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HomeMy WebLinkAbout88-597 TwardowskiMr. Bernard Twardowski Edinboro University of PA Personnel Office McNerney Hall Edinboro, PA 16444 Dear Twardowski: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 5, 1988 88 -597 Re: Statement of Financial Interests, Public Employee, Director of Student Development, Edinboro University This responds to your financial disclosure appeal received by the State Ethics Commission on May 23, 1988 which will be treated as a request of advice. Issue: You ask whether in your capacity as a Director of Student Development with the 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 outlined. Your duties and responsibilities are set forth in your job description which is incorporated herein by reference. An employee in this position: "1. Supervises the professional staff who are responsible for the Activities Office, the Intramural and Recreation Office, the Wellness Center, and the Student Government functions. There are four professional staff members, one professional secretary, one bookkeeper, two graduate assistants, one or Mr. Bernard Twlydowski July 5, 1988 Page 2 two interns, and approximately twenty student workers assigned to the Student Development Division. We are also responsible for the "Spectator," the University newspaper, which has a part -time faculty advisor to Student Development. 2. Develop budgets for each of the offices described above. 3. Provide exit interviews and counseling for students withdrawing from the University. 4. Plans and coordinates New Student Orientation activities. 5. Supervise the mailing and dissemination of all registration materials for students enrolled at the University. 6 Plan and coordinate Tuesday Night Series Program." Discussion: As set forth above, the question ':.o b -r: 'veered here is clear. Specifically, are you, in your capacity as a Director of Student Development 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 reccmmending 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 Mr. Bernard Twardowski July 5, 1988 Page 3 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. §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 (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 Mr. Bern' rd Twardowski July 5, 1388 Pere 4 ( -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 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. Mr. Bernard Twardowski July 5, 1988 Page 5 (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. The question you . present must be reviewed 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. 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 a Director of Student Developoment, you have the ability to recommend official action within the definition of "public employee" as set forth in the Ethics Act, 65 P.S. §402. Specifically, you develop budgets for each of the offices that are listed in your job description and since you develop the budget it is clear that your actions have an ecomonic impact of greater than a de minimus nature on the interests of other persons. Therefore since your position falls Mr. Bernard Twardowski July 5, 1988 Page 6 within Section ..5 of the definition of "public employee ", you are to be considered a public employee as that term is defined under the State Ethics Act. Conclusion: Based upon the above discussion, you are to be considered a "public employee" in your capacity as a Director of Student Development 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 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. 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 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