HomeMy WebLinkAbout87-560 BartlebaughMr. Ronald L. Bartlebaugh
Field Office Manager
State Employees Retirement System
Senaca, PA 16346
STATE ETHICS COMMISSP'
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
May 11, 1987
ADVICE OF COUNSEL
87 -560
Re: Field Office Manager, State Employees Retirement System, Public Employee
Dear Mr. Bartlebaugh:
This responds to your letter of April 29, 1987, in which you requested
advice from the State Ethics Commission.
Issue: You ask whether in your capacity as a field office manager with the
State Employees Retirement System, hereinafter, SERS, 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 and the classification specifications for this position. Your
duties and responsibilities, as set forth in these two documents are
incorporated herein by reference. An employee in this position is responsible
for selecting all office personnel. This function requires knowledge of
personnel management system and civil service selection processes. You are
responsible for performing personnel evaluations for all clerical and
counselor staff. Inherent in this process is the establishment of performance
objectives, monitoring of activities through estimate check and audits, and
counseling staff members on a semi - annual basis or continuously if needed. In
addition to the foregoing, you are responsible for monitoring the financial
position of the office to insure its fiscal integrity. In this respect, you
are responsible for preparing an annual statement of projected expenses for
the next fiscal year. You also ensure that group pre - retirement counseling
programs are conducted monthly and you assign responsible individuals to
participate in various programs. You also review the estimates and counseling
of individuals on a random basis to ensure that proper and complete counseling
of retirees is occuring. You monitor the survivor assistance programs and
ensure that proper individuals are contacted and that all necessary documents
are timely processed.
Mr. Ronald L. Bartlebaugh
May 11, 1987
Pe 7e 2
Discussion: As set forth above, the question ' o hL answered here is clear.
Specifically, are you, in your capacity as a field office manaser serving with
the SERS to be considered a "public employee." The .,tate Ethics Act defines
that term as follows:
Section 2. Definitions.
"Public employee." Any individual emp oyed 4 the
Commonwealth or a political subdivision who is responsible
for taking or recommending official action of a
ncnministerial 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 actior
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 regulations of the State Ethics Commission similarly define the tern
public: employee as above and also set forth that the term includes any
indiv ?dual:
(f3) who meets the criteria of either subclause
(I) or (II):
(I) The individual is:
( -a -) a person who normally
vrforms 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
Mr. Ronal a I.. B-.rtl ebaugh
May 11, 1987
Page 3
superv:: oi' of Eny highest
level field office,
(II) The individual is a person:
( -3 -) 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
( -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.
(B) Commonwealth bureau directors, division
chiefs, or heads of equivalent organization
elerrents'and other governmental body department
heads.
(C) Staff attorneys engaged in representing
the department, agency, or other governmental
bodies before the public.
Mr,, Ronald L, Bartlebaugh
May 11, 1987
Page 4
(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.
(E) Court administrators, assistants for
fiscal affairs, and deputies for the minor
judiciary.
(F) School business managers and principals;
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 classification specifications, and the job
description under which you operate. Our inquiry necessarily focuses cn 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;
Phillips, 82 -008, affirmed on appeal, 79 Pa. Cmwlth. 491, 470 A.2d 659 (1984);
ana Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982).
Also, in reviewing your question, the Commonwealth Court in ics ruling in
Phil li is, 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 are led to the conclusion 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 clear that in your capacity as a field office manager, you have 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, you are responsible for monitoring various aspects of
the retirement program. You monitor the survivor assistance programs and
ensure that individuals are contacted regarding the benefits under this
program. In addition to the foregoing, you are responsible for monitoring the
financial position of the office to ensure its fiscal integrity. These two
factors clearly have an economic impact of more than a deminimus effect. 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 your 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.
Mr. Ronald L. Bartlebaugh
May 11, 1937
Page 5
Conclusion: Based upo ;:he above discussion ,oe conCude that you are to be
considered a "public emplt %°eo" in your capacity as a field office manager with
the SERS. 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 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 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 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 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.
John Contino
Acting General Counsel