HomeMy WebLinkAbout11-526 Troutman
ADVICE OF COUNSEL
May 20, 2011
Patricia M. Troutman
th
603 North 4 Street
Hamburg, PA 19526
11-526
Dear Ms. Troutman:
This responds to your letter dated March 31, 2011, by which you submitted a
Financial Disclosure Appeal Form dated March 15, 2011, which documents collectively
will be treated as a request for advice from the Pennsylvania State Ethics Commission.
Issue:
Whether, as an Administrative Assistant 1 with the Pennsylvania
Department of Military and Veterans Affairs under job code 08210, 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 particularly, the requirements for filing
Statements of Financial Interests.
Facts:
You seek a determination as to whether, in your capacity as an
Administrative Assistant 1 with the Pennsylvania Department of Military and Veterans
Affairs (“Department of Military and Veterans Affairs”) under job code 08210, 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.
Copies of your official Commonwealth position description and the job
classification specifications for the position of Administrative Assistant 1, job code
08210, have been obtained and are incorporated herein by reference.
Per your official Commonwealth position description, you manage all aspects of
the Pennsylvania National Guard Education Assistance Program (“EAP”). You are
responsible for receiving, screening, controlling, and processing applications and
determining the eligibility of applicants for the EAP based on legislative guidelines. You
perform your work independently and are subject to an annual audit of records for
internal accountability. Your specific duties and responsibilities also include the
following:
?
Monitoring budget expenditures;
?
Preparing financial and statistical reports;
?
Researching, creating, implementing, evaluating, and interpreting
administrative policies and procedures;
?
Making procedural, budget, and personnel changes;
Troutman, 11-526
May 20, 2011
Page 2
?
Supervising and training clerical staff for the Education Office, which
involves creating job descriptions, interviewing, hiring, monitoring daily
activities, prioritizing duties and reviewing work, approving leave usage,
and taking disciplinary actions;
?
Preparing and sending reconciliation rosters to all colleges that owe funds
to the Department of Military and Veterans Affairs;
?
Keeping military units informed about changes to the EAP and providing
feedback and correspondence;
?
Checking military personnel records to guarantee EAP eligibility
documents are correct and have been input into SIDPERS accurately;
?
Explaining eligibility criteria for EAP, providing applications to soldiers, and
responding to questions;
?
Professionally responding to telephone inquiries from units, soldiers,
colleges, and the Pennsylvania Higher Education Assistance Agency, and
resolving problems concerning enrollment, eligibility, and funding in a
timely manner;
?
Preparing non-acceptance letters to individuals and their units identifying
reason for non-acceptance;
?
Notifying the Comptroller’s Office of lost or missing college checks so that
a trace, stop-payment, or replacement check can be issued;
?
Reviewing and scrutinizing expenditure reports from the Comptroller’s
Office to ensure that monies are appropriately charged and credited to
programs, and if discrepancies exist, investigating by researching and
contacting the Comptroller’s Office to resolve such discrepancies; and
?
Preparing various reports showing program participation and other
statistics.
Position Description, at 1-2.
Per the job classification specifications under job code 08210, an Administrative
Assistant 1:
?
Studies and analyzes operational procedures and prepares detailed and
comprehensive reports of findings and recommendations;
?
Carries out various administrative research assignments and conducts
research and studies in connection with the development and evaluation
of agency programs;
?
Performs occasional public relations duties and assists in the preparation
of news releases and speeches;
?
Reviews and replies to routine correspondence and disposes of other
administrative details as directed;
?
Assists administrative superiors in establishing and maintaining
cooperative working relationships with other governmental agencies; and
?
Assists in the preparation of budget estimates and other fiscal and
statistical reports.
Job Classification Specifications, at 1.
On your Financial Disclosure Appeal form, you state, inter alia: (1) that your
position is ministerial in nature and that you can only strictly follow the law; (2) that you
do not have the authority to work outside of the legislated guidelines or to make policy
changes for the EAP; (3) that PHEAA, and not you, administers the EAP, determines
grants, and makes payments; (4) that you are not a supervisor, and that your Employee
Performance Reviews refer to your position as a non-supervisor position; and (5) that
you do not make the final decisions for the EAP.
Troutman, 11-526
May 20, 2011
Page 3
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
(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.
Troutman, 11-526
May 20, 2011
Page 4
(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.
(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.
Troutman, 11-526
May 20, 2011
Page 5
(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. 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), amended by, 2010 Pa. Commw. LEXIS
8 (Pa. Cmwlth. January 5, 2010), allocatur denied, 4 A.3d 1056 (Pa. 2010); 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 Administrative Assistant 1 with the Department of Military and
Veterans Affairs under job code 08210, you are a "public employee" subject to the Ethics
Act and the Regulations of the Commission, and in particular, the requirements for filing
Statements of Financial Interests pursuant to the Ethics Act.
As an Administrative Assistant 1 with the Department of Military and Veterans
Affairs, 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 would be sufficient to establish your
status as a “public employee” subject to the Ethics Act:
?
Screening, controlling, and processing applications and determining the
eligibility of applicants for the EAP based on legislative guidelines;
?
Creating administrative policies and procedures;
?
Making procedural, budget, and personnel changes;
?
Interviewing, hiring, and supervising clerical staff for the Education Office;
and
?
Approving leave usage for and taking disciplinary action against such
clerical staff.
Troutman, 11-526
May 20, 2011
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 Administrative Assistant 1 with the
Department of Military and Veterans Affairs under job code 08210, 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 Statements of Financial
Interests pursuant to the Ethics Act. Cf., Donley, Advice 02-575.
Conclusion:
As an Administrative Assistant 1 with the Pennsylvania Department
of Military and Veterans Affairs under job code 08210, 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, 51 Pa. Code
§ 11.1 et seq., 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