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Home My WebLink About12-535 Crawford ADVICE OF COUNSEL May 7, 2012 Tom Crawford 259 Hawthorne Drive Lancaster, PA 17603 12-535 Dear Mr. Crawford: This responds to your letters dated March 12, 2012, and March 19, 2012, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether, as a Web Designer/Content Manager with the School District of Lancaster, you would be considered 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, 51 Pa. Code § 11.1 et seq., and particularly, the requirements for filing Statements of Financial Interests. Facts: You seek a determination as to whether, in your capacity as a Web Designer/Content Manager with the School District of Lancaster (“School District”), you are 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 you are required to file Statements of Financial Interests. You have submitted a copy of a School District job description for the position of Web Designer/Content Manager, which document is incorporated herein by reference. The School District job description for the position of Web Designer/Content Manager provides, in pertinent part, as follows: Title: Web Designer/Content Manager .... REPORTS TO: IT Manager SUPERVISES: None JOB GOAL: The Web Designer/Content Manager is responsible for the design, implementation, maintenance and content of the School District website. This position must incorporate student and parent systems, financial systems and the corporate Intranet into the newly designed website. Crawford, 12-535 May 7, 2012 Page 2 ESSENTIAL FUNCTIONS: 1. Must actively participate not only in application development, but also actively participate in all phases of the application development life cycle from requirements gathering and clarification to coding, documentation, testing and implementation. 2. Must maintain content of the District website. 3. Possess excellent reading comprehension to successfully translate extremely complex business logic into functional web-based user interfaces for use by internal and external customers. 4. Responsible for the development, testing and maintenance of user interface and backend processes for District website and corresponding software systems. 5. Participate in long term and short term software systems planning. 6. Ability to think creatively and suggest alternative website design/development solutions. 7. Maintain documentation, operating procedures, and service records relating to District website and associated software systems. 8. Attend classes, seminars, conferences and review professional literature to enhance knowledge of trends and developments related to website and software development. MARGINAL FUNCTIONS: 1. Install PC and systems software. 2. Educate other technology staff in software systems. 3. Other duties as assigned by IT Manager. …. School District of Lancaster Job Description, Web Designer/Content Manager, at 1. 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; Crawford, 12-535 May 7, 2012 Page 3 (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. (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 employes: (A) Executive and special directors or assistants reporting directly to the agency head or governing body. Crawford, 12-535 May 7, 2012 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. In applying the definition of "public employee" and the related regulatory criteria to the functions of your position, the necessary conclusion is that in your capacity as a Web Designer/Content Manager with the School District, you are 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, you are 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, based upon the submitted facts, you are not subject to the disclosure requirements of the Ethics Act, and you are not required to file Statements of Financial Interests. The only provision of the Ethics Act that applies to you 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 Crawford, 12-535 May 7, 2012 Page 5 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, in your capacity as a Web Designer/Content Manager with the School District of Lancaster, you are 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, you are not subject to the disclosure requirements of the Ethics Act, and you are 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, 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