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HomeMy WebLinkAbout91-513 NeffMs. Lorraine A. Neff School District of Lancaster P.O. Box 150 Lancaster, PA 17603 -0150 Dear Ms. Neff: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 7, 1991 91 -513 Re: Public Employee, FIS, Secretary to Board of School Directors, Secretary to Director of Business Affairs in School District. This responds to your letter of January 8, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether as Secretary to the Board of School Directors and Secretary to the Director of Business Affairs in the School District of Lancaster, you 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: You are appointed as secretary to the Board of School Directors and you are also employed as secretary to the Director of Business Affairs in the School District of Lancaster. You are not an elected official and you have no voting rights. In your position as secretary to the Director of Business Affairs, your duties consist of preparing all correspondence, maintaining files, making appointments for the Director, attending committee meetings and preparing minutes, and other general secretarial responsibilities as needed. You have submitted a copy of your job description for your position as secretary to the Board of School Directors, which document is incorporated herein by reference. Your major responsibilities include attending all board meetings; keeping a correct and proper record of all board proceedings; preparing and mailing the official board and board committee meeting agendas; advertising required legal notices; preparing board correspondence and preparing and maintaining board files; preparing and sending out contracts and letters to teachers granted tenure; attesting by signature the board's execution of various documents; acting as keeper of the vault, custodian of all the records, papers, office property and Ms. Lorraine A. Neff Page 2 official seal of the school district; and other general secretarial responsibilities set forth more fully in the incorporated job description. Your participation in the contracting process appears to be a mechanical process in the nature of general secretarial responsibilities. You inquire as to whether you must file a Statement of Financial Interests under the Ethics Law. Your husband is a realtor with twenty -one employees and he is regularly involved in financial transactions which would include your name. You state that it would therefore be very cumbersome for you to provide the information required in a Statement of Financial Interests and that you do not feel that this financial information would have any bearing on your position with the school district. Discussion: You question whether you are subject to the requirements to 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 for your position as secretary to the Board of School Directors and upon your description of your responsibilities for your position as secretary to the Director of Business Affairs 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: (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 Ms. Lorraine A. Neff Page 3 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 for your position as secretary to the Board of School Directors and your description of your job responsibilities in your position as secretary to the Director of Business Affairs, as well as the language in the appeal and /or request for advice, and the explanation of your jobs as set forth therein, we conclude that you are not to be considered a "public 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. Since you are not a public employee as that term is defined under the Ethics Law, you would not be restricted by the Ethics Law subject to the qualification that Section 3(b) and 3(c) apply to everyone. 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. Ms. Lorraine A. Neff Page 4 such. Conclusion: In your positions as secretary to the Board of School Directors and secretary to the Director of Business Affairs in the School District of Lancaster, 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(11), 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 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