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HomeMy WebLinkAbout02-561 BaumgartnerMs. Janet E. Dean Associate Vice President for Human Resources and Faculty Relations Edinboro University of Pennsylvania Edinboro, PA 16444 ADVICE OF COUNSEL May 22, 2002 Re: Public Employee; FIS; Athletic Director; Edinboro University of Pennsylvania. Dear Ms. Dean: 02 -561 This responds to your submission of a Financial Interest Disclosure Appeal filed by the Director of Athletics of Edinboro University of Pennsylvania, which will be treated as a request for advice from the State Ethics Commission. Issue: Whether the Director of Athletics of Edinboro University of Pennsylvania wed be considered a "public employee" subject to the Public Official and Employee Ethics Act (the "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: You seek a determination as to whether, in the capacity as the Director of Athletics of Edinboro University of Pennsylvania, Bruce Baumgartner ( Baumgartner' ) is a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. §1102; 51 Pa. Code §11.1. You specifically question whether Baumgartner is required to file Statements of Financial Interests ( "FIS's'). In support of the appeal, Baumgartner proffers three main arguments, which may be fairly summarized as follows. First, the abridgement of Management Directive 205.10, which is provided with the FIS form, does not include the position of the Director of Athletics, its job duties, or responsibilities under paragraph 6, subparagraph (b) defining "Public Employe." With regard to contract procurement, the Purchasing Office and the University have made it clear that Baumgartner cannot purchase outside of University procedures or sign contracts. All purchase recommendations Baumgartner signs are signed by the Vice President for Student Affairs and Student Success and /or monitored by Financial Operations. Baumgartner has recommended purchases that have been denied by Financial Operations, and Financial Operations has held or has changed expenditure requests and cash advances that Baumgartner has signed in the past, which demonstrates Dean /Baumgartner 02 -561 May 22, 2002 Page 2 that he does not have control over expenditures on Edinboro University campus. Camp contracts are generated in the Athletic Office, reviewed by the Vice President for Student Affairs and Student Success, the Conference and Convention Center Coordinator, and signed by the Vice President for Financial Operations. As to planning or zoning, Baumgartner currently has no responsibilities in this area. Regarding inspecting, licensing, regulating, or auditing any person, although Baumgartner is responsible for adhering to athletic budgets, he has no auditing responsibilities in his job description. In addition, Baumgartner does not perform any duties relating to such activities. The only budget that Baumgartner oversees is an internal budget. As to any other activity where the official action has an economic impact of greater than a de minimus nature on the interests of any person, although Baumgartner does make recommendations as to budgets and personnel issues, he has no direct authority on any financial issues. The President is the only person who sets salaries and hires and fires personnel. Baumgartner has made many recommendations that have not been approved by the Vice President for Student Affairs and Student Success, Human Resources or the President. Baumgartner has no immediate authority as to hiring or financial issues. Baumgartner does not recommend to the "'authority to make final decisions] "' for any employment issues, contract procurement, or any purchases over $1,000. Baumgartner "does have the authority to forward or stop purchases but not to the final decision, although the coaches have bypassed the athletic director and received equipment and on personnel issues." The job description for the Athletic Director uses the words "hiring," "financial," "fundraising," "camp operations," "budget," and "controller responsibilities." The job description also uses the phrases "recommend to," "serve as liaison," and "in concert with." If Baumgartner makes a recommendation to a Vice President on any issue, Financial Operations and /or Human Resources, and the President have final approval. Baumgartner does not routinely make "recommendations to the final decisions' at this University. However, on a rare occasion, the President does ask Baumgartner for a recommendation. Second, Janet Dean, Associate Vice President for Human Resources and Faculty Relations, has informed Baumgartner that James McDonald applied for and "received an appeal." Past practices at Edinboro University would allow the Director of Athletics to be granted an appeal. Baumgartner states that Mr. McDonald's situation was very similar to his. Third, at the PSAC Athletic Administration meeting in State College on April 8 -9, 2002, Baumgartner conducted a survey of other athletic directors and concluded that only two out of twelve completed FIS's. Discussion: 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; Dean /Baumgartner 02 -561 May 22, 2002 Page 3 (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. 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. (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. Dean /Baumgartner 02 -561 May 22, 2002 Page 4 (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. 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 Tight of Mr. Baumgartner's duties and responsibilities, the necessary conclusion is that he is a "public employee" subject to the financial reporting and disclosure requirements of the Ethics Act. It is clear that in Baumgartner's capacity acity as Athletic Director of Edinboro University, has the ability to take or recommend action with respect to subparagr (5) wi the definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. 1102. Specifically, Baumgartner supervises all activities of the coaches, trainers, an staff; makes recommendations to the Vice President of Student Affairs and Student Success as Dean /Baumgartner 02 -561 May 22, 2002 Page 5 to the hiring, promotion, evaluation, salary adjustment, and all other personnel actions for coaches, trainers, and staff; prepares the University and SGA budgets and recommends them to the Vice President for Student Affairs and Student Success; serves as a liaison in dealing with fiscal and contractual concerns, which also falls within the ambit of subparagraph (1); conducts fundraising activities; coordinates and implements annual giving to the athletic department; and obtains corporate sponsorships. These activities would also meet the criteria for determining Mr. Baumgartner's status as a public employee under the Regulations of the State Ethics Commission, specifically at 51 Pa. Code §11.1, "public employee," subparagraph (ii). Therefore, Mr. Baumgartner is a "public employee" subject to the Ethics Act and he is required to file Statements of Financial Interests pursuant to the Ethics Act. It is parenthetically noted that a determination was made that the Athletic Director of Edinboro University was a public employee as defined in the Ethics Act and was required to file FIS's. See, McDonald, Advice of Counsel, 88 -594. Conclusion: In Bruce Baumgartner's ( "Baumgartner ") capacity as an Athletic Director with Edinboro University of Pennsylvania, he is a "public employee" subject to the Public Official and Employee Ethics Act and the Regulations of the State Ethics Commission. Accordingly, Baumgartner must file a Statement of Financial Interests each year in which he holds the aforesaid position and the year following your termination of such service. If Baumgartner has 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 thirt (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, nited 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