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HomeMy WebLinkAbout88-609 JonesDear Mr. Jones: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 12, 1988 Mr. Malcolm C. Jones 88 -609 3800 Elmerton Avenue Apt. C Harrisburg, PA 17109 Re: Financial Interests Statement, Public Employee, Computer Systems Analyst V, Department of Public Welfare This responds to your financial disclosure appeal which was received by the State Ethics Commission on June 10, 1988 and which will be treated as an Advice of Counsel. Issue: You ask whether in your capacity as a Computer Systems Analyst V with the Department of Public Welfare, hereinafter DPW, 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, as set forth in these two documents are incorporated herein by reference: - "Definition: This is administrative work in the analysis of various systems and their adaptation to electronic data processing and other modern management methods, or in multi - departmental ADP /EDP research and planning. Mr. Malcolm C. Jones July 12, 1988 Page 2 An employe in this class directs the design and maintenance of all systems within a state agencies characterized by many highly - complex programs which have been, or will be, adapted to electronic data processing methods, or directs and participates in multi - departmental ADP /EDP research and planning. Work performed by incumbents in this class is differentiated from that of the Computer Systems Analyst 4 class by the greater number and complexity of computer applications, the greater inherent difficulty of comprehending subject matter involved, and the more advanced and complex computer equipment required to process and store the programs; or the complexity of the area of research and difficulty of inter- departmental coordination and implementation of ADP /EDP plans. Duties are essentially the same as those performed by employes in the Computer Systems Analyst 4 class and include conferring with management officials and supervising systems studies to determine the feasibility of installing or converting programs to an electronic data processing system; supervising the formulation of procedures and instructions for operation of the systems; and supervising the integration of systems into electronic data processing methods; insuring the workability of systems; and supervising the development of executive routines or other means to insure the continued efficient operation of the systems. Supervision is exercised over a staff of computer systems analysts and may require supervision of computer programmers, computer operators, and peripheral equipment personnel. Work is assigned in the form of program objectives by an administrative supervisor and reviewed periodically for attainment of goals." Discussion: As set forth above, the question to be answered here is clear. Specifically, are you, in your capacity as a Computer Systems Analyst V serving with the DPW 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: Mr. Malcolm C. Jones July 12, 1988 Page 3 contracting or procurement; administering or monitoring grants or subsidies; planning or zoning; inspecting, licensing, 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 f r o m 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; Mr. Malcolm C. Jones July 12, 1988 Page 4 ( -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 -) actions: whose recommendations or ( -1 -) are an inherent and recurring 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. (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. Mr. Malcolm C. Jones July 12, 1988 Page 5 (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 §1.1. 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 your classification specifications and the-job description under which you operate. The inquiry necessarily focuses on the job itself and not upon 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). Mr. Malcolm C. Jones July 12, 1988 Page 6 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 Computer Systems Analyst V, 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, of major import is the fact that you are an Operating Systems Unit Chief who exercises supervision as to vendor supplied software, the development . of specialized software, the directing of the development and operation of procedures for measuring computer performance and the operation of the Operating Systems Unit. You are also a member of the evaluation committee which selects new computer hardware /software. Such activity has an economic impact of greater than de minimus nature on the interests of any person. The classification /specification for a Computer Systems Analyst V also provides for supervision over computer systems analyst or programmers, operators and personnel. As noted above, the inquiry is not limited to the duties of one specific individual in the position but as to the nature of the position itself. Although you state that you believe that you do not fall within one of the five definitional areas of the term public employee, it is clear that due to the nature of your duties and responsibilities your activities would have an economic impact of greater than di minimus upon the interest of any other person. Further, the fact that you exercise supervision falls within subparagraph I of the Regulations of the Commission as to the definition of public employee. In this regard, it should be further noted under subsection (iii) (B) that Bureau Directors, Division Chiefs, heads of equivalent organization elements and other government body department heads are considered as public employees; since you are a Operating Systems unit Chief, you will fall within this category. These activities fall within the definition of public employee as contained in the regulations of Mr. Malcolm C. Jones July 12, 1988 Page 7 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 a Computer Systems Analyst V with the DPW. 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. 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. Sincerely, Vincent J. Dopko, General Counsel