
and Psychological Services of West Chester University of the State System of Higher
Education, 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
Statements of Financial Interests.
Facts: You seek a determination as to whether, in your former capacity as Chair
of the Department of Counseling and Psychological Services ( "the Department ") of
West Chester University ( "the University ") of the State System of Higher Education, you
were a "public employee' subject to the Ethics Act and the Regulations of the State
Ethics Commission, and in particular, the requirements for filing Statements of Financial
Interests ( "SFIs "). See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1.
You have submitted the following facts.
You have been informed that you are required to file an SFI with the University in
your capacity as the former Chair of the Department. Your term as Chair of the
Department ended on May 1, 2008. You have submitted a copy of the job description
for your former position, which document is incorporated herein by reference.
Per the submitted job description, the Department Chair's authority and
responsibilities include, inter alia, the following:
• The establishment of procedures (in conjunction with the department faculty) for
selecting professional faculty and support staff /personnel;
• The recruitment (in conjunction with the department faculty), employment, and
supervision of the consulting psychiatrist;
Baron, 09 -514
February 27, 2009
Page 2
• The supervision of counseling and testing services;
• The provision of professional supervision and support to professional faculty,
psychology trainees, and supportive staff, and the supervision of the total
maintenance of confidential records, test data, manuals, and materials;
• The planning and administration of a financial budget; and
• The development of counseling services.
Job description, at 1.
You state that as Chair of the Department, you administered an annual budget of
approximately $5,000 per year. The budget covered the Department's costs for
telephone, mail and copier charges and supplies such as paper, stationery, pens, and
paper clips. Approximately $2,000 was added to the 2007 -2008 Department budget to
cover the costs of maintenance for scheduling software and the evaluation for
accreditation of the Department by the International Association of Counseling Centers.
In addition, there was a yearly "special funds" budget of approximately $1,000 to
$2,000, which covered purchases of a copier and printers and computers as needed.
You state that for any of the larger non - tangible orders, written approval was required
from both you and your supervisor, the Assistant Dean of Students.
You state that the Department's psychiatric consultants were paid from the
Health Center's budget, which was administered by the Assistant Dean of Students.
Bills for the psychiatric consultants' services were approved by you and submitted
monthly to the Assistant Dean of Students for her to approve and process. You state
that decisions about hiring and firing psychiatrists are made by a vote of all Department
faculty members.
In 2007, your proposal for "Fee and Hour Increase in Psychiatric Services" was
funded with a two year, New Funding Initiatives Award" from the University in the
amount of $30,000. The aforesaid award allowed the Department to increase the fee
and hours for its psychiatric consultants. You state that these grant funds are
administered by the Assistant Dean of Students.
You state that prior to agreeing to serve as Chair of the Department, you were
not informed that you would be required to file an SFI. You express your view that such
requirement would be an invasion of your privacy.
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.
It is further initially noted that, pursuant to the same aforesaid Sections of the
Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If
the activity in question has already occurred, the Commission may not issue an
opinion /advice but any person may then submit a signed and sworn complaint, which
will be investigated by the Commission if there are allegations of Ethics Act violations by
a person who is subject to the Ethics Act. To the extent that your inquiry relates to
conduct that has already occurred, such past conduct may not be addressed in the
Baron, 09 -514
February 27, 2009
Page 3
context of an advisory opinion. However, to the extent that your inquiry relates to future
conduct, your inquiry may, and shall, be addressed.
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 employee ":
(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.
Baron, 09 -514
February 27, 2009
Page 4
51 Pa. Code § 11.1.
(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 employees:
(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 employees:
(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.
Baron, 09 -514
February 27, 2009
Page 5
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.
The definition of "public employee" excludes individuals who are employed by the
Commonwealth or a political subdivision in teaching as distinguished from
administrative duties, but does not exclude individuals who engage in both teaching and
administrative duties that fall within the definition. Cowden, Opinion 06 -003.
State System of Higher Education officials and administrators, as well as faculty
members who go beyond teaching to perform the types of administrative duties
performed by persons subject to the Ethics Act, are public officials /public employees
subject to the Ethics Act. See, Cowden, supra; Richardson, Opinion 93 -006;
Richardson, Opinion 89 -017; O'Hara, Jr., Opinion 89 -008; Weiss, Opinion 85 -001.
In applying the objective test to the instant matter, the necessary conclusion is that
in your former position as Chair of the Department, you were a "public employee" subject
to the Ethics Act. As Chair of the Department, you had the ability to take or recommend
official action of a nonministerial nature with respect to subparagraphs (1) and (5) within
the definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. § 1102.
Specifically, per the job description, you had the authority to: recruit (in conjunction with
the department faculty), employ, and supervise the consulting psychiatrist; provide
professional supervision and support to professional faculty, psychology trainees, and
supportive staff, and supervise the total maintenance of confidential records, test data,
manuals, and materials; and plan and administer a financial budget. Such authority
would be sufficient to establish status as a public employee subject to the Ethics Act.
Further, your authority to approve larger non - tangible orders and bills for services
by the Department's psychiatric consultants would provide additional support for the
conclusion that in the former capacity as Chair of the Department, you were a "public
employee" subject to the Ethics Act.
The foregoing authority would also meet the criteria for determining your status
as a public employee under the Regulations of the State Ethics Commission, specifically
at 51 Pa. Code § 11.1 ( "public employee ")(i) -(ii).
Baron, 09 -514
February 27, 2009
Page 6
Therefore, you are advised that in your former capacity as Chair of the
Department, you were a "public employee" subject to the provisions of the Ethics Act,
and in particular, the requirements for filing SFIs. Cf., Cowden, supra. Pursuant to
Section 1104(a) of the Ethics Act, you are required to file a Statement of Financial
Interests for calendar year 2008 with the University by no later than May 1, 2009.
Conclusion: In your former capacity as Chair of the Department of Counseling and
Psychological Services of West Chester University of the State System of Higher
Education, you were a "public employee" subject to the Public Official and Employee
Ethics Act "Ethics Act "), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State
Ethics Commission, and in particular, the requirements for filing Statements of Financial
Interests. Pursuant to Section 1104(a) of the Ethics Act, you are required to file a
Statement of Financial Interests for calendar year 2008 with West Chester University by
no later than May 1, 2009.
Pursuant to Section 1107(11) of the Ethics Act, 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