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HomeMy WebLinkAbout11-532 Simpson ADVICE OF COUNSEL June 21, 2011 Shana J. Simpson 13679 Highland Road Clarksville, MD 21029 11-532 Dear Ms. Simpson: This responds to your letter dated April 29, 2011, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether, in your former capacity as a Manager of Accounting & Financial Reporting with the County of Berks (“County”), 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 former capacity as a Manager of Accounting & Financial Reporting with the County, you would be considered a “public employee” subject to the Ethics Act and the Regulations of the State Ethics Commission, and in particular, whether you would be required to file Statements of Financial Interests pursuant to the Ethics Act. You state that you are no longer employed with the County. You have submitted a copy of a County position description for the position of Manager of Accounting & Financial Reporting, which document is incorporated herein by reference. Although the aforesaid position description is not signed by you or anyone with the County, you state that the position description appears to be accurate with the exception of the number of positions supervised and the total operating budget/oversight responsibility. The County position description for the position of Manager of Accounting & Financial Reporting provides, in pertinent part, as follows: POSITION SUMMARY: Determines and implements the accounting necessary to properly present the financial condition of the County. Makes complex and technical decisions for the County of Berks by classifying, analyzing, and reporting financial data using generally accepted accounting principles, which include the pronouncements of the Governmental Accounting Standards Board (GASB), the Financial Accounting Standards Board (FASB), and Simpson, 11-532 June 21, 2011 Page 2 HIPAA (Health Insurance Portability Access Act). May work with confidential and HIPAA restricted information. POSITION RESPONSIBILITIES: Essential Functions: 1. Maintains accurate, complex and technical accounting records, and prepares the County’s monthly financial statements. Executes the monthly closing schedule to close the General Ledger for preparation of the financial statements. 2. Acts as the Financial Team Lead during ERP system implementations to coordinate the activities of the General Ledger, Accounts Payable, Accounts Receivable and Grants Receivable modules. 3. Supervises Departmental Fiscal Officers regarding the coordination of a monthly fifteen (15) day close of the County’s General Ledger. Evaluates job performance and aptitude of Departmental Fiscal Officers and makes appropriate recommendations to the applicable Department Head. 4. Reviews post-implementation systems procedures for re- design and re-engineering to achieve maximum efficiency of effort, and develop financial reporting to utilize redesigned procedures. 5. Develops and prepares the financial reporting schedules for the independent auditors and for the Comprehensive Annual Financial Report for the County. 6. Provides on-going reviews of the records on all bond issues to ensure that the financial records of the County are properly stated. Ensures that all funds are properly accounted for, and that all necessary documentation is in place. 7. Provides on-going accounting services to the Retirement Fund and the Retirement Fund Board, ensuring that complex financial transactions are properly handled, and that the Board is fully informed of the financial condition of the Fund. . . . . County of Berks Position Description, Manager of Accounting & Financial Reporting, at 1-2. You state that in your former capacity as a Manager of Accounting & Financial Reporting with the County, you were 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. You state that any decisions that you made pertained to reporting activity which had already taken place and that such decisions in no way impacted how money was spent or from whom goods or services were obtained. You state that any involvement that you had with grants was limited to reporting activity which was managed and administered by others. You further state Simpson, 11-532 June 21, 2011 Page 3 that you did not approve expenditures or have any impact upon how grant funds or any other funds were used. 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. Simpson, 11-532 June 21, 2011 Page 4 (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. (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: Simpson, 11-532 June 21, 2011 Page 5 (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. 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 former capacity as a Manager of Accounting & Financial Reporting with the County, you would be considered a “public employee” subject to the Ethics Act and the Regulations of the State Ethics Commission. As a Manager of Accounting & Financial Reporting with the County, you had 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 County position description would be sufficient to establish that you were a “public employee” subject to the provisions of the Ethics Act: ? Making complex and technical decisions for the County by classifying, analyzing, and reporting financial data; ? Acting as the Financial Team Lead during ERP system implementations to coordinate the activities of the General Ledger, Accounts Payable, Accounts Receivable and Grants Receivable modules; Simpson, 11-532 June 21, 2011 Page 6 ? Evaluating the job performance and aptitude of Departmental Fiscal Officers and making appropriate recommendations to the applicable Department Head; ? Reviewing post-implementation systems procedures for re-design and re- engineering to achieve maximum efficiency of effort; ? Providing on-going reviews of the records on all bond issues to ensure that the financial records of the County are properly stated; ? Ensuring that all funds are properly accounted for, and that all necessary documentation is in place; and ? Providing on-going accounting services to the Retirement Fund and the Retirement Fund Board, ensuring that complex financial transactions are properly handled and that the Board is fully informed of the financial condition of the Retirement Fund. Having determined that as a Manager of Accounting & Financial Reporting with the County, you would be considered a public employee subject to the Ethics Act and the Regulations of the State Ethics 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. Conclusion: In your former capacity as a Manager of Accounting & Financial Reporting with the County of Berks, 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. 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