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HomeMy WebLinkAbout90-541 UpdegraffSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 11, 1990 Ms. Selena Updegraff Department of the Auditor General Room 227, Finance Building Harrisburg, PA 17120 Re: Public Employee /Official, FIS, Auditor General, PC User Support Analyst I. Dear Ms. Updegraff: 90 -541 This responds to your letter of March 12, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether you as PC User Support Analyst I with Auditor General are to be considered a "public employee" or "public official" under the State Ethics Law, and therefore, required to comply with the financial reporting and disclosure provisions of the State Ethics Law. Facts: As a PC User Support Analyst I in the Office of the Auditor General, your position is not associated with decisions which affect audit outcomes, audit target, vendor purchases, budgetary matters, or the like and you do not have any supervisor capacity. You submit a copy of your job description and inquire as to whether you would have to file the Statement of Financial Interests given your level of responsibilities. In your job description which is incorporated herein by reference, you perform the following duties and responsibilities: provide technical assistance and support to users; review, analyze and resolve software /hardware difficulties; develop specialized applications utilizing available software; develop lesson plans for training sessions; attend training to gain proficiency; assist in review and updating in making adjustments to establish systems; analyzing conditions to determine and resolve hardware /software user problems; provide guidance and training to users; update internal system files; develop block diagrams and flow charts; design forms and screens; participate in preparation of procedural manuals and perform such other duties as all required. Ms. Selena Updegraff Page 2 Discussion: You question the requirements that you comply with the financial reporting and disclosure provisions of the State Ethics Law. You do not believe your duties and responsibilities are within the definition of "public employee" or "public official ". Accordingly, we have been asked to review the question of whether you are subject to the financial reporting and disclosure requirements of the State Ethics Law. We note that, for the sake of this response, we are relying primarily on your job description and /or classification specification which have been provided. The primary question to be answered is whether you are to be considered a "public employee" as that term is defined in the State Ethics Law: 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: 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. 5402. "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. 5402. Based upon the definition of "public employee" and in light of the job description and the classification specifications for the position, as well as the language in the appeal and /or request for advice, and the explanation of your job as set forth therein, we conclude that you are not to be considered a "public Ms. Selena Updegraff Page 3 such. employee" as that term is defined in the State Ethics Law. This conclusion is based upon our objective review of this information from which it appears that you are not responsible for taking or recommending official action of a non - ministerial nature with regard to any of the five categories set forth in the definition listed above for the term "public employee ". Thus, because you are not within the classification of the term "public employee ", you would not be subject to the financial reporting and disclosure requirements of the State Ethics Law. Accordingly, you would not be required to file the Statement of Financial Interests for the years in which you are employed. Section 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: In the position of PC User Support Analyst I with Auditor General, you are not to be considered a public employee as defined in the State Ethics Law. Accordingly, you would not be subject to the reporting and disclosure requirements of the State Ethics Law and need not file a Statement of Financial Interests. Sections 3(b) and (c) of the Ethics Law are applicable to everyone. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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 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 in writing Ms. Selena Updegraff Page 4 and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, • Vincent J. Dopko, Chief Counsel