HomeMy WebLinkAbout17-537 WertzS
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1 -800- 932 -0936
ADVICE OF COUNSEL
June 13, 2017
To the Requester:
Mr. Michael Wertz
Dear Mr. Wertz:
17 -537
This responds to your letter dated April 19, 2017, styled as a Financial Interest
Disclosure appeal, which will be treated as a request for an advisory from the
Pennsylvania State Ethics Commission ( "Commission ").
Issue: Whether, as an Applications Developer 1 with the Pennsylvania
Ue—partment of Transportation ( "PennDOT ") under job code, 01521, you would be
considered a "public employee" subject to the Public Official and Employee Ethics Act
Cthe "Ethics Act "), 65 Pa.C.S. § 1101 et sec.., and the Regulations of the State Ethics
ommission, 51 Pa. Code § 11.1 et sue., and particularly, the requirements for filing
Statements of Financial Interests.
Facts: You seek a determination as to whether, in your capacity as an
Applications Developer 1 with PennDOT under job code 01521, you are a " ublic
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 ( "SFls ").
You have submitted a copy of a position description ( "the Position Description ")
for your position with PennDOT, which document is incorporated herein by reference.
You have also submitted a copy of the job classification specifications for the position of
Applications Developer 1, job code 01521, which document is also incorporated herein
by reference.
Per the Position Description, your position is located in the Data Systems Section
of the Geographic Information Division in the Bureau of Planning and Research
( "Bureau ") within PennDOT. Your job duties and responsibilities include:
• Maintaininci and supporting the Bureau's RTMS system and the Migration
Form application;
• Supporting and maintaining the BPTMaps application for the Bureau of
Pu lc Transit and the Muniform Application for the Program Center,
• Maintaining the Bureau's various NuGet Packages; and
• Playing an active role in script writing and user acceptance testing for
various applications.
FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us 0 e -mail: ethics(Dstate.pa.us
Wertz, 17 -537
Tune 13, 2017
Page 2
Position Description, at 2.
Per the job classification specifications under job code 01521, an Applications
Developer 1 performs technical work in the analyysis, planning, design, programming,
and maintenance of computer applications, wifh specific examples of such work
including the following
• Meets with users or business analysts or participates in user meetings to
determine existing business processes, problems, objectives, and
requirements in order to design or modify a system solution that will meet
user needs;
• Participates in identifying design alternatives, including the technical and
economic feasibility of each alternative, and develops recommendations
for systems parameters, including proposed schedule and projected costs
for development;
• Develops or participates in developing specifications for the proposed
business system, including report layouts, screens, input documents and
forms file design, forms design, and physical file structure;
• Utilizes standard and advanced computer system design techniques,
software development lifecycle methodologies, and developmental tools;
• Determines database requirements and prepares database design for
review by a project leader or supervisor;
• Incorporates information security policies, principles, and practices in
application requirements;
• Performs system and program coding and system testing;
• Provides system support by coordinating with users, business analysts,
and management regarding system operations and corrections that are
required;
• Performs maintenance on systems, including evaluating requested
changes, coding and testing changes, and coordinating the release of the
changes;
• Participates in the review of vendor work;
• Participates in the review of commercially available software to determine
whether available products meet system requirements or whether
traditional application development is required;
• Performs customizations of limited complexity of commercially available
software products to provide functionality not originally provided;
• Participates in business intelligence functions for data warehouses and in
the development of middleware solutions; and
• Functions as a lead worker for limited technical work by assigning and
reviewing work, training employees, and performing quality control
functions for the work.
Job Classification Specifications, at 1-2.
You assert that you are not responsible for taking or recommending official action
of a non - ministerial nature that would bring you within the definition of "public employee"
as set forth in the Ethics Act.
Discussion: It is initially oted that pursuant to Sections 1107('10) and 1'107('1'1) of
e tics Act, 65 Pa.C.S. y§§ 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
Wertz 17 -537
T i3, 2017
Page 3
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 nonministenal
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.
Wertz, 17 -537
X13, 2017
Page 4
(G) The individual makes final technical recommen-
dations.
(H) The individual's recommendations or actions are
an inherent and recurring part of his position.
(1) 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.
Wertz, 17 -537
June J13, 2017
Page 5
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 persons 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
he action taken.
65 Pa.C.S. § 1102.
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 or anizaticnal 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. Ste,
Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion
04 -002; hienvo , pinion 04 -001; Shearer, Opinion 03 -011. The Commonwealth Court
of Pennsylvania has s ecifically consered 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, Qua lia v. State Ethics
Commission, 986 A.2d 974 (Pa. Cmwlth. 2010), amended 1, 2010 a. ommw. L EXI
8 Pa. m vIth. January 5, 2010), allocatur denied, 607 Pa. 708, 4 A.3d 1056 (2010);
Phillips, sutra.
The first portion of the statutory definition of "public employee" includes
individuals with authority to take or recommend official action of a nonministenal nature.
65 Pa.C.S. § 1102. Likewise, the regulatory criteria for determining tatus as a public
employee, as set forth in 51 Pa. Code § 11.1 ("public employyee ")(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 Applications Developer 1 with PennDOT under job code 01521,
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.
It is clear that as an Applications Developer 1 under job code 01521, you have
the ability to take or recommend official action of a nonministerial nature with respect to
subparagraph (5) e
within the definition of "public emplo e" as set forth in the Ethics Act,
65 Pa.C.S. § 11 ''1102. Specifically, your authority to: 1) develop recommendations for
systems parameters, including protected costs for development; (2) develop or
participate in developing specifications for the proposed business system; (3) participate
in the review of vendor work; and (4) participate in the review of commercially available
software to determine whether available products meet system requirements or whether
traditional application development is required; would be sufficient to establish your
status as a "public employee" subject to the Ethics Act. The foregoing dutieslauthority
Wertz 17 -537
Tu0i 3'' 2017
Page 6
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 §y11.1, "public
employee," subparagraphs (i) and (ii).
Therefore, you are advised that as an Applications Developer 1 with PennDOT
under job code 01521, you are a "public en- loyee" 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.
Conclusion: As an Applications Developer 1 with the Pennsylvania Department of
ranspo ation under job code 01521, you area "public employee` subject to the Public
Official and Em to ee Ethics Act ("Ethics Act "), 65 Pa.C.S. Kl.leOl et se ., and the
Regulations of the Pennsylvania State Ethics Commission, 51 ome § 11.1 et sec..,
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 afforesaid 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 an
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 acts
received at the Commission within thirty (30) days of the date of this
vice 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