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HomeMy WebLinkAbout01-510 FriedmanMartin R. Friedman 400 Bower Road Fredonia, PA 16124 ADVICE OF COUNSEL January 24, 2001 Re: Public Employee; FIS; School District; Psychologist. Dear Mr. Friedman: 6. Making referrals to outside agencies; 01 -510 This responds to your letter dated December 18, 2000, by which you requested an advisory from the State Ethics Commission. Issue: Whether in your capacity as a psychologist for a school district, you would be considered a "public employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq., and the Regulations of the State Ethics Commission, and particularly, the requirements for filing Statements of Financial Interests. Facts: As the School Psychologist for the Reynolds School District, you seek an advisory from the State Ethics Commission as to whether you are subject to the Ethics Act, and specifically, the requirements for filing Statements of Financial Interests. You have submitted copies of your job description and organizational chart, which documents are incorporated herein by reference. Your job responsibilities include, inter alia, the following: 1. Performing appropriate diagnostic procedures in cooperation with other specialists in providing comprehensive multi - disciplinary team evaluations for exceptional children or children thought to be exceptional; 2. Upon referral, administering tests to students; 3. Providing support to parents upon request or directive; 4. Providing input at student staffings; 5. Conducting short -term individual or group counseling for students with acute psychological dysfunctions, and making referrals as necessary within appropriate timeframes; Friedman, 01 -510 January 24, 2001 Page 2 7. Serving as LEA (Local Education Agency) upon request by Superintendent, and administering and interpreting NORA (Notice of Recommended Assignments) and LRE (Least Restrictive Environment) information to parents; 8. Ensuring that all psychological procedures are provided within acceptable legal and ethical standards in both education and psychology; 9. Working under the supervision of the Superintendent and principals at all levels to ensure that appropriate special education programming is carried out in a manner that is both effective and efficient; and 10. Preparing in cooperation with the Superintendent the departmental budget. Your employer has required you to file a Statement of Financial Interests annually. Noting that you have been informed by other school psychologists in the area that you are the only one who is requested to do this, you pose your inquiry as follows: "I am, therefore, requesting an opinion to see if I need to continue this practice. If not, when would the last one need to be completed?" Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. § §1107(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. § §1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. The question which you pose is whether, as a psychologist for a school district, you would be considered a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission, and particularly, the requirements for filing Statements of Financial Interests. The Ethics Act defines the term "public employee" as follows: §1102. 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. The term shall not include individuals who are employed by this Commonwealth or any political subdivision thereof in teaching as distinguished from administrative duties. Friedman, 01 -510 January 24, 2001 Page 3 65 Pa.C.S. §1102. The regulations of the State Ethics Commission similarly define the term "public employee" and set forth the following additional criteria: (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of "public employe ": (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 recommen- dations. (H) The individual's recommendations or actions are an inherent and recurring part of his position. (1) 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. Friedman, 01 -510 January 24, 2001 Page 4 (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 superinten- dents, 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. 51 Pa. Code §11.1. Status as a "public employee" subject to the Ethics Act is determined by applying the above definition and criteria to the position held. The focus is necessarily upon the position itself, and not upon the individual incumbent in the position, the variable functions of the position, or the manner in which a particular individual occupying the position may carry out those functions. See, Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Commw. Ct. 1984); and Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982). Furthermore, the Commonwealth Court of Pennsylvania has directed that coverage under the Ethics Act be construed broadly and that exclusions under the Ethics Act be construed narrowly. See, Phillips, supra. Based upon the above judicial directives, the provisions of the Ethics Act, the State Ethics Commission Regulations, and the opinions of the State Ethics Commission, in light of your duties and responsibilities, the necessary conclusion is that you are a "public employee" subject to the financial reporting and disclosure requirements of the Ethics Act. It is clear that in your capacity as a School Psychologist, you have the ability to take or recommend official action with respect to subparagraph (5) within the definition of "public employee" as set forth in the Ethics Act, 65 Pa. .S. §1102. Specific examples include your authority to: make referrals; ensure that all psychological procedures are provided within acceptable legal and ethical standards in both education and psychology; work under the supervision of the Superintendent and principals at all levels to ensure that appropriate special education programming is carried out in a manner that is both effective and efficient; and prepare in cooperation with the Superintendent the departmental budget. These activities also fall within the definition of public employee as contained in the regulations of the State Ethics Commission, Friedman, 01 -510 January 24, 2001 Page 5 specifically at 51 Pa. Code §11.1, "public employee," subparagraph (ii). Therefore, you are a "public employee" subject to the Ethics Act and you are required to file Statements of Financial Interests pursuant to the Ethics Act. Conclusion: In your capacity as the School Psychologist for the Reynolds School District, you are a "public employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq., and the Regulations of the State Ethics Commission. Accordingly, you must file a Statement of Financial Interests each year in which you hold the aforesaid position and the year following your termination of such service. If you have not already done so, a Statement of Financial Interests must be filed within 30 days of this Advice. Pursuant to Section 1107(11), an 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, provided 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. 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, Vincent J. Dopko Chief Counsel