HomeMy WebLinkAbout18-001 Wertz2� tA
PHONE: 717- 783 -1610 STATE ETHICS COMMISSION FACSIMILE: 717- 787 -0806
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613 NORTH STREET, ROOM 309
HARRISBURG, PA 171200400
OPINION OF THE COMMISSION
Before: Nicholas A. Colafella, Chair
Mark R. Corrigan, Vice Chair
Roger Nick
Melanie DePalma
Monique Myatt Galloway
Michael A. Schwartz
Shelley Y. Simms
DATE DECIDED: 211118
DATE MAILED: 2116/18
18 -001
To the Requester /Appellant:
Mr. Michael Wertz
Dear Mr. Wertz:
This Opinion is issued in response to the appeal of Advice of Counsel 17 -537, which
Advice was issued on June 13, 2017,
ISSUE:
Whether an Applications Developer 1 with the Pennsylvania Department of
Transportation ( "PennDOT ") under job code 01521 would be considered a "public
employee" subject to the Public Official and Employee Ethics Act (the "Ethics Act" }, 65
Pa.C.S. § 1101 et se q., and the Regulations of the State Ethics Commission, 51 Pa. Code
eq., and particularly, the requirements for filing Statements of Financial
nterests.
11. FACTUAL BASIS FOR DETERMINATION:
You were initially notified by your employer that in your position as a PennDOT
Applications Developer 1, you would be considered a "public employee" and therefore
required to file Statements of Financial Interests pursuant to the Ethics Act. On or about
January 30, 2017, you appealed that determination. Following review, of your appeail by
the Office of Administration, you received a notification from PennDOT dated Apri , 2017,
confirming that your duties brought you within the definition of the term "public employee"
as set forth in the Ethics Act. The April 7, 2017, letter stated, in part:
Information was taken from your position description and evaluated against
the definition of a public employee as stated in the Public Official and
Wer#z 18 -001
FeTru' ry 18, 2018
Page 2
Employee Ethics Act and applicable criteria listed in Management Directive
205, 10, Amended. Your duties as a staff developer require you to exercise
your own judgement in taking and recommending official action that can
have an economic consequence of significant effect on the interest of others.
The duties entail preparing final recommendations, which are an inherent
and recurring part of your position and affect other organizations. The
position requires exercising discretion in determining the design to pursue
and technology to use, and you possess the independence to research and
recommend tools for implementation and use.
Your appeal has been reviewed by the Office of Administration, and a
determination has been rendered that, based on the specific duties assigned
to your position and job title, your duties are covered by the Governor's Code
of Conduct and the State Ethics Act. This letter is official notification that,
should you disagree with this decision, you have the right to formally appeal
to the State Ethics Commission, where you can be scheduled for a hearing
before the Commission. If you choose to not file a formal appeal, you are
required to submit your financial statements within 30 days of the receipt of
this letter.
April 7 2017 letter of Chris Norris Director Bureau of Human Resources, at 1.
By letter dated April '19, 2017, you filed a formal appeal with this Commission. Your
letter was processed for issuance of an Advice of Counsel. Advice of Counsel 17 -537 was
issued to you on June 13, 2017. Advice of Counsel 17 -537 summarized the submitted
facts as follows:
You seek a determination as to whether, 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 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 C'SFIs ").
You have submitted a copy of a position description ( "the Position
Description' for your position with PennDOT, which document is
incon... _edd 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:
+ Maintaining and supporting the Bureau's RTMS system and the
Migration Form application;
+ Supportin and maintaining the BPTMaps application for the Bureau
of Public 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.
Position Description, at 2.
Per the job classification specifications under job code 01521, an
Applications Developer 1 performs technical work in the analysis, planningg,
design, programming, and maintenance of computer applications, with
Werfiz, 18 -001
February 16, 2018
Page 3
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 specificationsforthe 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.
Wertz, Advice of Counsel 17 -537, at 1 -2.
Advice of Counsel 17 -537 determined that as an Applications Developer 1 with
PennDOT under job code 01521, you would be considered a `public employee" subject to
the Ethics Act and the Regulations of this Commission, 51 Pa. Code § 11.1 et seg. The
Advice applied this Commission's judicially approved "objective test" for determining status
as a "public employee" subject to the Ethics Act, which is based upon what an individual
has the authority to do in a given position per the objective sources - -such as the job
description, job classification specifications and organizational chart -- rather than the
variable functions that the individual may actually perform in the position. See, Quagliay.v.
State Ethics Commission, 986 A.2d 974 (Pa. Cmwlth. 2010), amended j?Y, 2010 Pa.
ommw. LE XIS 8 (Pa. mwlth. January 5, 2010), allocatur denied, 607 Pa. 708, 4 A.3d
Wertz, 18 -001
e ruary 16, 2018
Page 4
1056 (2010); Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben,
Opinion 04 -002; Shienvold, Opinion 04 -001; hearer, Opinion 03 -011.
The Advice stated:
It is clear that as an Applications Developer 1 under j ob code 01521,
you have the ability to take or recommend official action of nonministerial
nature with respect to subparagraph (5) within the definition of "blic
employee" as set forth in the Ethics Ac, 65 Pa.C.S. § 1102. Specificpually,
your authority to: (1) develop recommendations for systems parameters,
including projected 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 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).
Wert z, Advice of Counsel 17 -537, at 5 -6.
Advice of Counsel 17 -537 concluded:
As an Applications Developer 1 with the Pennsylvania Department of
Transportation under Job code 01521, p
you are a "public employee" subject to
the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101
et seg., 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 Thterests 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.
Wert z, Advice of Counsel 17 -537, at 6.
By letter dated June 21, 2017, you appealed Wertz, Advice of Counsel 17 -537. In
your appeal letter, you asserted that the Advice was incorrect in several places based upon
the following arguments:
1. I do not estimate development costs of projects. My input is limited to
estimates on how much of my own time the project I work on will take. I do
not do cost estimates, or in any way handle assign finances or budgeting.
2. The input I give into developing internally used business systems is
limited in nature and confined to the narrowly scoped applications that
support. They have no impact on anyone else or the Commonwealth.
3. While I do work with vendors, it is not my responsibility to review their
work or select the vendors themselves. An AD1 is an entry level position that
is not responsible for final approval of any projects or contracts.
4. 1 do not purchase or license any software. Any recommendations I
make would be the same that anyone else working in any position in the
Commonwealth could make on a product they found.
Wertz Appeal Letter of June 21, 2017.
By letters dated September 6, 2017, and December 12, 2017, you were notified of
the dates, times and locations of the public meetings at which your request would be
Wertz, 18 -001
�e Za' ry 16, 2018
Page 5
considered.
At the public meetings on September 28, 2017, and February 1, 2018, you
appeared and offered commentary, which may be fairly summarized as follows.
You stated that you no longer hold the position of Applications Developer 1 and that
you no longer work at PennDOT, having left the position as an Applications Developer 'I
with PennDOT in mid -to -late 2017.1
You stated your view that your position as an Applications Developer 1 was a low -
level position that lacked authority to spend money, approve purchases, make decisions as
to hiring or firing, or perform any other activities that would bring the position within the
filing requirement. You stated that as an Applications Developer 1 with PennDOT, you
operated under established standards, and that the most you could do would be to suggest
a product that might be helpful, as any Commonwealth employee could do. You stated
that other individuals holding the position of Applications Developer 1 and even some
higher ,level positions are not being required by their agencies to file the Statement of
Financial Interests form.
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 acts 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.
Pages 3 -5 of Wertz, Advice of Counsel 17 -537 accurately recite the definitions of
the terms 'public employee," "ministerial action," and "non - ministerial actions" as set forth
in the Ethics Act, 65 Pa.C.S. § 1102, the applicable regulatory criteria, 51 Pa. Code § 11.1
(definition of "public employee "), and the judicially approved `.objective test" by which status
as a "public employee' subject to the Ethics Act is determined, all of which recitation is
incorporated herein by reference.
As noted in the Advice and referenced in the factual recitation above, the aforesaid
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, which are typically
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 tunctions that the individual may actually perrorm in ineposgion.
See, Quaglia, supra, Hn�illips, supra; tioen, supra; 5i
�mmonwealt�urt of Pennsylvania has specT
Commission's objective test and has directed that
construed broadly and that exclusions under the Ethic
supra; l�n�, supra.
Lid, _s_uprraa; 5nearer, supra. i ne
considered a approved this
The arguments that you have raised in the instant appeal erroneously focus on what
you claim you actually did in your osition, rather than on the objective test of what you
would have the authority to do per Fhe job description and job classification specifications
for the position.
The assertion that the position is an entry level position that does not give final
1 The fact that you no longer hold the position of Applications Developer 1 with PennDOT does not render
your appeal moot as the question remains of whether you would be required to file Statements of Financial
Interests with PennDOT for past calendar year(s) and by May 1, 2018, for calendar year 2017.
Wertz, 18 -001
February 16, 2018
Page 6
approval for projects /contracts is not dispositive of your status under the Ethics Act. As
noted in Advice of Counsel 17 -537, 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. The regulatory criteria for determining status as
a public employee, as set forth in 11 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
pre are 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, etc.., Reese /Gilliland, Opinion 05 -005.
In applying the objective test in the instant matter, we agree with Advice of Counsel
17� -537 that, in your capacity as an Applications Developer 1 with PennDOT under ob code
01521, 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. Advice of Counsel 17 -537 accurately identified the
relevant authority of your position which would bring you within the Ethics Act's definition of
the term "public employee," specifically, your authority to. (1) develo recommendations for
systems parameters, including projected costs for development; 2Mvelop 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 commerca ly available software to
determine whether available products meet system requirements or whether traditional
application development is required. Such authority would be sufficient to establish your
status as a "public employee' under subparaggraph (5) within the definition of "public
employee , as set forth in the Ethics Act, 65 Pa.C.S. § 1102, and under the Regulations of
this Commission, 51 Pa. Code § 11.1, "public employee," subparagraphs (i) and (ii).
Therefore, you are advised that as an Applications Developer 1 with PennDOT
under job code 01521, you would be a "public employee" subject to the provisions of 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.
Additionally, given that the authority which brings you within the Ethics Act's
definition of "public em toyee" is contained within the fob classification specifications under
job code 01521, we hold tha #all persons occupying the position of Applications Developer
1 under job code 01521 in the various agencies of the Commonwealth of Pennsylvania
would be considered public employees subject to the Ethics Act and Regulations of this
Commission, and in particular, the requirement to file Statements of Financial Interests
pursuant to the Ethics Act.
Based upon the above analysis, we deny the appeal and affirm Wertz, Advice of
Counsel 17 -537.
This Commission's enforcement of the requirement for persons holding the position
of Applications Developer 1 under job code 01521 to file Statements of Financial Interests
pursuant to the Ethics Act shall be prospective only, commencing with the Statement of
Financial Interests forms due to be filed by May 1, 2018, for calendar year 2017. Because
you held the position of Applications Developer 1 under job code 01521 for part of 2017,
you will be required to file a Statement of Financial Interests with PennDOT by May 1,
2018, for calendar year 2017, but this Commission will not enforce the filing requirement
for the.prior calendar years that you held such position.
Chief Counsel for this Commission is directed to forward copies of this Opinion to
the Governor's Office so that the various agencies will be informed of this decision and of
this Commission's recommendation that they give consideration to whether persons in
higher level positions should also be filing.
Lastly, the propriety of the proposed course of conduct has only been addressed
under the Ethics Act.
Wertz, 18 -001
F—e try 16, 2018
Page 7
IV. CONCLUSION:
As an Applications Developer 1 with the Pennsylvania Department of Transportation
under job code 01521, you would be 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 se q., and in articular, the
requirements for filing Statements of Financial Interests pursuant to the Ethics Act. All
persons occupying the position of Applications Developer 1 under job code 01521 in the
various agencies of the Commonwealth of Pennsylvania would be considered public
employees subject to the Ethics Act and Regulations of this Commission, and in particular,
the requirement to file Statements of Financial Interests pursuant to the Ethics Act.
The appeal is denied. Advice of Counsel 17 -537 is affirmed.
This Commission's enforcement of the requirement for persons holding the position
of Applications Developer 1 underjob code 01521 to file Statements of Financial Interests
pursuant to the Ethics Act shall be prospective only, commencing with the Statement of
Financial Interests forms due to be filed by May 1, 2018, for calendar year 2017. Because
you held the position of Applications Developer 1 under job code 01521 for part of 2017,
you will be required to file a Statement of Financial Interests with PennDOT by.May 1,
2018, for calendar year 2017, but this Commission will not enforce the filing requirement
for the prior calendar years that you held such position.
Chief Counsel for this Commission is directed to forward cops of this Opinion to
the Governor's Office so that the various agencies will be informed of ie this decision and of
this Commission's recommendation that they give consideration to whether persons in
higher level positions should also be filing.
The propriety of the proposed conduct has only been addressed under the Ethics
Act.
Pursuant to Section 1107(10), 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.
By t e Commission,
Nic olas A. Colafeila
Chair