HomeMy WebLinkAbout95-580 SwantkoSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
July 6, 1995
Daniel Swantko
Pennsylvania Department of Revenue
Bureau of Individual Taxes
Strawberry Square, 6th Floor
Harrisburg, PA 17128
Re: Tax Examiner III; Department of Revenue; Public Employee; FIS.
Dear Mr. Swantko:
95 -580
This responds to your letter dated June 13, 1995, or Financial
Interest disclosure appeal, which will be treated as a request for
advice from the State Ethics Commission.
Issue: You ask whether in your capacity as a Tax Examiner III with
the Department of Revenue, you are to be considered a "public
employee" as that term is defined in the Public Official and
Employee Ethics Law.
Facts: As a Tax Examiner III for the Pennsylvania Department of
Revenue (Revenue), you filed a Financial Disclosure Appeal Form
which your employer has forwarded to us and which has been docketed
as an advisory request as to whether you are required to file the
Financial Interests Statement (FIS). In the Financial Disclosure
Appeal you assert that your position duties and responsibilities
fail to meet the definition of a public employee. You then cite
portions of Section 2 of the Public Official and Employee Ethics
Law definition of "Public employee." "Any individual employed by
the Commonwealth . who is responsible for taking or
recommending official action in[sic] a nonministerial nature with
regards[sic] 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
or(sic] greater than a de minimis nature on the nature[sic] of any
person." You contend that the "job duties and responsibilities of
Tax Examiner III position #018304003680 meets the classification
definition of anyone who is involved exclusively in the ministerial
activity. "[sic] You claim that ministerial action is a person who
performs in a prescribed manner without regards to or the exercise
Swantko, Daniel, 95 -580
July 6, 1995
Page 2
of the persons own judgement as to the desirability of the action
being taken. You state that all section work assignments are
predetermined sactioned[sic] lists (suspension, audit, IRS
findings) that are formulated, requested, directed and authorized
by superior officials (Rev. Sec. Bureau Directors, Div. Chiefs) and
that these T /per lists are nonaltered and nonadulterated. You
further declare that the assignment, examination, review /audit of
these lists are governed and subscribed to Departmental procedures,
Pennsylvania Rules and Regulations mandated by Revenue through the
legislative process and the passage of the Income Tax Act of 1971.
You maintain that there are no independent judgmental actions
taken and all work assignments are performed in obedience to legal
authority through the income tax laws without the regard or the
exercise of any personal judgement as to the desirability of action
being taken since the application of written procedures and law
dictate the outcome. No final decisions /recommendations are
rendered at this level nor is there any written authority granted
to forward or stop recommendations from being sent to those in
authority to make final decisions and there are no final technical
recommendations at this level effecting other organizations. The
decision of the Revenue Job Evaluation Committee fails to
meet /represent the Pennsylvania Ethics Commission's intentions of
this law in definition and context as it relates to the Tax
Examiner III position. In summation, position #01830403680 is
magisterial[sic] in origin and function and fails to meet the
definition of a public employee as defined by the State Ethics
Commission, Commonwealth of Pennsylvania.
Finally, a copy of your job description classification/
specification has been submitted which is incorporated herein by
reference. In order to review the question presented, we will
briefly outline the duties and responsibilities associated with
your position as contained in your job description and the
classification specifications for this position. Your duties and
responsibilities as set forth in these two documents are
incorporated herein by reference. The classification /specification
for a Tax Examiner III provides for the following duties and
responsibilities: performing advance examinations and supervisory
work in reviewing tax documents; supervising a group of subordinate
employees engaged in reviewing and processing tax documents;
supervising the review of tax documents or individual taxpayer's
accounts that have been liened; corresponding with field personnel,
attorneys, banks and other governmental agencies and the general
public as to individual cases; supervising a group of subordinates
by defining examination objectives, reviewing results and answering
questions on technical applications of Revenue and working with a
great deal of independence under the general supervision of an
administrative superior.
Swantko, Daniel, 95 -580
July 6, 1995
Page 3
The job description provides that your work is specialized
managerial work in planning, organizing and directing work
assignments in various areas of taxes; managing a work force of
approximately of ten examiners who review, examine and analyze
different taxes and rebate claims; directing, planning and
implementing billing collection and payment posting activities as
to certain audits; analyzing certain transfers and transactions,
missing tax schedules and related correspondence for tax liability;
planning, directing, coordinating and controlling Unit activities
to ensure a smooth, efficient and positive flow of work;
maintaining liaison with other bureau areas and reviewing on a
sampling basis processed documents to determine that the documents
are in accordance with the Pennsylvania law and regulations and
procedures, supervising the Employee Incentive Program; directing
the activities of subordinates and providing guidance and
assistance; insuring the review of the listing of non processed or
suspended documents; reviewing existing procedures and processing
documents; performing other delineated duties and related duties as
required.
Discussion: The question to be answered is whether you, in your
capacity as a Tax Examiner III for Revenue, are to be considered a
"public employee." The Ethics Law defines that term as follows:
65 P.S. §402.
Section 2. 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.
"Public employee" shall not include individ-
uals who are employed by the State or any
political subdivision thereof in teaching as
distinguished from administrative duties.
Swantko, Daniel, 95 -580
July 6, 1995
Page 4
The regulations of the State Ethics Commission similarly
define the term public employee as above with the additional
following criteria:
(ii) The following criteria will be
used, in part, to determine whether an
individual is within the definition of "public
employee ":
(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.
(G) The individual makes final technical
recommendations.
(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.
Swantko, Daniel, 95 -580
July 6, 1995
Page 5
(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.
Swantko, Daniel, 95 -580
July 6, 1995
Page 6
51 Pa. Code §11.1.
(C) School teachers and clerks of the
schools.
The question you present must be reviewed under these
provisions of the statute and the regulations of the Commission in
light of your duties and obligations as described in your job
description and /or classification specifications, under which you
operate. The inquiry necessarily focuses on the job itself and not
on the individual incumbent in the position, the variable functions
of the position, or the manner in which a particular individual
occupying a position may carry out those functions. See Phillips
v. State Ethics Commission, 79 Pa. Commw. 491, 470 A.2d 659 (1984) ;
and Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982).
Also, in reviewing your question, the Commonwealth Court in
its ruling in Phillips, supra, at page 661, directs that coverage
of the Ethics Act be construed broadly, rather than narrowly, and
conversely, directs that exclusions from the Ethics Law should be
narrowly construed. Based upon this directive and reviewing the
definition of "public employee" in the statute and the regulations
and opinions of this Commission, in light of your job functions and
the information available to us, the necessary conclusion that you
are a "public employee" subject to the financial reporting and
disclosure requirements of the State Ethics Act.
It is clear that in your capacity as a Tax Examiner III, you
have the ability to recommend official action with respect to
subparagraphs 3, 4, and 5 within the definition of "public
employee" as set forth in the Ethics Law, 65 P.S. §402. These
activities fall within the definition of public employee as
contained in the regulations of the Commission in Section 11.1,
subparagraph E, F, G, H, and I. 51 Pa. Code §11.1. Under these
circumstances and given your duties and responsibilities as
outlined above, you are a "public employee" as that term is defined
in the Ethics Law.
Conclusion: You are to be considered a "public employee" in your
capacity as a Tax Examiner III with the Department of Revenue.
Accordingly, you must file a Statement of Financial Interests for
each year in which you hold the position outlined above and for the
year following your termination of this service.
If you have not already done so, a Statement of Financial
Interests must be filed within 30 days of this Advice. This
Statement of Financial Interests would report information of the
prior calendar year.
Pursuant to Section 7(11), this Advice is a complete defense
Swantko, Daniel, 95 -580
July 6, 1995
Page 7
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.
such.
This letter is a public record and will be made available as
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 513.2(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.
i cerely,
Vincent Dopk+o
Chief Counsel