HomeMy WebLinkAbout88-594 McDonaldM1 James K. McDonald
Athletic Director
Edinboro University of PA
McComb Fieldhouse
Edinboro, PA 16444
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 - 594
Re: Statement of Financial Interest; Public Employee; Athletic
Director; Edinboro University
Dear Mr. McDonald:
This responds to your financial disclosure appeal received
on May 23, 1988 by the State Ethics Commission which will be
treated as a request for advice.
Issue: You ask whether in your capacity as a Athletic Director
with the University of Edinboro, hereinafter, 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
.Zile 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 is required to:
1. Develop, foster and promote the intercollegiate
athletic program at Edinboro University.
. James K. McD ,Jr. 11
.1 .� 29, 198P
Page
2. Administer the athletic program of Edinboro University
to include scheduling, determining eligibility of
athletes, arranging for officials,etc.
3. Serve as liaison between the various constituencies of
Edinboro University and its athletic programs.
4. Direct those funds raising activities
and related groups which are intended
university's athletic program.
5. Supervise the facilities used to suppo
program.
of the university
to support the
rt the athletic
. 6. Assist in the development of the budget of the athletic
unit of the university and authorize expenditures front
the approved budget.
7 Recommend the appointment of coaches for the various
sports to the President of the university through the
'rice President of Administration and Institutional
Advancement.
.►. Supervise the persons appointed as head coaches in the
university athletic unit.
9, Othr specific duties as assigned by management.
10. Stress compliance by all staff members, particularly
the head coaches, with the rules and regulations
governing the operation of the program as established
by the NCAA, PSAC and any other organization to which
the program may have specific or indirectly related
responsibilities.
11. Act as an official spokesperson for the department,
interpreting departmental, institutional and national
athletic associations' rules, regulations, policies and
procedures.
12. Provide for the selection, organization, and
supervision of the staff, and delegate specific
responsibilities to assure efficient and productive
operation of all administrative, business, fiscal and
athletic activities of intercollegiate athletics.
Mr. James K. McDonald
June 29, 1988
Page 3
Discussion: As set forth above, the question to be answered here
is clear. Specifically, are you, in your capacity as an Athletic
Director serving with the University 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.
65 P.S. S402.
"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
-efine 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;
Kr. Jams t T, . MCDonalL
June 29 , 1988
Page 4
( -b -) the L:nm idiate supervisor
of a perdun who norms -ly 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 -)
final decisions;
( -2 -) has the authority to
forward or stop recommendations
rom being sent to the person or
fody 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:
( -1 -)
recurring
has the authority to make
whose recommendations or
are an inherent and
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.
Mr. Jame'', K. McDor :'. '
June 29, 1988
Page 5
(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.
(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.
Mr. James X. McDonali ;
June 29, 1938
Page 6
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 job description under
which you operate must be reviewed. 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,
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. Further detail .
on our analysis follows.
Of major import is the fact that you direct fund raising
activities, assist in the development of the budget, authorize
expenditures from the budget, recommend the appointment of
coaches and supervise the persons appointed as head coaches.
Clearly these activities have an economic impact of greater than
a de minimus nature on the interests of any person. These
activities fall within the statutory definition of "public
employee" under the Ethics Act.
Additionally, in your capacity as an Athletic Director, you
have the ability to recommend official action with respect to
subparagraphs I and II within the definition of "public employee"
as set forth in the Ethics Act, 65 P.S. §402. 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, 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 Athletic
Director with the University. Accordingly, you must file a
Mr. James K. McDonald
June 29, 1988
Page 7
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 th_;
Advice, provide the yellow copy to your Personnel Office a•'
retain the green copy for your records.
Pursuant to Section 7(9)(ii), this Advice is a comp.et-t
defense in any enforcement proceeding initiated by the
Commission, and evidence of good faith conduct in any other c2.v;.l
or criminal proceeding, providing the requestor has disclo'e {t
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 hail any
reason to challenge same, you may request that the full
Commission review this Advice. A personal appearance befora th.
Commission will be scheduled and a former Opinion from th"
Commission will be issued. Any such appeal must be made, i:
writing, to the Commission within 15 days of service of th9_
Advice pursuant to 51 Pa. Code 52.12.
Sincerely,
Vincent J. Dopko,
General Counsel