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Home My WebLink About85-564 GaudioMailing Address State Ethics Commission 308 Finance Building P. 0. Box 11470 Harrisburg, Pa. 17108 -1470 August 1, 1985 ADVICE OF COUNSEL Albert Gaudio, Esquire 85 - 564 566 Donner Avenue Monessen, PA 15062 Re: Administrative Officer, Private Industry Council, Public Employee Dear Mr. Gaudio: This responds to your letter of June 13, 1985, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Chief Administrative Officer of the Private Industry Council of Westmoreland /Fayette County, hereinafter, the PIC, is considered a "public employee" as that term is defined in the Ethics Act, and therefore, whether this person is required to file a Statement of Financial Interests pursuant to the Ethics Act. Facts: In order to review the question presented, we will briefly outline the duties and responsibilities associated with the position involved herein as contained in the job description that you have provided regarding this position. The employee here in question is the Chief Administrative Officer of the Private Industry Council for Westmoreland /Fayette Counties. The PIC was established under the Job Training Partnership Act. The PIC is the vehicle through which private sector interests are represented in a "partnership" with local governments in order to deliver employment and training services within the county. These services are funded by federal appropriations funneled to local areas through the various states. The position of Chief Administrative Officer in a highly responsible office involving the overall administrative operation, direction, planning, and management of a complex employment and job training program. The employee in this position is responsible for planning, organizing and directing the daily operation of an employment and job training program; enhancing job State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Albert Gaudio, Esq. August 2, 1985 Page 2 opportunities for individuals through economic development programs; and to seek and obtain funds to improve the overall employment picture of a two County region. Work involves immediate and long -range planning and scheduling for day -to -day operations through interpretation and implementation of Federal and State JTPA and other applicable regulations and requirements. Work includes establishing internal policies and procedures consonant with Federal and State requirements and implementing these policies through a supporting staff. Work involves extensive Community, State and Federal Agency contacts and the coordination of the operating JTPA and other economic development and training programs with community needs and resources. Work also includes the evaluation of program and staff effectiveness. Work is performed independently, subject to review by the Board of the PIC and Federal and State Officials to insure compliance with all program regulations. This person is repsonsible for the total operation of JTPA Grants which total millions of dollars. This person also develops and recommends administrative policies, procedures and regulations and participates in the developmet of policy with the Council. Discussion: As set forth above, the question to be answered here is clear. Specifically, are you, in your capacity as a Chief Administrative serving with the PIC to be considered a "public employee" as those terms are defined in the State Ethics Act. The Act provides as follows: Section 2. 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 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. Albert Gaudio, Esq. August 2, 1985 Page 3 The Regulations of the Commission similarily define public employee as above and also set forth that this term includes persons: (B) who meet the criteria of either subclause (I) or (II): (I) The individual is: ( -a -) a person who normally performs his responsibility in the field without on -site supervision; ( -b -) the immediate supervisor of a person who normally performs his responsibility in the field without on -site supervision; or ( -c -) the supervisor of any highest level field office. (II) The individual is a person: ( -a -) who: ( -1 -) has the authority to make final decisions; ( -2 -) has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions; ( -3 -) prepares or supervises the preparation of final recommendations; or ( -4 -) makes the final technical recommendations; and ( -b -) whose recommendations or actions: ( -1 -) are an inherent and recurring part of his position; and Albert Gaudio, Esq. August 2, 1985 Page 4 ( -2 -) affect organizations other than his own organization. • (iii) Persons in the positions listed below are generally considered public employees. (A) Executive and special directors or assistants reporting directly to the agency head or governing body. (0) Solicitors, engineers, managers, and secretary- treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, housing and building inspectors, sewer enforcement officers, and zoning officers in all governmental bodies. 51 Pa. Code § 1.1 We must review the question you present under these provisions of the statute and the regulations of the Commission in light of the duties and obligations as described in your request for advice, and the job description under which this person operates. Our inquiry necessarily focuses on the job itself and not on the individual incumbent in the position, the variable functions of the position, or the manner in which a particular individual occupying a position may carry out those functions. See McClure, 83 -001; Philli s, 82 -008, affirmed on appeal, Pa. Cmwlth. , 470 A.2d 659 1984 ; and Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982). Also, in reviewing your question, the Commonwealth Court in its ruling in Phillips, supra, at page 661, directs us to construe coverage of the Ethics Act broadly, rather than narrowly, and conversely, directs that exclusions from the Ethics Act should be narrowly construed. Based upon this directive and reviewing the definition of "public employee" in the statute and the regulations and opinions of this Commission, in light of the specified job functions and the information available to us, we are led to the conclusion that while serving in this capacity, this person is a "public employee" subject to the financial reporting and disclosure requirements of the State Ethics Act. It is clear that as a Chief Administrative Officer, this person has the ability to recommend official action with respect to subparagraph 2 and 5 within the definition of "public employee" as set forth in the Ethics Act, 65 P.S. 402. Specifically, the job description indicates that this person is Albert Gaudio, Esq. August 2, 1985 Page 5 responsible for administering and managing millions of dollars in federal grants and is responsible for developing and recommending policy procedures and regulations regarding the PIC's activities. See e.g.; Newton /Shoemaker, 80 -025. These activities fall within the definition of public employee as contained in the regulations of the Commission 51 Pa. Code §1.1. Under these circumstances and given these duties and responsibilities as outlined above, we must conclude that you are a "public employee" as that term is defined in the State Ethics Act. Conclusion: Based upon the above discussion, we conclude that the Chief Administrative Officer of the Private Industry Council of Westmoreland /Fayette Counties is a public official as defined in the State Ethics Act. If he has not already done so, a Statement of Finanical Interests must be filed within 15 days of this Advice. This Statement of Financial Interests would report information of the prior calendar year. Please have the original of such Statement field with this Commission to insure compliance with this Advice, provide the yellow copy to his Personnel Office and he may retain the green copy for his 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, providing 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 full 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. JJC /sfb Si ncer ohn J. t in Gener. ounsel