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HomeMy WebLinkAbout97-565 EllisonSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 12, 1997 Ruthann Hubbert- Kemper Director Pennsylvania Capitol Preservation Committee Room 30, Capitol Annex Building House Box 202231 Harrisburg, PA 17120 97 -565 Re: Capitol Preservation Committee; Controller /Personnel Officer; Preservation Project Manager; Operations Support Planner; Public Employee; FIS. Dear Ms. Hubbert- Kemper: This responds to your letter dated April 11, 1997 wherein you request an advisory from the State Ethics Commission. Issue: You ask whether persons in the positions of Controller /Personnel Officer, Preservation Project Manager, and Operations Support Planner with the Pennsylvania Capitol Preservation Committee are to be considered "public employees" as that term is defined in the Public Official and Employee Ethics Law. Facts: As Director of the Pennsylvania Capitol Preservation Committee (PCPC), you request an advisory on behalf of the following PCPC staff members: Susan A. Ellison (Ellison), Controller /Personnel Officer; Carrie E. Forry (Forry), Preservation Project Manager; and Harva J. Owings (Owings), Operations Support Planner. You ask whether the activities and functions of the above positions 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. In order to review the question presented, we will briefly outline the duties and responsibilities associated with these positions as contained in the job descriptions which you have submitted. The duties and responsibilities set forth in the job descriptions are incorporated herein by reference. The position of Controller /Personnel Officer deals primarily with the processing of invoices, releasing payment to contractors and vendors, and depositing funds into PCPC's Restoration Trust Fund. The Controller /Personnel Officer is also responsible for creating the appropriate financial statements and budget reports, assisting with the preparation of contracts for Committee employees and interns, processing payroll, and personnel matters. The duties of the Controller /Personnel Officer include, but are not limited to, the following: review invoices; maintain checking account; make deposits Hubbert- Kemner 97 -565 May 12, 1997 Page 2 into the Capitol Restoration Trust Fund; order office supplies from outside vendors; draft contracts /agreements for interns and PCPC employees; process payroll; enforce personnel policy; and supervise interns. The position of Preservation Project Manager is one of providing assistance with the daily activities that focus on preserving the Capitol Complex, its artifacts and artwork. The work revolves around the monitoring of building contracts that affect the historic integrity of the Capitol structures, and landscape specifications review and job conferences and work under contract. The Preservation Project Manager is responsible for the monitoring and documentation of day -to -day operations of projects affecting the Capitol and is under the immediate supervision of the Director and Controller /Personnel Officer. The duties of the Preservation Project Manager include, but are not limited to, the following: monitor and document all contracts /construction which affects the Capitol Complex; investigate and document the interstitial spaces of the Capitol and Annex building; provide Project Subcommittee reports; schedule and oversee shooting of all PCPC projects requiring documentation and collaborate in the review and editing of documentary videos; and collaborate on the development of PCCP's policies of preservation and maintenance. The position of Operations Support Planner is an administrative support position. An employee in this position performs administrative duties of a varied and complex nature requiring confidentiality, sound judgment, and discretion. Work involves making decisions concerning appropriate information and taking action after receiving guidance and approval from the Director and Controller /Personnel Officer. This position involves operations oversight logic, coordination and support for the Committee's administration of projects. Ellison, Forry, and Owings have authorized you to inquire on their behalf as to whether, in their respective positions, they are required to file Statements of Financial Interest. Discussion: The question to be answered is whether Ellison, Forry, and Owings, in their respective capacities as a Controller /Personnel Officer, Preservation Project Manager, and Operations Support Planner, are to be considered "public employees." The Ethics Law defines that term 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 minimis nature on the interests of any person. }lubbert- Kemper, 97 -565 May 12, 1997 Page 3 65 P.S. §402. "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 additional following 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. (6) 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 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 Hubbert- Kemper 97 -565 May 12, 1997 Page 4 51 Pa. Code §11.1. 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. The question you present must be reviewed under these provisions of the statute and the regulations of the Commission in light of the duties and obligations as described in the submitted job descriptions. 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. Commw. 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 the job functions and the information available to us, the necessary conclusion that Ellison and Forry are "public employees" subject to the financial reporting and disclosure requirements of the State Ethics Act. Hubbert - Kemper 97 -565 May 12, 1997 Page 5 It is clear that Ellison and Forry, in their capacities as Controller /Personnel Officer and Preservation Project Manager, have the ability to recommend official action with respect to subparagraph (5) within the definition of "public employee" as set forth in the Ethics Law, 65 P.S. §402. These activities fall within the definition of public employee as contained in the regulations of the Commission in Section 11.1, 51 Pa. Code §11.1. Under these circumstances and given the duties and responsibilities as outlined above, Ellison and Forry are "public employees" as that term is defined in the Ethics Law. As for Owings, based upon the definition of "public employee" and in light of the job description for the position of Operations Support Planner, we conclude that Owings is not to be considered a "public employee" as that term is defined in the State Ethics Law. This conclusion is based upon our objective review of this information from which it appears that Owings is 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." Thus, because Owings is not within the classification of the term "public employee ", she would not be subject to the financial reporting and disclosure requirements of the State Ethics Law. Accordingly, Owings would not be required to file the Statement of Financial Interests for the years in which she is employed. Conclusion: Susan A. Ellison (Ellison) and Carrie E. Forry (Forry) are to be considered "public employees" in their respective capacities as Controller /Personnel Officer and Preservation Project Manager with the Pennsylvania Capitol Preservation Committee. Accordingly, Ellison and Forry must file Statements of Financial Interests for each year in which they hold the position outlined above and for the year following their termination of service. In the position of Operations Support Planner with the Pennsylvania Capitol Preservation Committee, Harva J. Owings (Owings) is not considered a public employee as defined in the State Ethics Law. Accordingly, Owings would not be subject to the reporting and disclosure requirements of the State Ethics Law and need not file a Statement of Financial Interests. If they have not already done so, a Statement of Financial Interests must be filed by Ellison and Forry within 30 days of this Advice. The Statements 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. 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. Hubbert- Kemper 97 -565 May 12, 1997 Page 6 Any such appea/ 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. erely, , V ncent .Dop o Chief Counsel