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