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HomeMy WebLinkAbout84-559 SullivanMr. Cornelius G. Sullivan, Esquire Court of Common Pleas 38th Judicial District Montgomery County Courthouse Norristown, PA 19404 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 April 26, 1984 ADVICE OF COUNSEL 84 -559 RE: Court Administrator, Deputy Court Administrator; Statement of Financial Interest; Coverage Dear Mr. Sullivan: This responds to your letters of March 22, 1984 and March 29, 1984, in which you, on behalf of yourself as Court Administrator, and on behalf of Marvin J. Lewis, Deputy Court Administrator, requested advice from the State Ethics Commission. Issue: You ask whether you, as Court Administrator and Mr. Marvin J. Lewis as Deputy Court Administrator, are to be considered "public employees" for purposes of filing a Statement of Financial Interest under the State Ethics Act. Facts: You are the Court Administrator to the Court of Common Pleas of Montgomery County and you are also an attorney. Marvin J. Lewis, Esquire, is the Deputy Court Administrator, and for purposes of this request, you state that the duties described are the same for both you and Mr. Lewis in that your activities involve court operations. You indicate that your primary function is the scheduling of matters before several judges of the Court of Common Pleas hereinafter, the Court. Toward that end, you prepare civil trial lists, argument court lists, family court lists, as well as a variety of other miscellaneous matters and hearings. In addition, you are responsible for operation of the arbitration system as mandated by State statute. In carrying out your functions, you are responsible for a variety of other duties, some routine and some based on special assignment. One of your functions is the promulgation of rules of court and policy setting forth administrative procedures. Another of your functions is the preparation of statistics and special reports for submission to the Supreme Court and the judges of the Court. Further, you indicate that it is necessary for you to annually make budget requests for material and equipment as well as to secure or recommend hiring and supervise the staff of 15 employees. You admit that discretionary duties are involved with your office, however, you state that your functions are controlled by rules and policies published and applicable unless the Court, by individual action, waives such requirements. Mr. Cornelius G. Sullivan, Esquire April 26, 1984 Page 2 You indicate that, in light of your duties and functions, you do not believe that you and Mr. Lewis are "public employees" as that term is defined in Section 402 of the Ethics Act. You, therefore, do not believe that you, and Mr. Lewis should be subject to the financial disclosure requirements of the Ethics Act, and you have requested the Ethics Commission to rule on this question. Discussion: Initially, the Ethics Commission notes that, if a statutory entity, its jurisdiction, and its power are strictly limited to the authority granted it in 65 P.S. 401 et seq. Thus, it has no authority to interpret and /or enforce the provisions of other codes, for example, the Judiciary Code, and this Advice should not be construed as a determination under Commonwealth laws, codes, or regulations other than the Ethic? Act. The applicable provisions of the Ethics Act are contained in 65 P.S. 402, which provides: "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 minimus nature on the interests of any person. "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. 65 P.S. 402. The question you present must be reviewed and answered in light of your duties and obligations as both duties are described in your request for advice. Such inquiries focus on the job itself and not necessarily on the individual incumbent in the position or the variable functions or the manner in which a particular individual occupying a position may carry out those functions. See McClure, 83 -001; Phillips, 82 -008 affirmed on appeal, Pa. Cmwlth. , 470 A.2d 659 (1984); and Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa:7982). Reviewing both your job function and Mr. Lewis' job function as well as your particular positions, objectively, we are lead to the conclusion that both of you are "public employees" subject to the filing requirements of the Ethics Act. Mr. Cornelius G. Sullivan, Esquire April 26, 1984 Page 3 The fact is considered and rendering this decision include the fact that one of your functions is the promulgation of rules of court and policies setting forth administrative procedures. Another element includes the fact that you are responsible for preparing statistics and special reports, that you are responsible for making budget requests for material and equipment, and that you are responsible for securing and superivising a staff of 15 employees. Such duties are discretionary, are not merely clerical., and are sufficient to bring you within the definition of "public employee" above. Further, regulations of the State Ethics Commission provide, at Section 1.1(iii)(E), that court administrators are generally to be considered to be public employees. Also, the Commonwealth Court ruling in Phillips, supra at p. 661, directs us to construe coverage by the Ethics Act broadly, rather than narrowly and that exclusions from the Act's coverage should, conversely, be narrowly construed. Based upon this analysis, we conclude that both you and Mr. Lewis are "public employees" subject to the filing requirements of the Ethics Act. Conclusion: Both you and Mr. Lewis are to be considered "public employees" subject to the provisions of the Ethics Act, and you are both required to file a Statement of Financial Interests by May 1 of each year in which one serves as a "public employee" and for the year following the termination of such public service. Forms are enclosed for your use. You should file the original with your personnel office or administrative office, the yellow copy with our office in order to insure compliance with this Advice, and retain the green copy for your records. Pursuant to Section 7(9)(ii), this 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, proyiding the requestor 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. CW /rdp Enclosures Sincerely, 'Sandra S. Chris ianson General Counsel