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HomeMy WebLinkAbout96-003 SalandriaOPINION OF THE COMMISSION Vincent J. Salandria, Esquire Assistant General Counsel The School District of Philadelphia Board of Education 2130 Arch Street 5th Floor Philadelphia, PA 1 91 03 -1 390 I. ISSUE • STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Allan M. Kluger Rev. Joseph G. Quinn DATE DECIDED: 5/31/96 DATE MAILED: 6/12/96 Elliot A. Strokoff, Esquire Strokoff & Cowden, P.C. 132 State Street PO Box 11903 Harrisburg, PA 17108 96 -003 Re: Public Employee; School District of Philadelphia; Assistant Principals; FIS. Dear Mr. Salandria and Mr. Strokoff: This Opinion is issued pursuant to your advisory request dated October 11, 1995 and November 15, 1995. Whether Assistant Principals with the School District of Philadelphia are to be considered "public employees" required to file Statements of Financial Interests under the Public Official and Employee Ethics Law. 1I. FACTUAL BASIS FOR DETERMINATION As Assistant General Counsel and a prior labor lawyer for the Philadelphia School District (School District), you have become familiar with the work of Assistant Principals in the School District. You reference a letter from Barry B. Wohlman (Wohlman) dated September 8, 1995 who represents the Commonwealth Association of School Administrators - Teamsters Local 502 (Association) which represents all Assistant Principals employed by the School District. After School District Assistant Vincent J. Salandria, Esquire, 96 -003 June 12, 1996 Page 2 Principal Jerome Wissman (Wissman) received a letter (from the Investigative Division of the State Ethics Commission) requesting that he file a Financial Interests Statement (FIS), Wohlman opined that Wissman and all Assistant Principals are exempt from the Ethics Law. Since you agree with Wohlman's conclusion, you submit the instant advisory request. In a supplemental letter dated October 11, 1995, Wohlman asserts that Assistant Principals are neither public officials nor public employees under the Ethics Law or Regulations. After summarizing the job description of Assistant Principals quoted below, Wohlman concludes that Assistant Principals have no authority or responsibility for contracting, procurement, administering or monitoring grants or subsidies and have no financial authority beyond a de minimis economic impact. Even though the activities of Assistant Principals include the expenditure of funds for payroll, maintenance and similar activities, Wohlman asserts that such activities are ministerial and under the direction and control of a Principal. After noting that Assistant Principals spend at least 50% of their time in direct educational matters, Wohlman states that this Commission's Regulations generally consider Principals to be public employees but do not reference Assistant Principals whose duties are substantially different. In your supplemental letter of November 15, 1995, you state that the School District agrees with and adopts the factual statements above and requests an exception (for FIS filing) as to Assistant Principals. The duties and responsibilities of an Assistant Principal, as set forth in the job description provided, are incorporated herein by reference. The job description states in pertinent part: General Definition This is administrative educational work assisting the School Principal in the provision of direction, leadership and day -to -day management of educational activities within an assigned school. Employees in this class play an integral role in the establishment and maintenance of a school climate conducive to learning, including overseeing the enforcement of school rules and regulations and the implementation of disciplinary measures when deemed necessary. Work involves overseeing the student admission, dismissal, referral and retention processes, monitoring student and staff attendance, and supervising curriculum development activities. Work additionally involves supervising professional and paraprofessional personnel and providing administrative level liaison with internal and external components, constituents and programs. Significant aspects of the work may include serving as a member of the School Governance Council, coordinating and managing school organization, and participating in the planning, implementation and administration of site -based management and decentralization plans. Work is performed under the general direction of the School Principal. Vincent J. Salandria, Esquire, 96 -003 June 12, 1996 Page 3 Typical Examples of Work (Illustrative only) Serves as part of the assigned school's administrative team; oversees the administration of school programs and the implementation of policies; assists in planning, organizing and evaluating services for professional and non - professional personnel such as staff development activities, resource management, instructional program development and the Teacher Improvement Program (TIP). Interacts with teachers and other staff, and at the secondary school level with department heads and chairpersons, in the development of materials and methodologies for the delivery of personalized instructional programs; oversees staff providing instruction in alternative educational programs including Special Education, ESOL and Chapter 1; at the secondary school level, supervises the management of Charters, Academics and Houses; provides support for the development of short and long range objectives and goals. May serve as a member of the School Council; participates in the development of a comprehensive educational plan designed to meet Outcome -Based Education guidelines, including curriculum integration and interdisciplinary approaches to learning; assists in the transition from traditional to Outcome -Based Education dimensions; develops and oversees the implementation of revised assessment, evaluation and reporting methods. Tours the school building and its external perimeters to monitor safety and security; directs and coordinates staff supervision of areas such as hallways and cafeterias; insures that school rules and regulations are enforced by security personnel on the premises; handles student disciplinary matters. Coordinates the provision of student support services; directs the support programs designed for targeted "at- risk" students. Oversees the student admission and dismissal processes with feeder schools, including liaison activities at the elementary and secondary levels, and recruitment activities at the secondary school level, utilizes a computer -based record management system to access current student information. Conducts classroom observations of instructional staff; provides input to the School Principal during the teacher evaluation process. Establishes and maintains cooperative working relationships with community based groups, parents, students and District administrators; works collaboratively with Home and School Associations and student organizations; develops resources within the community. Coordinates extra - curricular and athletic activities; may engage in before - school, after - school and evening activities as required. Vincent J. Salandria, Esquire, 96 -003 June 12, 1996 Page 4 Performs related work as required. On February 12, 1996, a Brief of the Association was received which presented two arguments. First, because the Regulations are designed to fill in the "spaces" as to the statutory definition of public employee and because the Regulations omit "Assistant School Principals" from the listing of "positions ... generally considered public employees . . ." in 51 Pa.Code 11.1, it is implied that this position is not covered. Second, although the job description for an assistant principal contains a provision that assistant principals may serve on School Governance Councils (Councils), the final Agreement for Council membership made no provision for assistant principals. Hence, assistant principals may ma sit on Councils, even if directed by a principal. At the public meeting on February 16, 1996, Attorney Elliott Strokoff; Daniel McGinley, President of the Association; and Jerome Wissman, Assistant Principal in the Area Vocational Technical High School appeared and supplied the following information. As to the many assistant principals in the District, the one job description for assistant principals was revised in February 1995, just after the Superintendent announced his intention to create the Councils. Since it was possible that assistant principals might serve on the Councils and since job vacancies had to be advertised, a provision about Council membership was inserted into the job description. After Council membership was negotiated, it was decided that assistant principals would not be on Councils which are advisory bodies that have no power to spend money or to make budgets. It remains to be seen whether Councils will have any influence in the budgetary process. The District is much larger than any other school districts where an assistant principal might have some budget input. In this District, the assistant principals are at a much lower level than the superintendent, deputy superintendent, regional superintendents and principals. As to District contracts, principals do not have authority to enter into such contracts. The activities of Assistant Principal Wissman consist primarily of supervision, parents, student government, lateness, absences, organization, some community work, and graduation, with the majority of the day spent on discipline. Mr. Wissman does not set policy but only makes recommendations. Principals for the District began filing FIS's in the last year. Many years ago under Act 170 of 1978, the District received an exception as to principals. People above that level, consisting of the superintendent's cabinet, executive directors and directors, file. Last year, through correspondence with the State Ethics Commission and a review of the status of principals who file in other school districts, a directive was issued for District principals to file FIS's. In the District, not only are there the superintendent, deputy superintendent, regional superintendents, and assistant regional superintendents, but also, for schools in a cluster, there are cluster leaders and assistant cluster leaders who are all management level positions with the principals reporting to these individuals. As to Vincent J. Salandria, Esquire, 96 -003 June 12, 1996 Page 5 recommendations of policies or anything else, there is input from all levels, the lowest of which is assistant principals, so that you state that their action is de minimis. Assistant principals do many things but in the District bureaucracy, you believe that their impact as to discretionary and financial matters is de minimis. As to District job descriptions, they are general and all inclusive, reflecting things people might do rather than the specific things they do. As to planning, every school has a school improvement plan prepared with the participation of teachers, parents, students, principals and assistant principals .so that the role of assistant principals is similar to all others as to such input. Hence their position is not that of a policy maker. You believe that the job description, when reviewed in conjunction with the definition of public employee, does not fall within any of the enumerated categories, even though assistant principals do have some discretion and some supervisory functions over teachers. Since it was your impression that the impetus for filing was solely the Council issue and not the other aspects of the duties of assistant principals, you requested and were granted a continuance so that you could file a brief on these other issues and appear at the next public session of the Commission. A supplemental Brief and Affidavit of McGinley were received on March 18, 1996. In the Brief you argue that since Assistant Principals are not mentioned in the regulations, each determination of coverage must be fact specific and based upon the evidence of each position. Since the School District is the largest in the Commonwealth with Assistant Principals fitting into the administrative structure at the lowest level, you assert that their duties do not implicate the Ethics Law. In support thereof, you note that David Hornbeck, Superintendent of the School District, in a presentation to Philadelphia City Council did not include Assistant Principals in the School District organizational structure. Citing Rogers v. SEC, 80 Pa. Commw. 43, 470 A.2d 1 120 (1984), you argue that Assistant Principals are not in a position to take actions which would result in the actual or apparent realization of personal gain and therefore should be exempt from the requirements of the Ethics Law. After noting that this Commission has been historically concerned about the use of public position for personal economic benefit, you point out that all money matters in the School District are controlled by the Managing Director and Deputy Managing Director through a central school district office consisting of over 5,700 employees. The functions of this central office include financial resources, facilities management, food services, purchasing, transportation and human resources. Any role an Assistant Principal would perform in areas of interest to this Commission would have to be within the structure of the enormous central office bureaucracy of the District. However, Assistant Principals have no role in procurement. All significant procurements are initiated by a central office in the School District. The smaller local school procurements that are allowable must be initiated by the school Principal. Assistant Principals play no part in the budget process. In the Supplemental Affidavit, McGinley states that the budgetary process is so encumbered with bureaucratic rules that it is doubtful that even the Principal's budgetary request has anything other than a de minimis impact upon fiscal functions and therefore, it is Vincent J. Salandria, Esquire, 96 -003 June 12, 1996 Page 6 profferred that Assistant Principals would have a Tess than de minimis impact upon the budget. McGinley further states that Assistant Principals play no role in the hiring or evaluation of teachers. You state that in other school districts with fewer administrators, there may be assistant principals who play a significant role in fiscal matters and in the hiring of teachers. The situation is very different in the School District where these functions are regulated by a large bureaucracy. You cite Casey, Opinion No. 80 -049, where school managers with circumscribed duties and no independent decision making as to contracting or procurement were not public employees. You state that the duties of Assistant Principals in the School District are narrow, circumscribed managerial responsibilities akin to those of the managers in Opinion 80 -049, supra. Because of the bureaucratic regulations and the limitations imposed by collective bargaining agreements, you contend that Assistant Principals cannot exceed the de minimis threshold established by the Ethics Law. The Supplemental Affidavit restates much of the information provided in the Supplemental Brief. Additionally, it is stated that Assistant Principals have no role in the process of the appointment of teachers. Likewise, Assistant Principals do not evaluate or rate teachers. All procurement and purchasing for the School District is controlled by the central office. Although large orders are initiated by the central office, Principals may purchase supplies from vendors in amounts below $3,000.00. Assistant Principals may only request purchases through the Principal whose signature is needed to initiate a purchase order request. Since there is little latitude in developing the School District budget, and given that the funding formulas and allocations are pre- determined by precise guidelines from the central office, Principals put together the local school's budget and allocations for submission to a regional office for review and revision which in turn forwards same to the central office for further action. Such materials are ultimately submitted to the Pennsylvania Department of Education for final approval. Assistant Principals have no role in the entire process. At the public meeting on May 30, 1996, you noted that one of the distinguishing features of the District is that all financial /personnel matters are run by the Office of Managing Director. You stated that Assistant Principals have no authority in the areas that concern the Commission in that they have no independent, real or contractual authority and merely assist principals on occasion. You argued that although assistant principals in other school districts in the rest of Pennsylvania may have authority in such areas, District Assistant Principals do not. In determining coverage under the Ethics Law, you agree that the objective test applies. However, you argue that in addition to the job description for Assistant Principals, there are other documents which objectify the de minimis role of District Assistant Principals. You state that Assistant Principals are akin to assistant principal /teachers and that teachers are exempt from the filing requirements. Considering the purpose of the Vincent J. Salandria, Esquire, 96 -003 June 12, 1996 Page 7 Ethics Law, you contend that there never was any intent to encompass the functions which Assistant Principals perform. The job description and all other objective documentation, you contend, reflects a de minimis economic impact by Assistant Principals. III. DISCUSSION The issue before us is whether an Assistant Principal for the School District is considered a "public employee." The answer to that question hinges upon whether the activities and functions of Assistant Principals in the School District 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. 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 non - ministerial 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. 65 P.S. §402. 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 Vincent J. Salandria, Esquire, 96 -003 June 12, 1996 Page 8 (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. (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. Vincent J. Salandria, Esquire, 96 -003 June 12, 1996 Page 9 (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. 51 Pa. Code § 1 1.1. Based upon the definition of "public employee" and in light of the job description for the position of Assistant Principal in the School District, as well as the information supplied, and the proffered explanation of the job functions as set forth therein, we conclude that Assistant Principals in the School District are not to be considered within the definition of "public employee" as set forth in the Ethics Law. This conclusion is based upon our objective review of this information from which it appears that Assistant Principals in this particular School District 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." The above decision is based upon and limited by the facts that have been presented. If in the future, Assistant Principals in the School District perform other functions, such as making recommendations as to financial matters, this matter will have to be revisited. IV. CONCLUSION Assistant Principals of the School District of Philadelphia are not to be considered "public employees" required to file Financial Interests Statements. 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 thirty 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, ... law...) DaneeFi E eese Chair