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HomeMy WebLinkAbout93-561 DruppSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 10, 1993 Jeraldine F. Drupp 93 -561 713 Monroe Avenue West Brownsville, PA 15417 Re: Grant Funded Program Coordinator I; Friend -to- Friend Program, California University of Pennsylvania; Public Employee; FIS. Dear Ms. Drupp: This responds to your Financial Interest disclosure appeal dated April 22, 1993, which will be treated as a request for advice from the State Ethics Commission. Issue: Whether in the capacity as a Grant Funded Program Coordinator I with the Friend -to- Friend Program at California University of Pennsylvania, an individual is to be considered a "public employee" as that term is defined in the Public Official and Employee Ethics Law, and therefore, subject to the provisions of the Ethics Law including the requirement to file a Statement of Financial Interests. 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 Ethics Law and the regulations of this Commission. In the Financial Disclosure Appeal Form dated April 22, 1993, you state that you are not the immediate supervisor. You indicate that there are other staff members who supervise you in the program and that final decisions are made by other staff members. You believe that you are not covered by the provisions of the Ethics Law and are not required to file a Financial Interests Statement. In order to review the question presented, we will briefly outline the duties and responsibilities associated with your position as contained in your job description, a copy of which has been obtained from the California University of Pennsylvania and is incorporated herein by reference. The Grant Funded Coordinator I is responsible for the daily Jeraldine F. Drupp May 10, 1993 Page 2 tasks associated with developing Friend -to- Friend, a senior companionship match -up program. The responsibilities include: a. Organizing the advisory committee; conducting the advisory committee meetings; developing new procedures, forms, methods, and materials; developing and implementing a marketing plan; and developing project brochures and publicity articles. b. Conducting intake assessments and interviews; recruiting volunteers and participants; facilitating matches; conducting project follow -up; monitoring programs; and conducting participant evaluations. c. Articulating with agencies, individuals and community groups to promote the project; attending speaking engagements; developing a project video; and visiting with senior centers in southwestern Pennsylvania. d. Keeping records; reporting in writing on a monthly basis and in an annual report to the Vira I. Heinz Endowment; supervising the Pen Pal Program; developing evaluation tools; and conducting evaluations of participants and of the advisory board. Discussion: The question to be answered is whether, in your capacity as a Grant Funded Coordinator I for the Friend -to- Friend Program at California University of Pennsylvania, you are to be considered a "public employee." The Ethics Law 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: 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 minimis nature on the interests of any person. "Public employee" shall not include individ- Jeraldine F. Drupp May 10, 1993 Page 3 uals 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 with the additional following criteria: (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of "public employee ": (A) The individual normally performs his responsibility in the field without onsite supervision. (B) The individual is the immediate supervisor of a person who normally performs his responsibility in the field without onsite supervision. (C) The individual is the supervisor of a highest level field office. (D) The individual has the authority to make final decisions. (E) The individual has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions. (F) The individual prepares or supervises the preparation of final recommendations. (G) The individual makes final technical recommendations. (H) The individual's recommendations or actions are an inherent and recurring part of his position. (I) The individual's recommendations or actions affect organizations other than his own organization. Jeraldine F. Drupp May 10, 1993 Page 4 (iii) 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. (iv) Persons in the following positions are generally considered public employes: (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. (D) Engineers, managers and secretary - treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, administrative officers, housing and building inspectors, investigators, auditors, 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 superintendents, assistant superintendents, school business managers and principals. (G) Persons who report directly to heads of executive, legislative and independent agencies, boards and commissions except clerical personnel. (v) Persons in the following positions are generally not considered public employes: (A) City clerks, other clerical staff, road masters, secretaries, police officers, maintenance workers, construction workers, Jeraldine F. Drupp May 10, 1993 Page 5 equipment operators and recreation directors. (B) Law clerks, court criers, court reporters, probation officers, security guards and writ servers. (C) School teachers and clerks of the schools. 51 Pa. Code §11.1. 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 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 Phillips v. State Ethics Commission, 79 Pa. Commw. 491, 470 A.2d 659 (1984); 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 that coverage of the Ethics Act be construed broadly, rather than narrowly, and conversely, directs that exclusions from the Ethics Law 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 to us, the necessary conclusion that 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 Grant Funded Program Coordinator I, you have the ability to recommend official action with respect to subparagraphs (2), (4), and (5) within the definition of "public employee" as set forth in the Ethics Law, 65 P.S. §402. Specifically, according to the job description obtained from California University, the Program Coordinator organizes an advisory committee and conducts the committee meetings, develops procedures and marketing plans, recruits volunteers and participants, monitors programs, evaluates participants, keeps records, develops evaluation tools, reports to the Endowment, and evaluates the advisory board. These activities fall within the definition of public employee as contained in the regulations of the Commission in Section 11.1, subparagraph (ii). 51 Pa. Code S11.1. Under these circumstances and given your duties and responsibilities as outlined above, you are a "public employee" as that term is defined in the Ethics Law. Jeraldine F. Drupp May 10, 1993 Page 6 Conclusion: You are to be considered a "public employee" in your capacity as a Grant Funded Program Coordinator I with the Friend - to- Friend Program at California University of Pennsylvania. 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. 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. 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 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 513.2(h). ncerely, Vincent Y. Dopko Chief Counsel