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HomeMy WebLinkAbout10-593 Killen ADVICE OF COUNSEL June 30, 2010 Kimberly Killen P.O. Box 199 Bendersville, PA 17306 10-593 Dear Ms. Killen: This responds to your Financial Disclosure Appeal form received by the Pennsylvania State Ethics Commission on May 17, 2010, which will be treated as a request for advice from the State Ethics Commission. Issue: Whether, as an Accountant 3 with the Executive Offices, Office of the Budget under job code 03040, you 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. Facts: You seek a determination as to whether, in your capacity as an Accountant 3 with the Executive Offices, Office of the Budget under job code 03040, you are 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 you are required to file Statements of Financial Interests (“SFIs”). You have submitted copies of your official Commonwealth position description and the job classification specifications for the position of Accountant 3, job code 03040, which documents are incorporated herein by reference. Per your official Commonwealth position description, you have enterprise-level responsibility for assigned Commonwealth funds, programs, enterprises, operations, grants, subgrants or agencies in accordance with the overall office mission to provide a cost-effective uniform system of accounting and financial controls to ensure accountability of government funds. Your duties and responsibilities include the following: ? Overseeing large and difficult transactions and funds, with responsibility for the largest and most complex fund types; ? Interpreting laws and regulations as well as new or existing accounting standards to ensure that activities are being properly recorded and reported; Killen, 10-593 June 30, 2010 Page 2 ? Recommending establishment of Commonwealth accounting controls and financial review trails to higher level accounting staff or management; ? Recommending significant modifications for accounting and related improvements; ? Developing new and revised procedures to improve efficiency; ? Assessing scope and cause of errors in financial records, and determining and taking corrective action; ? Assessing internal controls and devising and communicating or implementing procedures to address or mitigate identified risks; ? Verifying source documents for accuracy, completeness, authorization and coding; ? Analyzing budgets in accordance with budgetary guidelines, monitoring budgetary compliance, and resolving areas of deficiency with the agency; ? Reviewing cash draw downs, related adjustments, and interagency billings; ? Monitoring loans and repayment; ? Monitoring and analyzing fixed asset transactions. Position Description, at 2-5. Per the job classification specifications under job code 03040, an Accountant 3: ? Has responsibility for the analysis of complex financial statements and transactions and the preparation of documentation, financial statements and reports to control and account for state funds; ? Supervises a staff of professional, technical, or clerical employees who maintain accounting records and prepare related reports and financial statements; ? Performs the accounting operations for a complex program or fund or a number of varied programs or funds; ? Supervises the preparation and approval of adjustment transactions; ? Examines financial data submitted by business enterprises subject to state regulations and prepares analytical accounting reports; ? Prepares analytical accounting reports and budgetary projections for program personnel and central accounting agencies; and ? Assists in the installation and modification of electronic or automatic data processing systems. Job classification specifications, at 1. Per your Position Description, you generally handle your assignments with minimal supervision, and your position requires significant independent thinking and problem solving skills. Position Description, at 2. On your Financial Disclosure Appeal form, you state, inter alia, that you are not responsible for taking or recommending official action of a nonministerial nature that would bring you within the definition of “public employee” as set forth in the Ethics Act and that you do not supervise any employees. 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. Killen, 10-593 June 30, 2010 Page 3 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. (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. Killen, 10-593 June 30, 2010 Page 4 (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 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 Killen, 10-593 June 30, 2010 Page 5 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. Cmwlth. 1984); Eiben, Opinion 04-002;Shienvold, Opinion 04-001; Shearer, Opinion 03-011. The Commonwealth Court of Pennsylvania has specifically considered and approved the 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 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. In applying the objective test in the instant matter, the necessary conclusion is that, in your capacity as an Accountant 3 with the Executive Offices, Office of the Budget under job code 03040, you are a "public employee" subject to the Ethics Act and the Regulations of the Commission, and in particular, the requirements for filing SFIs pursuant to the Ethics Act. As an Accountant 3 under job code 03040, you have 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. Specifically, the following duties and authority set forth in the official Position Description and the job classification specifications under job code 03040 would be sufficient to establish your status as a “public employee” subject to the Ethics Act: ? Overseeing large and difficult transactions and funds, with responsibility for the largest and most complex fund types; ? Recommending establishment of Commonwealth accounting controls and financial review trails to higher level accounting staff or management; ? Recommending significant modifications for accounting and related improvements; ? Determining and taking corrective action as to errors in financial records; ? Assessing internal controls and devising and communicating or implementing procedures to address or mitigate identified risks; ? Verifying source documents for accuracy, completeness, authorization and coding; ? Monitoring budgetary compliance and resolving areas of deficiency with the agency; ? Reviewing cash draw downs, related adjustments, and interagency billings; ? Supervising a staff of professional, technical, or clerical employees who maintain accounting records and prepare related reports and financial statements; ? Supervising the preparation and approval of adjustment transactions; and ? Examining financial data submitted by business enterprises subject to state regulations and preparing analytical accounting reports. Killen, 10-593 June 30, 2010 Page 6 The foregoing duties/authority would also meet the criteria for determining your 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 as an Accountant 3 with the Executive Offices, Office of the Budget under job code 03040, you are 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 SFIs pursuant to the Ethics Act. Cf., Lewis, Advice 84-516. Conclusion: As an Accountant 3 with the Executive Offices, Office of the Budget under job code 03040, you are 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 Pennsylvania State Ethics Commission, and in particular, the requirements for filing Statements of Financial Interests pursuant to the Ethics Act. Accordingly, you must file a Statement of Financial Interests each year in which you hold the aforesaid position and the year following termination of such service. 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