HomeMy WebLinkAbout11-001 Killen
OPINION OF THE COMMISSION
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Raquel K. Bergen
Nicholas A. Colafella
Mark Volk
DATE DECIDED: 3/3/11
DATE MAILED: 3/11/11
11-001
Kimberly Killen
P.O. Box 199
Bendersville, PA 17306
Dear Ms. Killen:
This Opinion is issued in response to the appeal of Advice of Counsel 10-593,
which was issued on June 30, 2010.
I.ISSUE:
Whether an individual employed by the Commonwealth of Pennsylvania as an
Accountant 3 with the Executive Offices, Office of the Budget under job code 03040 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, and in particular, the requirements for filing Statements of Financial Interests
pursuant to the Ethics Act.
II.FACTUAL BASIS FOR DETERMINATION:
By letter dated July 26, 2010, you appealed Advice of Counsel 10-593, which was
issued on June 30, 2010.
Your initial advisory request presented facts that were summarized in the Advice of
Counsel as follows:
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.
Killen, 11-001
March 11, 2011
Page 2
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;
?
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
Killen, 11-001
March 11, 2011
Page 3
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.
Killen, Advice of Counsel 10-593, at 1-2.
Advice of Counsel 10-593 determined that in your capacity as an Accountant 3 with
the Executive Offices, Office of the Budget under job code 03040, you would be a "public
employee" subject to the Ethics Act and the Regulations of this Commission, and in
particular, the requirements for filing Statements of Financial Interests pursuant to the
Ethics Act. The Advice determined that you had the ability to take or recommend official
action of a non-ministerial nature that would satisfy subparagraph (5) within the statutory
definition of “public employee” (pertaining 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)), as well as the criteria set forth in this Commission’s
Regulations for determining status as a public employee, specifically at 51 Pa. Code §
11.1, “public employee,” subparagraphs (i) and (ii). The Advice specifically noted your
authority to: oversee large and difficult transactions and funds, with responsibility for the
largest and most complex fund types; recommend establishment of Commonwealth
accounting controls and financial review trails to higher level accounting staff or
management; recommend significant modifications for accounting and related
improvements; determine and take corrective action as to errors in financial records;
assess internal controls and devise and communicate or implement procedures to address
or mitigate identified risks; verify source documents for accuracy, completeness,
authorization and coding; monitor budgetary compliance and resolve areas of deficiency
with the agency; review cash draw downs, related adjustments, and interagency billings;
supervise a staff of professional, technical, or clerical employees who maintain accounting
records and prepare related reports and financial statements; supervise the preparation
and approval of adjustment transactions; and examine financial data submitted by
business enterprises subject to state regulations and prepare analytical accounting
reports.
Killen, 11-001
March 11, 2011
Page 4
By letter dated July 26, 2010, you appealed Advice of Counsel 10-593. Your appeal
letter did not state any particular basis for the appeal, but merely exercised the right to
appeal the Advice of Counsel.
The position description and the job classification specifications for the aforesaid
position (job code 03040) are incorporated herein by reference.
By letter dated August 17, 2010, you were notified that your appeal would be
considered at this Commission’s public meeting on October 19, 2010. However, by letter
dated September 17, 2010, you indicated that you had recently accepted another position
with the Commonwealth and wanted to reschedule this matter. By correspondence dated
September 24, 2010, you indicated that you would be serving in your new employment
position in October 2010.
At your request, this matter was continued. By letter dated January 20, 2011, you
were notified of the date, time and location of the March 3, 2011, public meeting at which
your appeal would be considered.
At the public meeting on March 3, 2011, you appeared and stated that as an
Accountant 3 with the Executive Offices, Office of the Budget under job code 03040, you
were not a supervisor and you were not involved with grants. You further stated that not
everyone serving as an Accountant 3 with the Executive Offices, Office of the Budget
under job code 03040 files 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.
Our review of this matter is de novo (Clarke, Opinion 04-012; Spear, Opinion 04-
011): “De novo review entails, as the term suggests, full consideration of the case anew.
The reviewing body is in effect substituted for the prior decision maker and redecides the
case.” D’Arciprete v. D’Arciprete, 323 Pa. Super. 430, 470 A.2d 995 (1984) (citations
omitted). See also, Hayes v. Donohue Designer Kitchen, Inc., 2003 Pa. Super. 84, 818
A.2d 1287 (2003); Commonwealth v. Krut, 311 Pa. Super. 64, 457 A.2d 114 (1983); In re
Audit of School District, 354 Pa. 232, 47 A.2d 292 (1946).
We shall begin our analysis by noting the established principle that the Ethics Act,
as remedial legislation, is to be liberally construed. Maunus v. State Ethics Commission,
518 Pa. 592, 544 A.2d 1324 (1988).
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;
Killen, 11-001
March 11, 2011
Page 5
(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 this 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:
Killen, 11-001
March 11, 2011
Page 6
(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.
The following terms 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 person’s 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.
As noted in the Advice of Counsel, 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
Killen, 11-001
March 11, 2011
Page 7
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 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,
Quaglia v. State Ethics Commission, 986 A.2d 974 (Pa. Cmwlth. 2010), allocatur denied, 4
A.3d 1056 (Pa. 2010); Phillips, supra.
In applying the objective test in the instant matter, we conclude that in your former
position 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 Ethics Act and the
Regulations of this Commission.
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; 51 Pa. Code § 11.1(“public employee”); see also, Gilliland/Reese, Opinion 05-005.
The objective sources defining your former position--the official position description
and the job classification specifications under job code 03040--establish that as an
Accountant 3 with the Executive Offices, Office of the Budget, you had the authority, inter
alia, to do the following:
(Per Position Description)
?
Oversee large and difficult transactions and funds, with responsibility for the
largest and most complex fund types;
?
Recommend establishment of Commonwealth accounting controls and
financial review trails to higher level accounting staff or management;
?
Recommend significant modifications for accounting and related
improvements;
?
Determine and take corrective action as to errors in financial records;
?
Assess internal controls and devise and communicate or implement
procedures to address or mitigate identified risks;
?
Verify source documents for accuracy, completeness, authorization and
coding;
?
Monitor budgetary compliance and resolve areas of deficiency with the
agency;
?
Review cash draw downs, related adjustments, and interagency billings; and
?
Monitor loans and repayment.
(Per Job Classification Specifications)
?
Supervise a staff of professional, technical, or clerical employees who
maintain accounting records and prepare related reports and financial
statements;
Killen, 11-001
March 11, 2011
Page 8
?
Perform the accounting operations for a complex program/fund or varied
programs/funds;
?
Supervise the preparation and approval of adjustment transactions; and
?
Examine financial data submitted by business enterprises subject to state
regulations and prepare analytical accounting reports.
Based upon the above, we find that your authority included responsibility for taking
or recommending official action of a nonministerial nature with regard to category (5) of the
Ethics Act’s definition of “public employee,” specifically, “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. In particular, there is no doubt that in 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, and determining and taking corrective action as to
errors in financial records, your official job duties and responsibilities would have a
significant economic impact upon the interests of taxpayers with regard to the expenditure
of public funds. Cf., McGill, Opinion 07-004; Duncavage, Opinion 09-004. Additionally,
your authority to: (1) oversee large and difficult transactions and funds, with responsibility
for the largest and most complex fund types; (2) assess internal controls and devise and
communicate or implement procedures to address or mitigate identified risks; (3) verify
source documents for accuracy, completeness, authorization and coding; (4) monitor
budgetary compliance and resolve areas of deficiency with the agency; (5) review cash
draw downs, related adjustments, and interagency billings; (6) monitor loans and
repayment; (7) supervise a staff of professional, technical, or clerical employees who
maintain accounting records and prepare related reports and financial statements; (8)
perform the accounting operations for a complex program/fund or varied programs/funds;
(9) supervise the preparation and approval of adjustment transactions; and (10) examine
financial data submitted by business enterprises subject to state regulations and prepare
analytical accounting reports, would provide additional support for the conclusion that you
were a “public employee” subject to the provisions of the Ethics Act.
Having determined that 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
Ethics Act and the Regulations of this Commission, it necessarily follows that you would be
required to file Statements of Financial Interests pursuant to the Ethics Act. The Ethics Act
requires that a public employee file a Statement of Financial Interests by May 1 each year
that he holds the public position and the year after he leaves it.
Based upon the above analysis, we deny the appeal and affirm Advice of Counsel
10-593.
Lastly, this matter has only been addressed under the Ethics Act.
IV.CONCLUSION:
In your former capacity 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 (“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 you would be
required to file Statements of Financial Interests pursuant to the Ethics Act. The appeal is
denied. Advice of Counsel 10-593 is affirmed.
This matter has only been addressed under the Ethics Act.
Killen, 11-001
March 11, 2011
Page 9
Pursuant to Section 1107(10) of the Ethics Act, 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