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HomeMy WebLinkAbout88-593 KarmazonMc. Kristine Karmazon Edinboro University of PA McNerney Hall Edinboro, PA 16444 Dear Ms. Karmazon: STATE ETHICS COMMISSION! 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 29, 1988 88 - 593 Re: Statement of Financial Interests; Public Employee; Accountant I; Edinboro University This responds to your financial disclosure appeal which was received by the State Ethics Commission on May 23, 1988 and which will be treated as a request for advice. Issue: You ask whether in your capacity as an Accountant I with Edinboro University, hereinafter, the University, 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, the duties and responsibilities associated with your position as contained in your job description and the classification specifications for this position will be briefly outlined. Your duties and responsibilities, as set forth in these two documents are incorporated herein by reference. An employee in this position performs: Professional accounting work in the classification, analysis, and reporting of financial data. Analyzes financial transactions and prepares documented financial statements and reports to control and account for state funds and to analyze and project financial data. Work involves applying prescribed Ms. 7.ri ltine Karma- on June 29, 1988 Page 2 professional accounting principles and techniques to the treatment of transactions and other accounting operations. Employees perform a wide variety of professional accounting work, but some assignments require an emphasis upon a specific accounting specialty. Supervision may be exercised over a small clerical, office machine, or inmate staff. Work is performed within established policies and procedures. Supervision is received from a professional superior who provides advice and occasionally checks work in progress or upon completion for adherence to standards and procedures. Discussion: As set forth above, is clear. Specifically, are Accountant I serving with the "public employee." The State follows: the question to be answered here you, in your capacity as an University to be considered a Ethics Act defines that term as 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 rioruainisterial nature with regard to: contracting or procurement; administering or monitoring grants or subsidies; planning or zoning; inspecting, licensinc, 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. S402. The regulations of the State Ethics Commission similar Ms. Kristine Karmazon June 29, 1988 Page 3 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 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 -) whose recommendations or actions: ( -1 -) are an inherent and recurring part of his position; and ( -2 -) affect organizations other than his own organization. Kri$•i.ine Karma ;Jr June 23, 1988 Page 4 (ii) The term does not include , ,nc.iv:.dual- who are employed by the Commonwealth ar 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. (F) 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. (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. Ms. Kristine Karmazor, June 29, 1988 Page 5 (C) School teachers and clerk of the schools. 51 Pa. Code §1.1. The question you present under these provisions of the statute and the regulations of the Commission must be reviewed in light of your duties and obligations as described in you,: classification specifications, and the job description under which you operate. The 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, 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 this Commission 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, the conclusion is 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. It is clear that in your capacity as an Accountant I, you have the ability to recommend official action with respect to subparagraph II within the definition of "public employee" as set forth in the Ethics Act, 65 P.S. §402. Specifically, the classification specification of an Accountant I defines the employee as one who would analyze financial transactions and prepare financial statements and reports to control and account for state funds. The Accountant I position also provides tha' supervision may also be exercised over a small staff subject to review by a professional superior. Such activities would have an impact greater than a de minimus nature on the interests of any person. Further, as to your specific duties in your job description, it is noted that you assist in coordinating thn annual CPA audit of the University's financial statement. Such activity falls within the purview of subsection 4 regarding auditing under the statutory definition of public employee. Again, it must be noted that the determination of whether an individual is a public employee is made not only by reviewing the job description of the particular individual but also upon the job classification specification of the position. These activities fall within the definition of public employee as contained in the regulations of the Commission. 51 Pa. Code 1.1. Ms Kristine Karmazon June 29, 1988 Page 6 Under these circumstances and given your duties and responsibilities as outlined above, you are a "public employee" as that term is defined in the State Ethics Act. Conclusion: Based upon the above discussion, you are to be considered a "public employee" in your capacity as an Accountant I with the University. 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 2rior 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 ra :ain 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 former 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. Sincerely, Vincent J. Dopko, General Counsel