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Home My WebLink About83-572 PaytonMr. David C. Payton 6160 Clearfield Street Harrisburg, PA 17111 Madmg Address. STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 July 5, 1983 ADVICE OF COUNSEL 83 -572 Re: Budget Analyst II; Financial Interest Statement Dear Mr. Payton: This responds to your request of June 3, 1983, in which you asked the State Ethics Commission to make a determination regarding your status as a public employee for purposes of filing a Financial Interest Statement (FIS). Issue: You ask whether you, as a Budget Analyst II for the Pennsylvania Board of Probation and Parole, must file a Financial Interest Statement with the State Ethics Commission. Facts: You are a Budget Analyst II with the Pennsylvania Board of Probation and Parole (BPP). As such, you share an office with your supervisor, the Director of the Fiscal Division, who also reviews your finished products, according to your job description. Some of your duties include preparation of budgets and /or rebudgets, preparation of monthly fiscal reporting, administration of Agency property leasing and space allocation program, and auditing and processing of vendors' invoices and invoices rendered by other Commonwealth agencies. You are also responsible for the administration of the Agency Advancement Account, which facilitates the procurement of vital services and supplies under extraordinary conditions and /or of a monetary value of $300 or less. Management involves the actual disbursement of monies, regular periodic reimbursement of the fund, maintenance of the fund's bank account, and maintenance of records and files pertinent thereto. Your job description indicates that you also are responsible for the fiscal management of federal sub -grant and program applications. You allocate and allot any awarded funds in response to application, and you also attend to all accounting duties. You participate in audits of the grants and /or programs, and you prepare replies to audit exceptions raised as a consequence of such inspection. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. David C. Payton July 5, 1983 Page 2 Although your personnel office has decided that you are a public employee subject to the Financial Interest Statement filing requirements, you indicate that you do not participate in decision making of a nonministerial nature. You indicate that the personnel office considered you a public employee because of your signatory responsibility of check issuance. However, you believe that such a classification is erroneous, and that your countersigning and drawing of an advancement account check is a ministerial action for two reasons. First, you state that you do not approve payment of invoices and cannot exercise your own judgment, and that all invoices to be paid have prior approval from an approving authority. Second, the signature of the bureau director or executive assistant is required on such checks, and while they have the authority to exercise nonministerial action (presumably to stop or issue such checks), you have no such authority. You also indicate that your job description has not been previously subject to the filing requirements of the Financial Interest Statement and that you were not required to file a Financial Interest Statement under the Governor's Code of Conduct last year either. You therefore believe that you are not subject to the filing requirements of the Ethics Act and you have appealed to the State Ethics Commission for a ruling on the matter. Discussion: Initially, the Ethics Commission notes that, as a statutory entity, its jurisdiction and its power are strictly limited to the authority granted it in 65 P.S. 401 et. seq. Thus, it has no authority to interpret and /or enforce the provisions of other codes, for example, the Governor's Code of Conduct, and this advice should not be construed as clearance to act under other Commonwealth Laws. The applicable provisions of the Ethics Act are contained in 65 P.S. 402, which reads: "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 minimus nature on the interests of any person. Mr. David C. Payton July 5, 1983 Page 3 "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. 65 P.S 402. Your personnel office has apparently reviewed your general duties and decided that based upon same, you did not fall within the purview of the definition of "public emmployee" except for your check - writing role. While we will not generally review your position and agree with your non - inclusion as found by your personnel office, we believe that you do not exercise nonministerial authority with regard to the countersigning of advancement account checks, and the Commission believes that in this respect your argument is viable. So long as you could not spend, or decide to spend such monies yourself, and higher authorization is needed for such expenditure, you do not fall within the category of "public employees" who have authority to take or recommend nonministerial actions with respect to spend public monies. Although Commission policy is that doubts as to coverage of a particular person or entity by the Act should be resolved in favor of disclosure, the Commission believes that your duties are more in line with maintenance of records as accounts and preparation of documents, etc., and that you are not subject to the filing requirmenets of the Ethics Act. Also, in light of the fact that your job description was not within the coverage of the Act last year and no c hanges have been brought to our attention, the Commission does not find that you are subject to its provisions this year. Conclusion: Your job description indicates that you are not a "public employee" subject to the filing requirements of the Ethics Act because your check - signing duties are of ministerial nature and that you are apparently responsible mainly for record and document maintenance and preparation. As such you have no authority to take or recommend action within the categories set forth in the definition of "public employee" in the Ethics Act and you need not file a Financial Interest Statement as required by Section 4 of the Ethics Act. Pursuant to Section 7(9)(ii), this 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, providing the requestor 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. Mr. David C. Payton July 5, 1983 Page 4 Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. KW /na cc: Robert E. Yerger, Director Fred W. Jacobs, Chairman Sincerely, ra S. Ch General Co stianson sel