HomeMy WebLinkAbout06-003 CowdenDear Mr. Cowden:
I. ISSUE:
OPINION OF THE COMMISSION
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Paul M. Henry
Raquel K. Bergen
Nicholas A. Colafella
Reverend Scott Pilarz
DATE DECIDED: 2/23/06
DATE MAILED: 3/13/06
06 -003
James L. Cowden, Esquire
Strokoff & Cowden, P.C.
132 State Street
P.O. Box 11903
Harrisburg, PA 17108 -1903
Re: Public Employee; Statement of Financial Interests; Department Chairperson;
University; State System of Higher Education.
This Opinion is issued in response to your letter dated August 17, 2005, your
faxed transmission received September 8, 2005, and your letter dated October 19,
2005, by which you requested advice from the State Ethics Commission.
Whether a department chair at a university that is part of the State System of
Higher Education would 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.
II. FACTUAL BASIS FOR DETERMINATION:
As counsel to the Association of Pennsylvania State College and University
Faculties (APSCUF), which represents the faculty members of the State System of
Higher Education (SSHE), you seek an advisory opinion from the State Ethics
Commission at the request of APSCUF and Professor Susan Bentley (Professor
Bentley), an APSCUF member. Based upon the following submitted facts, you ask
whether Professor Bentley would be considered a "public employee" subject to the
Ethics Act and particularly, the requirements for filing Statements of Financial Interests.
Cowden, Opinion 06 -003
March 13, 2006
Page 2
Professor Bentley is Chair of the Computer Science Department (Department) at
Cheyney University (University) of the SSHE. You state that there is no formal job
description for Professor Bentley's position as Department Chair. However, you have
submitted a copy of Article 6.A of the current APSCUF Collective Bargaining Agreement
with the SSHE (Collective Bargaining Agreement), which provides in pertinent part as
follows:
A. Duties
Article 6
DEPARTMENT CHAIRPERSONS
1. The department chairperson directs the
activities of the department, subject to the approval of the
Dean /Director. He /she is responsible to the Dean /Director
for the development of department plans, guidelines and
internal office operation; he /she directs the department's
administrative organization and may delegate authority and
assign responsibility as appropriate; and he /she represents
the academic discipline both on and off campus either
personally or by designation of department representatives.
2. The department chairperson is also
responsible for recommending to the Dean /Director such
matters as personnel actions, curricular changes, course
offerings, teaching assignments and the department budget.
Collective Bargaining Agreement, Art. 6.A.
You state that Professor Bentley's general duties as Department Chair involve
administration of an academic department, rather than expenditures of money.
However, you note that Professor Bentley does have some involvement in the
expenditure of funds allocated to or requested by the Department during the course of
the year.
First, the Department receives an allocation of between $1,000 and $3,000 per
year from the University. The University tells the Department in what areas the
Department may spend the money and what percent of the budget it can spend on
certain items, such as office supplies, computer equipment, textbooks, and travel for
conferences. The Department receives funds for these items, and for each category, the
three members comprising the Department meet to decide what to buy. Professor
Bentley fills out an APR form requesting an allocation of money from the University.
The request goes to the Offices of the Dean, Provost and Vice - President of Finance for
approval. The request then goes to the purchaser, who actually purchases the item.
You state that it is not uncommon for the request to be disapproved at any step in the
process or for someone in the process, specifically the purchaser, to request the
Department to change the brand name or type of item ordered, in order to save money.
You further state that Professor Bentley's involvement in the purchasing process
amounts to approximately five hours per year.
Second, the Department receives $1,500 per year from the "Education Service
Fee Fund" to be used for very limited purposes. Any use of this money must go through
the same process described above.
Finally, Professor Bentley and her Department may request funds from the
"Technology Fund" by submitting a request to the Provost for items such as new
Cowden, Opinion 06 -003
March 13, 2006
Page 3
computers. The Provost determines whether requests for funds from the Technology
Fund shall be granted.
You state that Professor Bentley does not have the power to purchase anything
directly and does not have the use of a University credit card.
You question whether faculty members at universities that are part of the SSHE
are considered to be "employed by the Commonwealth or a political subdivision." You
contend that the SSHE is not a "political subdivision," and you question whether it is the
Commonwealth, referencing a footnote in the case of Conference of Pennsylvania
College Police Officers, Fraternal Order of Police v. Pennsylvania Labor Relations Bd.,
113 Pa. Commw. 431, 537 A.2d 108 (1988).
You also question whether Professor Bentley falls within the exception to the
definition of "public employee" for "individuals who are employed by this Commonwealth
or any political subdivision thereof in teaching as distinguished from administrative
duties." 65 Pa.C.S. § 1102. You maintain that Professor Bentley spends 75% of her
time as a faculty member teaching classes. You state that her only non - teaching duties
are to serve as Department Chair.
Based upon the foregoing facts, you ask whether Professor Bentley is 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.
By letters dated November 9, 2005, and January 25, 2006, you were notified of
the dates, times and locations of the first and second public meetings at which your
request would be considered. You were present with Professor Bentley at the first
public meeting, which was held December 12, 2005. Another attorney from your firm
was present and Professor Bentley participated by telephone at the second public
meeting, which was held February 23, 2006.
At the public meeting on December 12, 2005, you and Professor Bentley offered
commentary, which may be fairly summarized as follows.
The SSHE consists of fourteen (14) universities. Each university is organized
into academic departments. A department is a group of faculty members who are
generally in the same or related disciplines. In the instant matter, the University has
twelve (12) academic departments.
Department chairs are selected through a process that begins with a particular
department nominating interested persons to the President of the University. The
President then designates who among those persons are acceptable. From the
President's pool, the department then elects its chair.
The department chair's compensation consists of a small stipend and excusal
from teaching a portion of the normal teaching load. Professor Bentley as Department
Chair is excused from teaching one course per semester.
A department makes decisions on several different subjects including purchasing
and hiring and evaluation of other faculty members.
With regard to purchasing, you state that purchases must be processed through
many layers before the purchases are actually made. The University administration
initially designates a certain amount of money for each academic department to be used
for internal matters. You state that Professor Bentley's Department, being a relatively
small department, has received approximately between $1,000 and $3,000 to be used
to purchase items such as office supplies and equipment. Some of these items are
maintained by and purchased from the "University central supply organization." If a
Cowden, Opinion 06 -003
March 13, 2006
Page 4
department needs 10 reams of paper, for example, it transmits that request to the
University central supply organization, which then sends the reams of paper to the
department and charges the department budget for that request. If a department needs
a copier, the University determines which copier to obtain for the department and then
charges the service contract to the department budget. If a department wants
something that is not on hand at the University, the department will specify to the
University what it wants and how much the item will cost. The department chair signs
the purchase order, which then goes to the Dean, who passes it on to the Provost of the
University. The request is then signed /approved by the Comptroller and the Vice
President for Finance and Administration. Finally, the request is forwarded to the
Purchasing Agent who may or may not purchase the item requested by the department.
You state that departments also receive allocations for educational services from
"student activity money," which may only be used for things that would benefit a student.
For example, a department would not be permitted to use student activity money to
purchase a computer for the department secretary, but could use that money to
purchase a computer for student use.
You state that Professor Bentley's Department, like most academic departments,
does not administer grants.
With regard to the hiring of professors, you state that the process begins with the
department developing a job description and requirements for the position. The position
is typically advertised in national publications. Upon receipt of applications, the
department including the chair screens the applications, determines which applicants
will be interviewed, and invites those selected individuals to the campus for an
interview. After the interviews are completed, the department chair and the
department's hiring committee make separate recommendations to the University
administration. The hiring process involves the Dean, Provost, Vice President for
Academic Affairs, and finally the University President who actually hires the person.
As to evaluations, you state that the department chair and the department
evaluation committee initially perform evaluations to determine tenure or promotion.
Recommendations are passed on through multiple individuals including a University
committee of faculty, University promotions committee, University tenure committee,
Dean, Provost, and President, with the latter making the final decision.
Finally, you state that faculty members sometimes receive grants from the
University for special purposes such as attending meetings /conferences. The
department chair signs off on such requests, which are processed through the Dean
and Vice President for Academic Affairs.
At the December meeting, you provided to this Commission the aforesaid
Collective Bargaining Agreement. However, we deferred this matter so that you could
submit any additional information regarding Professor Bentley's duties and authority as
Department Chair.
On February 8, 2006, this Commission received your Letter Brief dated February
8, 2006; Exhibits A — E, consisting of purchase related documents appearing to show
Professor Bentley's signature as one of multiple required signatures; and Exhibit F,
pages 1 -37, consisting of the Cheyney University of Pennsylvania Business Support
Services Purchasing and Contract Administration Policy (Policy).
In your Letter Brief, you first question whether the SSHE is the "Commonwealth,"
referencing the following cases: Conference of Pennsylvania College Police Officers,
Fraternal Order of Police v. Pennsylvania Labor Relations Bd., 113 Pa. Commw. 431,
537 A.2d 108, n. 4 (1988); Board of Governors of the State System of Higher Education
v. PLRB, 99 Pa. Commw. 520, 514 A.2d 223 (1986); and Conference of Pennsylvania
Cowden, Opinion 06 -003
March 13, 2006
Page 5
College Police Lodges of the Fraternal Order of Police v. PLRB, 760 A.2d 1233 (Pa.
Commw. 2000). You contend that if the SSHE is not the "Commonwealth," then the
Ethics Act does not apply to department chairs.
You then argue that even if the SSHE is to be considered the "Commonwealth,"
a department chair is not a "public employee" because such an individual 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 Ethics Act's definition of the term
"public employee." You cite this Commission's decisions in Salandria, Opinion 96 -003
and Casey, Opinion 80 -049 in support of this argument.
You note that faculty members in the SSHE work under the Collective Bargaining
Agreement. You state that this means that department chairs have no role in granting
pay increases to faculty. You state that the role of department chairs in other personnel
matters such as hiring and promotion is "circumscribed" by the Collective Bargaining
Agreement.
With regard to contracting or procurement, you contend that the duties of a
department chair as set forth in the Collective Bargaining Agreement do not describe
any authority that would bring Professor Bentley within this category of the definition of
"public employee." You state that any matters pertaining to the departmental budget
generally are to be recommended to the Dean /Director. You further state that pursuant
to the Policy, departments and department chairs have minimal participation. You state
that department chairs are at the bottom of the pyramid of decision makers and are not
given any specific responsibility under the Policy. As Department Chair, Professor
Bentley may requisition office supplies at the on- campus supply store, which purchases
are subject to at least four authorizations and are charged to the Department's budget.
With respect to purchases or service contracts, you state that Professor Bentley's role is
limited to drafting a request based upon a recommendation from the Department. The
request passes through several other individuals including the Dean, Provost,
Controller, and finally the Vice President for Finance and Administration. The
Purchasing Office authorizes a "purchase order" and ultimately decides where to
purchase the item or with whom to contract. Based upon the foregoing, you contend
that Professor Bentley's authority to procure, purchase or contract is so attenuated, it is
de minimis.
You state that Professor Bentley has no role in administering or monitoring
grants, planning or zoning, or inspecting, licensing or auditing any person.
You note that the Collective Bargaining Agreement requires department chairs to
make recommendations to the Dean /Director regarding matters of personnel action.
However, you state while Professor Bentley participates in matters relating to
appointment, performance evaluation, renewal /non - renewal, tenure, promotion, and
sabbatical, her role is minimal and the final decision as to personnel matters lies with
the President or his /her designee.
You further state that Professor Bentley lacks any direct supervisory powers over
any other individuals and only serves as a "consensus builder" and "liaison' rather than
a supervisor. You contend that if department chairs are to be considered public
employees required to file Statements of Financial Interests based wholly upon their
minimal participation in the personnel actions of the institution, then nearly all faculty at
the institution would also be required to file Statements of Financial Interests.
Finally, you argue that Professor Bentley has no authority of greater than a de
minimis nature to take or recommend nonministerial action within the University.
Cowden, Opinion 06 -003
March 13, 2006
Page 6
Based upon the above, you contend that Professor Bentley is not a "public
employee" as defined by the Ethics Act and therefore is not required to file Statements
of Financial Interests pursuant to the Ethics Act.
III. 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 requester based upon
the facts that the requester has submitted. In issuing the advisory based upon the facts
that the requester has submitted, this Commission does not engage in an independent
investigation of the facts, nor does it speculate as to facts that have not been submitted.
It is the burden of the requester 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 requester has truthfully disclosed all of the material facts.
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.
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.
Cowden, Opinion 06 -003
March 13, 2006
Page 7
(C) office.
(D)
decisions.
The individual is the supervisor of a highest level
The individual has the authority to make final
(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.
(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.
Cowden, Opinion 06 -003
March 13, 2006
Page 8
(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.
The following terms are relevant to your inquiry and are defined in the Ethics Act
as follows:
§ 1102. Definitions
"Ministerial action." An action that a person
performs in a prescribed manner in obedience to the
mandate of legal authority, without regard to or the exercise
of the persons own judgment as to the desirability of the
action being taken.
"Nonministerial actions." An action in which the
person exercises his own judgment as to the desirability of
the action taken.
65 Pa.C.S. § 1102.
In order for an individual to be considered a "public employee" subject to the
Ethics Act, the individual must stand in an employer - employee relationship with the
Commonwealth or a political subdivision of the Commonwealth. Ver Ellen, Opinion 03-
005. Additionally, the individual must be responsible for taking or recommending official
action of a nonministerial nature with regard to one or more of the following: 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. 65 Pa.C.S. § 1102. The definition of
"public employee" excludes individuals who are employed by the Commonwealth or a
political subdivision in teaching as distinguished from administrative duties, but does not
exclude individuals who engage in both teaching and administrative duties that fall
within the definition.
Status as a "public employee" subject to the Ethics Act is determined by an
objective test, which applies the statutory and regulatory definitions and criteria to the
powers and duties of the position itself. Typically, the powers and duties of the position
are established by objective sources that define the position, such as the job
description, job classification specifications, and organizational chart. Thus, the
objective test considers what an individual has the authority to do in a given position,
rather than the variable functions that the individual may actually perform in that
position. See, Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984);
Eiben, Opinion 04 -002; Shienvold, Opinion 04 -001; Shearer, Opinion 03 -011. The
C ommonwealth Court of Pennsylvania has specifically considered and approved this
Commission's objective test and has directed that coverage under the Ethics Act be
construed broadly and that exclusions under the Ethics Act be construed narrowly. See,
Phillips, supra.
Cowden, Opinion 06 -003
March 13, 2006
Page 9
With respect to the first portion of the definition, you question whether SSHE is
the "Commonwealth." Referencing various cases (Conference of Pennsylvania College
Police Officers, Fraternal Order of Police v. Pennsylvania Labor Relations Bd., 113 Pa.
Commw. 431, 537 A.2d 108, n. 4 (1988); Board of Governors of the State System of
Higher Education v. PLRB, 99 Pa. Commw. 520, 514 A.2d 223 (1986); and Conference
of Pennsylvania College Police Lodges of the Fraternal Order of Police v. PLRB, 760
A.2d 1233 (Pa. Commw. 2000)), you contend that if the SSHE is not the
"Commonwealth," then the Ethics Act does not apply to Professor Bentley as a
University Department Chair.
Having reviewed numerous cases, it would appear to this Commission that the
analysis of whether a particular body is to be considered part of the "Commonwealth"
may vary depending upon which law is applied.
All of the cases you have referenced are collective bargaining cases, and thus,
are distinguishable on their facts. The case of Board of Governors of the State System
of Higher Education v. PLRB, 99 Pa. Commw. 520, 514 A.2d 223 (1986) is simply not
on point because it involved the issue of whether the SSHE should be designated as
the public employer of the professional and managerial employees of the state colleges
and Indiana University of Pennsylvania. In Conference of Pennsylvania College Police
Officers, Fraternal Order of Police v. Pennsylvania Labor Relations Bd., 113 Pa.
Commw. 431, 537 A.2d 108 (1988), the issue was whether police officers employed at
the universities that comprise the SSHE had the right to bargain collectively under the
Policemen and Firemen Collective Bargaining Act, 43 P.S. §§ 217.1 -24.10 ( "Act 111").
The Commonwealth Court determined that Act 111, which provides that policemen
employed by a political subdivision of the Commonwealth or the Commonwealth are
given the right to bargain collectively, did not confer that right upon employees of the
SSHE because the SSHE, being an instrumentality of the Commonwealth, was not the
Commonwealth" for purposes of Act 111 jurisdiction. Similarly, in Conference of
Pennsylvania College Police Lodges of the Fraternal Order of Police v. PLRB, 760 A.2d
1233 (Pa. Commw. 2000), the rOP admitted that the SSHE was not subject to the
jurisdiction of the Pennsylvania Labor Relations Board under Act 111 because for
purposes of applying that Act, it is neither the Commonwealth nor a political subdivision.
There are other cases in which the courts have held that the institutions that
comprise the SSHE are state agencies owned and operated by the Commonwealth.
See, Dynamic StudenTServices v. State System of Higher Education, 548 Pa. 347, 697
A.2d 239 (1997); Williams v. West Chester State College, 29 Pa. Commw. 240, 370
A.2d 774 (1977).
In addition, there is longstanding Commission precedent that SSHE officials and
administrators, as well as faculty members who go beyond teaching to perform the
types of administrative duties performed by persons subject to the Ethics Act, are public
off /public employees subject to the Ethics Act. See, Weiss, Opinion 85 -001;
O'Hara, Jr., Opinion 89 -008; Richardson, Opinion 89 -017; Richardson, Opinion 93 -006;
Ambrose, Order 187 -S; Ganassi, Order 126 -S; Hussain, Order 167 -S.
Based upon the foregoing, we determine that for purposes of the Ethics Act,
Professor Bentley as a Department Chair at the University is an individual employed by
the Commonwealth.
With the first portion of the definition established, we must now determine
whether the second portion of the definition of "public employee" is also established as
to Professor Bentley in her capacity as a Department Chair at the University. As noted
above, we apply an objective test, which considers what an individual has the authority
to do in a given position, rather than the variable functions that the individual may
actually perform in that position. See, Philips v. State Ethics Commission, supra;
Cowden, Opinion 06 -003
March 13, 2006
Page 10
Shienvold, Opinion 04 -001; Shearer, Opinion 03 -011. In applying the objective test, we
are ever mindful of the judicial directive that coverage under the Ethics Act be construed
broadly and that exclusions under the Ethics Act be construed narrowly. Phillips, supra.
We have before us Article 6.A of the Collective Bargaining Agreement, which has
been submitted as the only formal document describing Professor Bentley's
powers /duties as a University Department Chair. That source provides in pertinent part
as follows:
A. Duties
Article 6
DEPARTMENT CHAIRPERSONS
1. The department chairperson directs the
activities of the department, subject to the approval of the
Dean /Director. He /she is responsible to the Dean /Director
for the development of department plans, guidelines and
internal office operation; he /she directs the department's
administrative organization and may delegate authority and
assign responsibility as appropriate; and he /she represents
the academic discipline both on and off campus either
personally or by designation of department representatives.
2. The department chairperson is also
responsible for recommending to the Dean /Director such
matters as personnel actions, curricular changes, course
offerings, teaching assignments and the department budget.
Collective Bargaining Agreement, Art. 6.A.
We also have before us the written and verbal narratives that you have
submitted, describing Professor Bentley's actions as Department Chair.
We note that the definition of "public employee" includes individuals with authority
to take or recommend official action of a nonministerial nature. 65 Pa.C.S. § 1102.
Likewise, the regulatory criteria for determining status as a public employee, as set forth
in 51 Pa. Code § 11.1( "public employee ")(ii), include not only individuals with authority
to make final decisions but also individuals with authority to forward or stop
recommendations from being sent to final decision - makers; individuals who prepare or
supervise the preparation of final recommendations; and individuals who make final
technical recommendations.
Through a straightforward application of the objective test, the necessary
conclusion —under either Article 6.A of the Collective Bargaining Agreement or under
the submitted narratives —is that as a Department Chair at the University, Professor
Bentley is a "public employee" subject to the Ethics Act. This is because as a
Department Chair at the University, Professor Bentley has the responsibility to take or
recommend official action of a nonministerial nature with respect to subparagraphs (1)
and (5) within the definition of "public employee" as set forth in the Ethics Act, 6
Pa.C.S. § 1102.
With respect to subparagraph (1), the definition of "public employee" includes any
individual employed by the Commonwealth who is responsible for taking or
recommending official action of a nonministerial nature with regard to contracting or
procurement. 65 Pa.C.S. § 1102. As a University Department Chair, Professor Bentley
is responsible for taking or recommending official action of a nonministerial nature with
Cowden, Opinion 06 -003
March 13, 2006
Page 11
regard to contracting or procurement. Professor Bentley has the power to recommend
which products or services the Department should purchase and to request allocations
of money from the University for such purchases and for other expenditures such as
travel to conferences. It is clear from the submitted facts that although Professor
Bentley does not act alone in the purchasing process, she plays a significant role
nonetheless, both as to recommending purchases and as to serving as one of the
required signatories authorizing purchases /expenditures.
With respect to subparagraph (5), the definition of "public employee" includes any
individual employed by the Commonwealth who is responsible for taking or
recommending official action of a nonministerial nature with regard to any other activity
where the official action has an economic impact of greater than a de minimis nature on
the interests of any person." 65 Pa.C.S. § 1102. Most significantly, Professor Bentley
is authorized to make recommendations to the Dean /Director regarding personnel
actions and the Department budget. Professor Bentley is also responsible for directing
the activities of the Department; developing Department plans, guidelines and internal
office operation; directing the Department's administrative organization; and delegating
authority and assigning responsibility.
Professor Bentley's above actions as Department Chair are nonministerial
because she exercises her own judgment as to the desirability of such actions.
The foregoing application of the objective test to Professor Bentley's powers and
duties as a Department Chair at the University clearly establishes Professor Bentley's
status as a "public employee" subject to the Ethics Act. We reject the proffered
argument that Professor Bentley would fall within the definition's exclusion for teachers.
As noted above, the definition of "public employee" excludes individuals who are
employed by the Commonwealth or a political subdivision in teaching as distinguished
from administrative duties, but does not exclude individuals who engage in both
teaching and administrative duties that fall within the definition. Therefore, the fact that
Professor Bentley spends 75% of her time teaching does not negate her status as a
public employee where her administrative duties establish that her position falls
squarely within the statutory definition and regulatory criteria for determining status as a
"public employee" subject to the Ethics Act.
Finally, we note that our decision in the instant matter is consistent with this
Commission's Regulations that governmental body department heads are typically
considered public employees subject to the Ethics Act. 51 Pa. Code § 11.1 (definition
of "public employee" (iv)(B)).
Based upon the above judicial directives, the provisions of the Ethics Act, this
Commission Regulations, and the Opinions of this Commission, in light of Professor
Bentley's duties and responsibilities, the necessary conclusion is that as a University
Department Chair, Professor Bentley is a "public employee" subject to the Ethics Act and
particularly the requirements for filing Statements of Financial Interests pursuant to the
Ethics Act.
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability of any other statute, code, ordinance, regulation or other code of
conduct other than the Ethics Act has not been considered in that they do not involve an
interpretation of the Ethics Act.
IV. CONCLUSION:
A department chair at a university that is part of the State System of Higher
Education who is responsible for taking or recommending official action of a
nonministerial nature with regard to subparagraphs (1) and (5) of the definition of "public
employee" as set forth in the Public Official and Employee Ethics Act (the "Ethics Act "),
Cowden, Opinion 06 -003
March 13, 2006
Page 12
65 Pa.C.S. § 1102, is a "public employee" subject to the Ethics Act and the Regulations
of the State Ethics Commission. Accordingly, such an individual must file a Statement
of Financial Interests each year in which the individual holds the position and the year
following termination of such service.
If such individual has not already done so, a Statement of Financial Interests
must be filed within 30 days of the mailing of this Opinion.
Act.
The propriety of the proposed conduct has only been addressed under the Ethics
Pursuant to Section 1107(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, a party 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 party requesting reconsideration must include a
detailed explanation of the reasons as to why reconsideration should be granted in
conformity with 51 Pa. Code § 21.29(b).
By the Commission,
Louis W. Fryman
Chair