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HomeMy WebLinkAbout87-563 JenkinsMs. Cecelia A. Jenkins Allegheny Campus Division of Educational Services 808 Ridge Avenue Pittsburgh, PA 15212 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 May 14, 1987 ADVICE OF COUNSEL Re: Assistant Dean, Community College, Public Employee Dear Ms. Jenkins: 87 -563 This responds to your letter of April 30, 1987, in which you requested advice from the State Ethics Commission. Issue: You ask whether in your capacity as a Assistant Dean 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 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 the planning, development, supervision and evaluation of the programs and departments which constitute the division of educational services. In this respect, you are responsible for submitting recommendations for all full -time and part -time employees in your area relating to matters of hiring, promotion, tenure, sabbatical leave, non - renewals and related issues. You are also responsible for preparation and implementation of the division budget. You are responsible for submitting a division annual report and the the planning, developing or implementing of other duties as may be assigned by the dean of instruction and /or the executive dean. In addition to the forgoing, you are expected, in your position, to maximize computing experiences and capacity for both students and faculty by providing state of the art computer facilities. Ms. Cecelia A. Jenkins May 14, 1987 Page 2 In this respect, you are responsible for maintaining appropriate audio visual, television, and graphic art facilities for use by students, faculty and staff and for coordinating support structures for Allegheny campus computer operations. In relation to the department budget, you are responsible for reviewing, monitoring, providing accountability for annual departmental operational budgets and capital requests by implementing efficient budgetary actions and implementing actions consistent with the dean of instruction's financial policies and procedures. You serve as chair of the capital budget sub - committee academic division. Discussion: As set forth above, the question to be answered here is clear. Specifically, are you, in your capacity as a assistant dean serving with the College to be considered a "public employee." The State Ethics Act defines that term 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. 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 Ms. Cecelia A. Jenkins May 14, 1987 Page 3 (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 ( -2 -) affect organizations other than his own organization. Ms. Cecelia A. Jenkins May 14, 1987 Page 4 (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 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. 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 your position and objective statements, the classification specifications, and 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, 83 -001; Philli s, 82 -008, affirmed on appeal, 79 Pa. Cmwlth. 491, 4T0 A.2d 659 (1 ; and Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982). Ms. Cecelia A. Jenkins May 14, 1987 Page 5 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 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 assistant dean, 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 involved in substantial operations of the department's budgeting matters as well as the overall operation of the department including recommending and acquisition of state of the art computing and other technological equipment. 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. This Commission has previously reviewed the issue of whether certain employees of community colleges would be covered employees within the purview of the State Ethics Act. In Newton, 80 -025 it was determined that officials and employees of a community college who perform administrative functions such as the type set forth in your letter of request and the documents attached thereto, would be employees covered by the State Ethics Act. Conclusion: Based upon the above discussion, we conclude that you are tote considered a "public employee" in your capacity as a assistant dean with the Allegheny County Community 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 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 your Personnel Office and retain the green copy for your records. Ms. Cecelia A. Jenkins May 14, 1987 Page 6 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. Si onn Acti i" tino General Counsel