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HomeMy WebLinkAbout92-620Mr. Andrew Chopak 1317 Labor & Industry Building Seventh & Forster Streets Harrisburg, PA 17120 STATE ETHICS COMMISSION 309 FINANCE BUILDING' P.O. BOX 11470 HARRISBURG, PA 17108.1470 TELEPHONE (71) 783.1610 ADVICE OF COUNSEL - .August 10, 1992 92-620 Re: Program Analyst III, Supervisor of the Evaluation Unit, Office of Vocational Rehabilitation; Public Employee; FIS. Dear Mr. Chopak: This responds to your Financial Interest disclosure; appeal dated April 13, 1992, which will be treated as a request for advice from the State Ethics Commission. Issue: You ask whether in your capacity as a Program Analyst III with the title of Supervisor of the Evaluation Unit for the Office of Vocational - Rehabilitation, hereinafter OVR, you are to be considered a. "public employee" as, that term is defined in the Public Official and Employee Ethics Law. Facts: You question whether your activities and functions 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. You assert that you are just a "pawn in the chess game." You state' that yoti -Are not responsible for any final decisions and have ho contracting or procurement responsibilities. You assert that you do not administer or monitor grants, and have nothing to do with zoning, inspecting, licensing, regulating or auditing any person including family members. You maintain that you do not have any responsibility in the field. You are involved with program evaluation /management information processing. You state that you have no official responsibilities to copmunicate with the public. You have been in the same position for the last 13 years and have never completed a Statement of Financial Interests. You ask that your name be removed from the yearly requirement. You have submitted copies of various memoranda from Mr. Terrence L. Spaar, Director .of Personnel at OVR, dated from 1990 to 1992, which pertain to your prior appeals: tom that office from the requirement to file Statements of Financial interests. It Mr. Andrew Chopak August 10, 1992 Page 2 would appear that as to prior .calendsr years awaiver was granted to you, but that by ,a memorandum dated July 1A., 1992, you were advised that your classification was subject to the filing requirements. Pursuant to that atemorAndum, _ you have filed this Appeal as to the filing requirements of +the Ethics Law. In order .t4 review the question presented, we will briefly outline the duties and responsibilities associated with your position as contained in ,your 9b des*r.pt1an for -this position. Copies of your job description and organizational chart have been obtained from OVR, which docents are incorporated herein by reference. It is noted that 4ccording to the incorporated documents and the Financial Disclosure Appeal ._ form which you have sub?aitted, you are classified as a Prom Analyst III with a position title of Supervisor of the Evaluation Unit. An employee in this position -works under the direction of the Administrator of the Po.tacy, Pla nisi and Evaluation section of OVR. 'Phe Program Analyst III (Supervisor of the evaluation Unit) supervises ttb analysts in conducting system analysis studies and program auditing in the following ar{ee.ss (1) the :goals and Objectives of the agency; (2) the impact and effectiveness of the pr (3) the efficiency of t }e pr n nagement; . 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 moking. Examples of the work of an employee in your position inclpds, but are not limited to, the following: Reviewing the work of subordinate analysts and developing fErKi44M140ering training programs to field staff at the levels of district administration, rehabilitation supervisors, and rehabilitation counselors; 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 . sta goal.§ and objectives; Preparing Federal° Evaluation R®ports resulting from the evaiva.t 4n o;f gAisting PrWraMs to determine the extent tp: '17444.h. stated goals, objectives and needs served by the prca,graia are being {het; 4. Preparing pajar segments of reports and drafting recommendOions for program planning and systems analysis; 1. • Mr. Andrew Chopak August 10, 1992 Page 3 5. Assessing district office progress and making recommendations for acti 7. Working as a- member of the Policy, Planning &.Evaluation analytic team on special assignments; and .. in areas not ti Developing new evaluation information .previously addressed to: (a) Develop new evaluation capacity; (b) Evaluate the impact of federal regulations; c . (c)'. Evaluate program goals and -objectives; and (d) Makes the VR program more effective and efficient Discussion:_ The question to be answered is whether-you, in your capacity as a Program Analyst III with the title of Supervisor .of the Evaluation. Unit for the Office of Vocational Rehabilitation (OVR), are to be considered a "public employee." The Ethics Law defines that term as follows: Section 2. Definitions "Public employee." Any the Commonwealth or a who is responsible for official action of a with regard to: individual employed by political subdivision taking or recommending nonministerial nature contracting or procurement; administering or monitoring grants or subsidies; - planning or zoning; inspecting, licensing, regulating or auditing any person; or 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 individ- `uals 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 Conmission similarly Mr. Andrew Chopak Augeat. . 10, 1992 Pit "fje 4 ;e define the term public employee as above and also set forth that the term includes any individuals (B) Who meets the criteria of either subclause (1) or (t1)': -(I) The individual is: (a) a person, `normally performs his responsibility in the field without on- site supery ;q ,pri; (b) the 4,4cumediate _Tupervisor of a person who noinal 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 reconun ,ndAti.Qris from bo=le sent to the ' pe ,rson • or body w4Ah the authority - ro make final decisions; (3) prepares or supervises the preparation of final.- recommen- dations; or (4) makes final technical recommen datidns ; a41.d (b) whose actions' are arx i.nherent and recurring . pax cf_ iis ,pQAitiou; and (2 affect organizations other than, his win ( The term does no.t i{nc.1ude individuals: who b the o fth o a are employet�, x recommendations or Mr. Andrew Chopak August 10, 199.2 Page 5 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 workers, maintenance workers; construction workers, detectives, equipment operators, and recreation directors. Mr. Andrew Chopak August,10, 1992 Page 6 51 Pa. Code 51.1. (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 your duties and obligations as described in your job desdr,gtiQn under which you operate. The inquiry necessarily foctt'sTes ` on the job itself and not on the individual incumbent in the position, the variable functions of the position, or the manner in � i .qh a . particular individual occupying a position may carry out ,thos6 functions See Phillips v. State Ethics Commission, `?9 Pa. Qmwlth. 49 470 A.2d . 659 x(1984); and < Mummau v. Ranck, 531 Fed. Supp. 402 (E.D.., 1982). Also, in reviewing your question, the Commonwealth Court in its ruling in Phillips, supra., at page 661, directs that coverage of the Bthic.s Act ' -b "construed .broadly, rather than narrowly, and conversely, °d_ ects that exclusions from the Ethics Law should be narrowly construed. 445d,upon this directive and reviewing definition of ",public`en in the statute and the regulations and opinions of Commission, in light of your job functions and the information ava labie to us, the necessary conclusion is that you are a` "public empiQ sub ject to the finan iai. reporting and disclosire requirements of the Ethics ,aw. It is clear that in your capacity as a Program Analyst III holding the position of Supervisor of the Evaluation Unit for OVR, you have the ability to recommend official action with respect to subparagraph (5) within the def of "public employee" as set forth in the Ethics Law, 45 P.S. 5402. Specifically, you determine and measure the mpactthe program is having upon clientele served by the VR program; develop quantitative criteria to measure the effectiveness of stated goals and objectives; and draft recbmniendatiPns for prOgram punning and systems analysis. You assess diitri t - offic9 progress . and make recommendations for actions; - AddtfionallY, yon s upe r vise two subordinate analysts. You develop dm ainis in ter training prog to field staff at the I vel ' d�si: j t adzninist at o i, ' rehabiiitati.an supervisors, and rehabilitatio c5 nselors,, an d You are a member of the Policy, �i P�x�ni:n$ y. " _ hnd � analytic team working o special assig'finefts : These activities fall within the definition of public eili S1 yse° as contained- in the regulations of the Commission in Section 1:1, subparagraph (B) (II) . 5 }. B#. Co 1.1 Under these circumstances and given your duties and responsibilities as Mr. Andrew Chopak August 10, 1992 Page 7 outlined above, you are a "publ employee" as that term is defined in the Ethics Law. Conclusion: You are to be considered a "public employee" in your capacity as a Program Analyst= III holding the position of Supervisor of the Evaluation Unit for the Office of Vocational Rehabilitation. Accordingly, you must file a Statement of Financial Interests for each year in which you hold the position outlined above and for the year following your termination of this service. If you have not already done so, a Statement of Financial Interests must be filed within 15 days of this Advice. This Statement 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, Vincent J. Dopko Chief Coun?se:.