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HomeMy WebLinkAbout89-554 CohenSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 15, 1989 Neil I. Cohen, Director Physical Development and Athletics Community College and Allegheny County Allegheny Campus 808 Ridge Avenue Pittsburgh, PA 15212 Re: Statement of Financial Interest, Public Employee, Director of Physical Development and Athletics, Community College Dear Mr. Cohen: 89 -554 This responds to your letters of May 23 and 30, 1989, in which you requested advice from the State Ethics Commission. Issue: You ask whether in your capacity as a Director of Physical Development and Athletics with the Allegheny County Community College, hereinafter, the College, you are to be considered a "public employee" as that term is defined in the Ethics Act, and therefore, whether you are required to file a Statement of Financial Interests pursuant to the Ethics Act. Facts: You question whether your activities and functions fall within the purview of the definition of "public employee" as that phrase is defined in the State Ethics Act and the regulations of this Commission. In order to review the question presented, we will briefly outline the duties and responsibilities associated with your position as contained in your job description. Your duties and responsibilities, as set forth in that documents are set forth as follows: (1) Develops, administers, and evaluates the athletic program on Campus and promote its value to students. (2) Assists in selection of physical education staff. (3) Recommends an annual budget for campus athletic programs within College -set limits and is responsible for financial affairs relating to athletic programs. (4) Schedules athletic programs and facilities and Neil I. Cohen, Director June 15, 1989 Page 2 (5) (6) ( ( coordinates the schedule of athletic program with that of the Student Activities Director and other appropriate administrators. Schedules outside uses of the gymnasium facility. Recommends, purchases, maintains, and stores athletic equipment. Determines needs and responsibilities to those groups using the facility. (8) Prepares reports as requested describing athletic activities and programs and publicizes the athletic program to the Campus and public. Performs within the guidelines as established in the Management by Objectives documents attached. After noting that you are the Director of Physical Development and Athletics at Community College of Allegheny County, you indicate that you do not believe that you are required to file the Statement of Financial Interests based upon your comparison to similar positions state -wide as well as other similar and higher positions at the Allegheny Campus. You indicate that during the Spring 1987 term you were told that you must fill out the form but you were on sabbatical and could not respond given the time factor involved so you filed under protest. You then state that you have met with the auditors from the State Auditor General's office who expressed surprised that you were required to file. In your supplemental letter of May 30, you assert that your position with the College no way fits the categories established as to who must file. After asserting that certain individuals at the institution have harassed you, you conclude that nothing you could report in the Statement of Financial Interests would place you in an unethical position. You indicate that you are pursuing this as a matter of principle and that you do not believe that the institution has the right to arbitrarily force you into compliance. You conclude by requesting an opinion as to whether you are a public employee required to file the Statement of Financial Interests. Discussion: As set forth above, the question to be answered here is clear. Specifically, are you, in your capacity as a Director of Physical Development and Athletics, hereinafter Director, serving with the College to be considered a "public employee." The State Ethics Act defines that term as follows: Section 2. Definitions Neil I. Cohen, Director June 15, 1989 Page 3 "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: contracting or procurement; administering or monitoring grants or subsidies; planning or zoning; inspecting, licensing, regulating or auditing any person; or any other activity where the official action has an economic impact of greater than a de minimus nature on the interests of any person. 65 P.S. §402. "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. 5402. The regulations of the State Ethics Commission similarly define the term public employee as above and also set forth that the term includes any individual: (B) who meets 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 Neil I. Cohen, Director June 15, 1989 Page 4 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 final technical recommendations; and ( -b -) actions: whose recommendations or ( -1 -) are an inherent and recurring part of his position; and ( -2 -) affect organizations other than his own organization. (ii) 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. (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. (B) Commonwealth bureau directors, division chiefs, or heads of equivalent organization elements and other governmental body department heads. (C) Staff attorneys engaged in Neil I. Cohen, Director June 15, 1989 Page 5 representing the department, agency, or other governmental bodies before the public. (D) 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. (E) Court administrators, assistants for fiscal affairs, and deputies for the minor judiciary. (F) School business managers and principals. (iv) Persons in the positions listed below are generally not considered public employees. (A) City clerks, other clerical staff, road masters, secretaries, police officers, welfare case workers, maintenance workers, construction workers, detectives, equipment operators, and recreation directors. (B) Law clerks, court criers, court reporters, probation officers, security guards, and writ servers. (C) School teachers and clerk of the schools. 51 Pa. Code X1.1. We must review the question you present under these provisions of the statute and the regulations of the Commission in light of your duties and obligations as described in the job description under which you operate. 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, Opinion 83 -001; Phillips, Opinion 82 -008, affirmed on appeal, 79 Pa. Cmwlth. 491, Neil I. Cohen, Director June 15, 1989 Page 6 470 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 your job functions and the information available to us, we must conclude that while you serve in this capacity, you are a "public employee" subject to the financial reporting and disclosure requirements of the State Ethics Act. Further detail on our analysis follows. It is noted that you work independently, assist in the selection of Physical Education staff and recommend an annual budget. In addition, you are responsible for financial affairs relating to the athletic program as well as recommending and purchasing athletic equipment; it is clear that such activities have an economic impact of greater than a de minimus nature on the interest of any other person. These activities fall within the statutory definition of "public employee" under the Ethics Act. Additionally, in your capacity as Director, such activities fall within the purview of (B)(I) and (II) of the Regulations 51 Pa. Code S1.1. See also McDonald, Advice 88 -594 where it was determined that an athletic director was a "public employee" required to file the Statement of Financial Interest. Under the circumstances and given your duties and responsibilities as outline above, you are a "public employee" as the term is defined in the State Ethics Act. Conclusion: Based upon the above discussion, we conclude that you are to be considered a "public employee" in your capacity of Director of Physical Development and Athletics with the College. Accordingly, you must file a Statement of Financial Interests for each year in which you hold the position outlined above and for the year following your termination of this service. If you have not already done so, a Statement of Financial Interests must be filed within 15 days of this Advice. This Statement of Financial Interests would report information of the prior calendar year. Please file the original of such a Statement with this Commission to insure compliance with this Advice, provide the yellow copy to your Personnel Office 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 Neil I. Cohen, Director June 15, 1989 Page 7 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. such. This letter is a public record and will be made available as 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. Sincerely, Vincent . Dopko, General Counsel