HomeMy WebLinkAbout10-503 Howard
ADVICE OF COUNSEL
January 6, 2010
Ralph J. Teti, Esquire
Willig, Williams & Davidson
Twenty-Fourth Floor
1845 Walnut Street
Philadelphia, PA 19103
10-503
Dear Mr. Teti:
This responds to your letters dated October 26, 2009, and November 12, 2009,
by which you requested an advisory from the Pennsylvania State Ethics Commission.
Issue:
Whether an individual employed as an Accounting Supervisor with the City
of Philadelphia Police Department under job class specification 2A07 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, 51 Pa. Code § 11.1 et seq., and particularly, the requirements for filing
Statements of Financial Interests.
Facts:
You have been authorized by Liz Howard (“Ms. Howard”) to request an
advisory from the Pennsylvania State Ethics Commission on her behalf. You have
submitted facts, the material portion of which may be fairly summarized as follows.
Ms. Howard is employed as an Accounting Supervisor with the City of
Philadelphia (“City”) Police Department under job class specification 2A07. You have
submitted a copy of job class specification 2A07 for Ms. Howard’s position as an
Accounting Supervisor, which document is incorporated herein by reference.
Job class specification 2A07 provides, in pertinent part, as follows:
GENERAL DEFINITION
This is departmental accounting work at the first supervisory level directing
and participating in the work of accounting and clerical personnel engaged
in recording, adjusting, categorizing, summarizing, and analyzing financial
data needed to facilitate financial planning and control by municipal
agencies. Employees in this class train subordinates in city-wide and
departmental accounting procedures, directives, and guidelines, assign
and review the maintenance, adjustment, and analysis of accounting
records, and prepare and review statistical compilations of accounting
data as well as narrative reports. The work may include responsibility for
accounting information system development requisite to departmental
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January 6, 2010
Page 2
operations and management needs. Supervising an accounting and
clerical staff is a major aspect of the work. Employees in this class report
to a technical or administrative supervisor.
----------------------------------------------------
TYPICAL EXAMPLES OF WORK (ILLUSTRATIVE ONLY)
Plans, assigns, reviews, and participates in the work of accounting
personnel engaged in recording, adjusting, categorizing,
summarizing, and analyzing financial data; ensures that accounting
entries, adjustments, and totals are prepared accurately and
recorded in accordance with departmental and city-wide
procedures and directives.
Trains accounting staff in the principles and practices of municipal
accounting, departmental and city-wide procedures used to record
and transmit financial data, and legal requirements and
administrative regulations applicable to the City’s accounting
system; explains City and departmental forms and reporting
formats to accounting personnel.
Supervises the gathering and compilation of supporting detail for
computing invoices, tax, and public service billings, the calculation
of liabilities, the preparation of original and adjusted billings, and
the entering of billing information into computer and manual files.
Supervises and/or participates in the development and modification of
accounting systems; works with data processing personnel to
computerize departmental accounting control systems and to
modify existing computerized accounting records; determines the
format of records of accounts.
Supervises a clerical staff engaged in the posting, entering, and
maintenance of departmental and personal (e.g., inmates’,
patients’, or lessees’) accounts.
Establishes procedures and formats to record charges for reimbursement
by federal, state, and quasi-governmental agencies; supervises and
participates in the preparation of statements, reports, and invoices
for submission to funding or oversight agencies.
Performs and assigns to subordinate accountants the statistical analysis
of summarized accounting data to determine trends, estimates, and
significant changes; prepares narrative reports to explain findings.
Prepares comprehensive statements on the activities of accounting
entities including data on revenue, receivables, encumbrances and
expenditures, and special accounts.
Analyzes statements and ledgers to prepare cash flow forecasts and
estimates; prepares special reports on account receivables
detailing the effect or proposed changes in city revenue laws.
Performs related work as required.
. . . .
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January 6, 2010
Page 3
Job Class Specification 2A07, at 1-2.
You state that in her role as an Accounting Supervisor with the City Police
Department, Ms. Howard supervises two employees. In turn, Ms. Howard is supervised
by a Budget Officer 2.
You state that Ms. Howard is responsible for accounting for overtime of police
officers, and she handles paperwork for transfer expenditures for police officers working
out of class. In addition, Ms. Howard: (1) provides accounting for a charity fund,
ensuring that dollar amounts provided by officers equal the deposits; (2) handles checks
received from special events sponsors, preparing the paperwork and sending it to
administration; and (3) gets voucher forms from a unit handling informants, matches
dollar amounts to those forms, and gives cash to the Lieutenant who runs the unit.
You assert that Ms. Howard has nothing to do with budgets or expenditures of
Police Department funds and does not have the authority to make final decisions or to
forward or stop recommendations from being sent to final decision makers. You further
assert that an individual employed in the position of Accounting Supervisor: (1) is not
responsible for taking or recommending official action of a non-ministerial nature that
would bring such individual within the definition of “public employee” as set forth in the
Ethics Act; (2) is not the supervisor of the highest level in the department or division in
which such individual works; and (3) does not make recommendations or take such
actions that would affect other departments, divisions or commissions within the City.
Based upon the above, you ask whether Ms. Howard, in her position as an
Accounting Supervisor with the City Police Department under job class specification
2A07, would be considered a public employee subject to the Ethics Act, and in
particular, the requirements for filing Statements of Financial Interests pursuant to the
Ethics Act.
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, the 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
Teti/Howard, 10-503
January 6, 2010
Page 4
(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.
Teti/Howard, 10-503
January 6, 2010
Page 5
(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 an
objective test. The objective test applies the Ethics Act’s definition of the term “public
employee” and the related regulatory 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. The objective test considers what an individual
has the authority to do in a given position based upon these objective sources, rather
than the variable functions that the individual may actually perform in the position. See,
Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Commw. Ct. 1984); Eiben,
Opinion 04-002;Shienvold, Opinion 04-001; Shearer, Opinion 03-011. The
Commonwealth 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.
The first portion of the statutory 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
Teti/Howard, 10-503
January 6, 2010
Page 6
forward or stop recommendations from being sent to final decision-makers; individuals
who prepare or supervise the preparation of final recommendations; individuals who
make final technical recommendations; and individuals whose recommendations are an
inherent and recurring part of their positions. See, e.g., Reese/Gilliland, Opinion 05-
005.
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 Ms. Howard’s duties and responsibilities, the necessary conclusion is that in her
position as an Accounting Supervisor with the City Police Department under job class
specification 2A07, Ms. Howard is a "public employee" subject to the Ethics Act, including
the financial reporting and disclosure requirements of the Ethics Act.
It is clear that in her capacity as an Accounting Supervisor under job class
specification 2A07, Ms. Howard has the ability to take or recommend official action of a
nonministerial nature with respect to subparagraph (5) within the definition of “public
employee” as set forth in the Ethics Act, 65 Pa.C.S. § 1102. The following duties and
authority establish Ms. Howard’s status as a public employee:
?
Supervising accounting and clerical staff;
?
Supervising the gathering and compilation of supporting detail for computing
invoices, tax, and public service billings, the calculation of liabilities, the
preparation of original and adjusted billings, and the entering of billing information
into computer and manual files;
?
Establishing procedures and formats to record charges for reimbursement by
federal, state, and quasi-governmental agencies; supervising and participating in
the preparation of statements, reports, and invoices for submission to funding or
oversight agencies;
?
Accounting for overtime of police officers and handling paperwork for transfer
expenditures for police officers working out of class;
?
Providing accounting for a charity fund, ensuring that dollar amounts provided by
officers equal the deposits;
?
Handling checks received from special events sponsors, preparing the
paperwork and sending it to administration; and
?
Getting voucher forms from a unit handling informants, matching dollar amounts
to those forms, and giving cash to the Lieutenant who runs the unit.
The foregoing duties/authority would also meet the criteria for determining Ms.
Howard’s status as a public employee under the Regulations of the State Ethics
Commission, specifically at 51 Pa. Code § 11.1, “public employee,” subparagraphs (i)
and (ii).
Therefore, you are advised that in her position as an Accounting Supervisor with
the City Police Department under job class specification 2A07, Ms. Howard is a “public
employee” subject to the provisions of the Ethics Act and the Regulations of the State
Ethics Commission, and in particular, the requirements for filing Statements of Financial
Interests pursuant to the Ethics Act.
Conclusion:
As an Accounting Supervisor with the City of Philadelphia Police
Department under job class specification 2A07, Liz Howard is 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, 51 Pa. Code § 11.1 et
Teti/Howard, 10-503
January 6, 2010
Page 7
seq., and in particular, the requirements for filing Statements of Financial Interests
pursuant to the Ethics Act.
Pursuant to Section 1107(11) of the Ethics Act, 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 requester 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,
Robin M. Hittie
Chief Counsel