Loading...
HomeMy WebLinkAbout97-561 BrownSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 28, 1997 Donna Brown Supervisor of Science K -12 North Penn School District 401 East Hancock Street Lansdale, PA 19446 -3960 97 -561 Re: School District, Supervisor of Science K -12; Public Employee; FIS. Dear Ms. Brown: This responds to your letter dated March 24, 1997 requesting advice from the State Ethics Commission. Issue: Whether in your capacity as a Supervisor of Science K -12 with North Penn School District, you are to be considered a "public employee" as that term is defined in the Public Official and Employee Ethics Law. Facts: You ask 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. You have submitted your position description, which is incorporated herein by reference. Your numerous duties and responsibilities, as set forth in your position description, include but are not limited to the following. In your position, you assist in the selection of new staff members and recommend departmental staff teaching assignments. You assist building principals in the supervision and evaluation of all appropriate staff members. You develop sequential programs for all levels from kindergarten through grade 12. You evaluate, improve, and update appropriate courses of study and you recommend course prerequisites. You evaluate and recommend textbooks and all other instructional materials. You implement efficient requisitions and inventory and distribution procedures for all pertinent instructional materials, supplies, and equipment. You develop and utilize appropriate assessments, and you prepare appropriate budget recommendations. You initiate and develop new partnerships and quality relationships between the School District and area businesses, and you maintain what would appear to be an existing relationship with Merck and the Merck Institute for Science Education. Brown, 97 -561 April 28, 1997 Page 2 Discussion: The question to be answered is whether you, in your capacity as a Supervisor of Science K -12 for North Penn School District, are to be considered a "public employee." The Ethics Law defines that term as follows: 65 P.S. §402. 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 economic impact of greater than a de minimis nature on the interests of any person. "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. The regulations of the State Ethics Commission similarly define the term public employee as above with the following additional 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. office. (C) The individual is the supervisor of a highest level field (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. Brown, 97 -561 April 28, 1997 Page 3 (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. (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, 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. Brown, 97 -561 April 28, 1997 Page 4 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 position description and /or classification specifications, 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. Comm. 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 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, the necessary conclusion is that you are a "public employee" subject to the financial reporting and disclosure requirements of the Ethics Law. It is clear that in your capacity as a Supervisor of Science K -12, you have the ability to take or recommend official action with respect to subparagraphs (1) and (5) within the definition of "public employee" as set forth in the Ethics Law, 65 P.S. §402. Specific examples include your authority to: participate in the selection, supervision, and evaluation of staff members; develop and utilize appropriate assessments; prepare budget recommendations; develop sequential programs; evaluate, improve and update existing courses of study and recommend course prerequisites; evaluate and recommend textbooks and all other instructional materials; and initiate and develop business partnerships between the School District and area businesses. These activities also fall within the definition of public employee as contained in the regulations of the Commission in Section 11.1, subparagraph (ii). 51 Pa. Code §11.1. Your duties are clearly administrative and are not limited to teaching. 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. Conclusion: You are to be considered a "public employee" in your capacity as a Supervisor of Science K -12 with the North Penn School District. 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 30 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. This letter is a public record and will be made available as such. Brown, 97 -561 April 28, 1997 Page 5 Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, (.61 Vincent Dopko Chief Counsel