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Home My WebLink About09-572 SparacinoGeorge J. Gabriel Superintendent of Schools New Castle Area School District Office of the Superintendent 420 Fern Street New Castle, PA 16101 Dear Mr. Gabriel: ADVICE OF COUNSEL September 24, 2009 09 -572 This responds to your letter dated July 27, 2009, and the letter of Ms. Linda E. Sparacino ( "Ms. Sparacino ") dated August 10, 2009, requesting an advisory from the Pennsylvania State Ethics Commission. Issue: Whether Ms. Sparacino, in her capacity as a School Psychologist with the New Castle Area School District, 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 Superintendent of Schools for the New Castle Area School District (" chool District "), you have been authorized by Ms. Sparacino to request an advisory from the Pennsylvania State Ethics Commission on her behalf. You seek a determination as to whether Ms. Sparacino, in her capacity as a School Psychologist with the School District, is a "public employee" 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 Ms. Sparacino is required to file Statements of Financial Interests. You have submitted copies of the job description for the position of School Psychologist and an organization chart for the School District, both of which documents are incorporated herein by reference. Per the submitted Job Description, the duties and responsibilities of Ms. Sparacino as a School Psychologist include, in pertinent part, the following: • Dispersal of Special Service Referral forms to appropriate personnel; • Diagnostic study of the individual child, interpretation of findings, follow -up, and modification of treatment if needed; Gabriel, 09 -572 September 24, 2009 Page 2 • Recommending special placement of pupils; • Remedial instruction; • Pupil and parent counseling; • Periodic retesting of special education students in line with state policy; • Consulting in the development of school services conducive to mental health where they are lacking or inadequate; • Being available to the Director of Psychological Services when desired to discuss psychological implications of school policy; • Serving as resource person to committees as requested; • Serving as requested on committees dealing with new teaching procedures, human relations, pupil mental health, and health and welfare; • Participating in evaluation procedures for special classes; • Conferring with teachers who request help with problems they encounter in dealing with their pupils; • Acting as consultant in the development of testing programs and specific tests to meet needs of the system, a school, or an individual class; • Assisting in evaluating the results of tests and measurements; • Being available as a speaker or resource person to groups in the community interested in mental health needs; • Identifying significant problems for research and participating in research planning and design; and • Helping to evaluate the effectiveness of services provided by the school (especially psychological). Job Description, at 1 -4. You state that Ms. Sparacino makes no decisions regarding the commitment of the School District to requisition, allocate, or distribute monies for special education services. Rather, such decisions are made by the Special Programs Supervisor, who is Ms. Sparacino's immediate supervisor. You state that Ms. Sparacino has no administrative or supervisory duties in her role as a School Psychologist. You state that Ms. Sparacino's primary responsibilities involve conducting psycho - educational evaluations in which students' present levels of performance are assessed, their educational needs are identified, and their eligibility for special education is ascertained. You further state that the IEP team, which is chaired by the Special Programs Supervisor, makes the final determination of where students are placed and what related services are necessary. 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 Gabriel, 09 -572 September 24, 2009 Page 3 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 (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. Gabriel, 09 -572 September 24, 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. (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 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. Gabriel, 09 -572 September 24, 2009 Page 5 In addressing your inquiry, it is initially noted that the duties of a School Psychologist may vary, and that depending upon the duties /authority of a given position, a School Psychologist may be considered a `public employee" subject to the Ethics Act. See, Friedman, Advice 01 -510. In applying the definition of "public employee" and the related regulatory criteria to the submitted facts as to the duties of Ms. Sparacino's position, the necessary conclusion is that in her capacity as a School Psychologist with the School District, Ms. Sparacino is not to be considered a "public employee as that term is defined in the Ethics Act. Based upon an objective review of the submitted Job Description, Ms. Sparacino is not responsible for taking or recommending official action of a non - ministerial nature with regard to any of the five categories set forth in the Ethics Act's definition of the term "public employee." Thus, Ms. Sparacino is not subject to the disclosure requirements of the Ethics Act, and she is not required to file Statements of Financial Interests. The only provision of the Ethics Act that would apply to Ms. Sparacino is Section 1103(b , which applies to everyone. For your information, Sections 1103(b) and 1103(c of the Ethics Act provide in part that no person shall offer or give to a public official public employee anything of monetary value and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: Based upon the submitted facts, Ms. Linda E. Sparacino ( "Ms. Sparacino "), in her capacity as a School Psychologist with the New Castle Area School District, is not to be considered a "public employee as that term is defined by the Public Official and Employee Ethics Act (`Ethics Act "), 65 Pa.C.S. § 1101 et seq. Accordingly, in that capacity, Ms. Sparacino is not sublect to the disclosure requirements of the Ethics Act, and she is not required to file Statements of Financial Interests. Section 1103(b) of the Ethics Act applies to everyone. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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, Gabriel, 09 -572 September 24, 2009 Page 6 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