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HomeMy WebLinkAbout92-007 ChopakDATE DECIDED: December 10, 1992 DATE MAILED: December 15, 1992 Mr. Andrew Chopak 1317 Labor & Industry Building Seventh & Forster Streets Harrisburg, PA 17120 Re: Program Analyst III, Supervisor of the Evaluation Unit, Office of Vocational Rehabilitation; Public Employee; FIS; Appeal of Advice. Dear Mr. Chopak: I. ISSUE: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: James M. Howley, Chair Daneen E. Reese, Vice Chair Dennis C. Harrington Roy W. Wilt Austin M. Lee Allan M. Kluger 92 -007 This Opinion is issued pursuant to the appeal of the Advice of Counsel, No. 92 -620 issued on August 10, 1992. Whether under the Public Official and Employee Ethics Law a Program Analyst III with the title of Supervisor of the Evaluation Unit for the Office of Vocational Rehabilitation is to be considered a "public employee" required to file a Statement of Financial Interests. II. FACTUAL BASIS FOR DETERMINATION: The issue which you have presented was originally processed as a request for an Advice of Counsel and as a result Advice of Counsel No. 92 -620 was issued on August 10, 1992. That Advice concluded that as a Program Analyst III with the title of Supervisor of the Evaluation Unit for the Office of Vocational Rehabilitation, hereinafter "OVR," you would be considered a "public employee" subject to the provisions of the Ethics Law and therefore required to file Statements of Financial Interests for each year in which you hold the above position and for the year Mr. Andrew Chopak December 15, 1992 Page 2 following termination of service. On August 20, 1992, this Commission received your letter of August 19, 1992, wherein you appealed the above Advice.. By letter dated November 2, 1992, you were notified of the date, time and location of the public meeting at which your appeal would be considered. The appeal of Advice states the following reasons in support of your appeal. You assert that you do not have an economic impact of greater than a de minimis nature on the interests of any person, as to which you reference the Advice at page 3. You further state that you have no authority to make final decisions, as to which you reference the Advice at page 4. The following information was supplied in your original request for an advisory, which was in the form of a Financial Interests Disclosure Appeal dated April 13, 1992. You asserted that you are "just a pawn in the chess game" and that you are not. responsible for any final decisions. You stated that you have no contracting or procurement responsibilities, and do not administer or monitor grants. You asserted that you have nothing to do with zoning, inspecting, licensing, regulating or auditing any person, including family members, and that you do not have any responsibility in the field. You advised that you are involved with program evaluation /management information processing and have no official responsibilities to communicate with the public. You have been in the same position for the last thirteen years and have never completed a Statement of Financial Interests. You stated that you get tired of completing the financial disclosure appeal form year after year and suggested that your name be removed from the yearly requirement to save the Commonwealth of Pennsylvania paper and forms, to save of your time in writing your response, and to save the time of others in reading it. You submitted various memoranda from the Director of Personnel at OVR from the years 1990 to 1992. These memoranda involved your appeals to that office from the filing requirement. The documents which you have submitted indicate that waivers were granted to you as to prior calendar years, but that as of July 10, 1992, you were advised that you are subject to the filing requirement. As a result of the July 10, 1992 memorandum, you filed your request with the State Ethics Commission for a determination of this matter. In addition to the documents which you submitted, Advice of Counsel No. 92 -620 was also based upon a review of the duties and responsibilities of your position as set forth in your job description. Copies of your job description and organizational chart had been obtained from OVR and were incorporated by reference within Advice 92 -620. The Advice noted that you are classified as a Program Analyst III with a position title of Supervisor of the Mr. Andrew Chopak December 15, 1992 Page 3 Evaluation Unit. The Advice recited certain of your job duties and responsibilities. Given that your appeal has not challenged the Advice's recitation of your duties and responsibilities as set forth in your job description, that recitation shall be presumed to be accurate and is set forth herein verbatim: An employee in this position works under the direction of the Administrator of the Policy, Planning and Evaluation section of OVR. The Program Analyst III (Supervisor of the Evaluation Unit) supervises two analysts in conducting system analysis studies and program auditing in the following areas: (1) the goals and objectives of the agency; (2) the impact and effectiveness of the program; (3) the efficiency of the program management; and (4) the future needs of the program. The Supervisor of the Evaluation Unit also evaluates the management information system reports and processes to provide administration with objective analysis of program activities important for decision making. Examples of the work of an employee in your position include, but are not limited to, the following: 1. Reviewing the work of subordinate analysts and developing and administering training programs to field staff at the levels of district administration, rehabilitation supervisors, and rehabilitation counselors; 2. Determining specifically and measuring what impact the program is having upon the clientele served by the Vocational Rehabilitation (VR) program and developing quantitative criteria to measure the effectiveness of stated goals and objectives; 3. Preparing Federal Evaluation Reports resulting from the evaluation of existing programs to determine the extent to which stated goals, objectives and needs served by the program are being met; 4. Preparing major segments of reports and drafting recommendations for program planning and systems analysis; 5. Assessing district office progress and making recommendations for actions; 6. Working as a member of the Policy, Planning & Mr. Andrew Chopak December 15, 1992 Page 4 Evaluation analytic team on special assignments; and 7. Developing new evaluation information in areas not previously addressed to: (a) Develop new evaluation capacity; (b) Evaluate the impact of federal regulations; (c) Evaluate program goals and objectives; Advice 92 -620 at 2 -3. and (d) Make the VR program more effective and efficient. III. DISCUSSION: We must determine whether, as a Program Analyst III with the title of Supervisor of the Evaluation Unit for the Office of Vocational Rehabiliation (OVR), you are a public employee as defined under the Ethics Law so as to be subject to the provisions of the Ethics Law including those provisions pertaining to the filing requirements of Statements of Financial Interests. The Ethics Law defines the term "public employee" 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: (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 minimus nature on the interests of any person. "Public employee" shall not include individ- uals who are employed by the State or any Mr. Andrew Chopak December 15, 1992 Page 5 65 P.S. §402. political subdivision thereof in teaching as distinguished from administrative duties. This Commission's Regulations employee" includes any individual: (B) Who meets the subclause (I) or (II): (I) The individual is: provide that the term "public criteria of either (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; (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 recommen- dations; or (4) makes final technical recommen- dations; and (b) whose recommendations or actions: (1) are an inherent and recurring part of his position; and Mr. Andrew Chopak December 15, 1992 Page 6 (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. (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 Mr. Andrew Chopak December 15, 1992 Page 7 51 Pa. Code S1.1. 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 clerks of the schools. Our review of your job duties and responsibilities within the above parameters of the Ethics Law and Commission Regulations compels the conclusion that you are indeed a "public employee" subject to the Ethics Law and required to file Statements of Financial Interests as mandated by that Law. Our review of this matter must focus upon your duties and responsibilities as set forth in your job description rather than upon any assertions as to the duties actually performed. The test utilized by this Commission in determining whether a given individual is a public official /public employee is an objective test whereby the controlling element is the grant of powers, duties, and responsibilities rather than the powers, duties, or responsibilities actually exercised. See, Phillips v. State Ethics Commission, 79 Pa. Cmmw. Ct. 491, 470 A.2d 659 (1984), which specifically upheld the utilization of this objective test. We must conclude that your official actions have an economic impact of greater than a de minimis nature on the interests of a person, within subsection (5) of the statutory definition of "public employee ", 65 P.S. §402, and additionally that you recurringly recommend official action within the Regulations of the State Ethics Commission. 51 Pa. Code S1.1(b)(II). Although the Advice of Counsel listed numerous of your activities in support of its conclusion that you are a "public employee," we need only focus upon the fact that you determine and measure the impact of the Vocational Rehabilitation program upon its clientele; draft recommendations for program planning and systems analysis; and assess the progress of the district office while making recommendations for actions. The fact that you are also a member of the Policy, Planning and Evaluation Analytic Team working on special assignments is additional support for our conclusion that you are a "public employee" subject to the provisions of the Ethics Law. Mr. Andrew Chopak December 15, 1992 Page 8 Your assertion that you do not have an economic impact of greater than a de minimis nature on the interests of any person is simply belied by your above responsibilities. Your assertion that you do not have the authority to make final decisions is irrelevant in that you have the authority to recommend official action which would clearly have an economic impact of greater than a de minimis nature on the interests of other persons. Furthermore, it appears that your authority to make such recommendations is an inherent and recurring part of your position and would, at least in some instances, affect organizations other than OVR. Based upon the above, it is clear that as a Program Analyst III with the title of Supervisor of the Evaluation Unit for OVR, you are a "public employee" subject to the filing requirements and other provisions of the Ethics Law. Advice of Counsel No. 92 -620 is affirmed. 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 Act has not been considered in that they do not involve an interpretation of the Ethics Law. IV. CONCLUSION: A Program Analyst III with the title of Supervisor of the Evaluation Unit for the Office of Vocational Rehabilitation (OVR) is a "public employee" subject to the provisions of the Ethics Law, including but not limited to the requirement that you file a Statement of Financial Interests each year that the above position is held and the year after leaving the said position. Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By the Commission, James M. Howley Chair