HomeMy WebLinkAbout255 BauerMr. William Bauer
c/o Mark C. Stephenson
Commonwealth of Pennsylvania
Pennsylvania Public Utility Commission
P.O. Box 3265
Harrisburg, Pennsylvania 17120
RE: File No. 83 -103 -C
Dear Mr. Bauer:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
February 17, 1984
Order No. 255
The State Ethics Commission has received a complaint regarding you and a
possible violation of Act 170 of 1978. The Commission has now completed its
investigation. The individual allegations, conclusions and findings on which
those conclusions are based are as follows:
I. Allegation: That as Personnel Director of the Pennsylvania Public Utility
Commission (PUC), you originally, on July 1, 1983, stated that an
"acknowledgement" form must be filled out and signed for each Financial
Interest Statement (FIS) which persons asked to review and subsequently,
allowed review of the requested FIS forms, after a person (other than the
requestor) had filled out said acknowledgement form. These actions allegedly
violate 65 P.S. 404(f) and constitute "harassment" and an attempt to inhibit
or deny access to public records.
A. Findings:
1. You serve as Personnel Director of the Pennsylvania Public Utility
Commission (PUC) and as such, you are a "public employee" subject to
the provisions of the Ethics Act.
2. As Personnel Director and under regulations adopted by the PUC, your
office - is designated as the "custodian" of the PUC's files and
records relating to personnel.
Mr. William Bauer February 17, 1984
Page 2
3. As Personnel Director, you are responsible for and do perform the
following tasks, among others, with respect to the filing of
Financial Interest Statements (FIS) as required by the Ethics Act:
a. identifies public employees /officials required to file an FIS;
b. forwards package of material including FIS to such persons for
completion;
c. receives and records filing of FIS;
d. maintains FIS forms received;
e. receives and processes requests for access to FIS forms so filed
and maintained.
4. In conjunction with the tasks and responsibilities outlined above,
you proposed that a procedure be adopted by the PUC to facilitate
these duties.
a. In March, 1980, in executive session, the PUC discussed the
question of procedure to be adopted for filing, maintaining, and
accessing FIS forms filed with the PUC.
b. At that time, the PUC approved the "concept" that an
acknowledgement form should he utilized and executed when access
to FIS forms was made.
c. You were instructed to proceed to develop such a form and
implement a procedure for its use.
d. Such a form was developed along with a "Log Sheet" and a
procedure was developed for accessing the FIS forms filed with
and maintained by your office.
5. The procedure for accessing the FIS forms which was developed,
committed to writing and implemented and which was applicable
during all times pertinent to this proceeding involved the following
steps of importance to our review:
a. The individual requesting access, the requestor, states the FIS
forms they wish to review.
Mr. William Bauer February 17, 1984
Page 3
h. The Personnel Director reviews the request, notifies the
Director of Operations within the PUC of the request, and
notifies the requestor of the date, time and place to review the
forms.
c. The Personnel Director permits and supervises the review at the
appointed time, date, and place allowing copies to be made upon
request and recording the charge made and collected for same.
d. The Personnel Director following review, completes a log sheet
which records the name, address and organization (if any) of the
requestor, name of the employees /officials whose FIS was
reviewed, the number of copies made and paid for, and the name
of the Personnel Office employee who assisted at the review of
the forms.
e. The requestor is asked to complete an "Acknowledgement of
Inspection of Statement of Financial Interests" form hereafter
the "Acknowledgement" form, which is counter - signed by a
Personnel Office employee, a copy of which is retained with the
Log Sheet and a copy of which is sent to the person whose FIS
was reviewed.
6. The "Acknowledgement" form:
a. recognizes that the FIS is a public document to be made
available for public inspection and copying;
b. contains the statement that The undersigned (requestor)
acknowledges that the statement of financial interest filed by
was provided for inspection and copying at cost
during regular office hours."
c. contains the statement that:
"Any unlawful or unwarranted use of this
statement shall be the responsibility of the
person or persons using this information in
violation of the rights or privileges of the
person required to file the statement."
d. or execution thereof is not a condition precedent to obtaining
access to FIS forms and if a requestor does not sign the
"Acknowledgement" form, access is permitted nevertheless.
Mr. William Rauer February 17, 1984
Page 4
e. was not designed to inhibit or deny access to FIS forms, but was
designed and used primarily to maintain the integrity of the
records, to inform persons whose form had been accessed of the
event, to advise the requestor of the requirements of the Ethics
Act and to place responsibility upon the requestor
for use of accessed information, and to record the fact that
access to and copies of requested forms had been provided and
copies paid for, if applicable.
7. The "Log Sheet" was not designed to inhibit or deny access to FIS
forms but was designed and used primarily to record access
requests.
8. You indicate that the Governor's Director of Personnel, Charles
Sciotto, in a memorandum dated April 16, 1980, to "All Personnel
Directors" stated that a record should be maintained of all access
to the Financial Interest Statements maintained by Personnel Offices
and that such a record should include the name and address of the
requestor and date of inquiry.
a. We have verified that such a memo was sent, although there is
some question of its binding effect upon the PUC.
b. The subsequently issued Management Directives relating to FIS
procedures and access (No. 205.10 dated March 23, 1981; No.
205.12 dated June 30, 1981; No. 205.12 Amended dated February
18, 1982; No. 205.10 Amended dated February 18, 1982 and No.
205.10 Amended dated March 4, 1983) do not refer to or require
such records or logs be maintained as to accessing FIS forms.
9. By memo dated March 30, 1980, you forwarded a copy of the
"Acknowledgement" form and Log Sheet to Edward M. Seladones,
Executive Director of the State Ethics Commission.
a. This memo did not seek the "approval" of Edward M. Seladones or
the State Ethics Commission for use of these forms and neither
the Ethics Act nor State Ethics Commission regulations provides
for seeking or giving such "approval" to an agency to permit or
deny usage of such forms or implimentation of the policy
associated with same.
b. This memo did not request advice or opinion from the State
Ethics Commission under Section 7(9) of the Ethics Act as to
your duties and obligations under the Ethics Act nor was any
such Advice /Opinion issued in response to this memo.
c. This memo did not outline any procedure associated with the use
of these forms.
Mr. William Bauer February 17, 1984
Page 5
d. There is no record of any response from Edward M. Seladones to
this form, but a conversation was recalled by Edward M.
Seladones wherein the topic of accessing procedures to be
adopted by the PUC was discussed.
e. This conversation made it clear that any system or procedure
must meet the basic requirement of the Ethics Act that FIS
forms be available for public inspection and copying.
f. You indicate you relied upon the lack of a response by the State
Ethics Commission to this memo and reviewed same as an
indication that the use of the "Acknowledgement" form and Log
Sheet were in conformity with the Ethics Act or acceptable to
the State Ethics Commission.
g. Neither Edward M. Seladones nor anyone in the State Ethics
Commission office intentionally or negligently led you to the
belief set forth in (f) above or knew or should have had reason
to know, based on your memorandum of April 30, 1980, that you
would rely on the lack of response to same in adopting and using
these forms or any procedure, not articulated in said memo,
associated with same.
h. There was no misrepresentation on the part of Edward M.
Seladones or otherwise that induced you to act or make the
assumption, see (f) above, upon which you may have justifiably
relied to your detriment.
10. On or about June 10, 1983, access was requested to all FIS forms
filed by PUC employees /officials.
a. This request was presented by M. Schnierle acting as President
of the Commonwealth Bar Association.
b. Following the procedure outlined above (see No. 5) a date, time,
and place for access /review was arranged at which time you
presented Mr. Schnierle with the proposition that the
"Acknowledgement" form should be signed as part of the
procedure.
c. Mr. Schnierle refused to agree to execute same.
d. Mr. Schnierle was permitted to review all FIS forms requested
and was not denied access to any requested form(s).
e. The "Acknowledgement" form was executed after Mr. Schnierle had
been given access to requested forms by a member of the staff of
the PUC Personnel Office.
Mr. William Bauer February 17, 1984
Page 6
f. The application of the standard procedure or request that the
requestor (Schnierle) comply with same was not designed to deny
access, or constitute an attempt to discourage request(s) for
access.
11. The procedure outlined above, even when access is permitted,
operates to or tends to prohibit and /or curtail access and requests
by posing unnecessary barriers, burdens, and repurcussions to the
requestor, especially when reviewed in light of the benefits to be
derived from same, i.e., document control; identification and
recordation of accessing individual; notification to requestor of
requirements of the Ethics Act, regarding misuse of financial data
and indentification of requestors for potential complaint
proceedings for violation of Section 3(f) of the Ethics Act.
B. Discussion: We received a Petition for Reconsideration in this matter
which was granted and the arguments in that Petition are considered in the
following discussion. Our discussion and conclusions set forth below reflect
our consideration of the arguments and elements of said Petition as well as
other data developed in the course of our investigation of this complaint.
You are a "public employee" as that term is defined in the Ethics Act and
your conduct as such must conform to the requirements of the Ethics Act. The
Ethics Act requires that:
Section 4. Statement of financial interests required to be filed.
(f) All statements of financial interest filed pursuant to
the provisions of this act shall be made available for
public inspection and copying during regular office
hours. 65 P.S. 404(f).
Further, Section 4.5 of the regulations of the State Ethics Act states:
(b) Every governmental body required to maintain
Statements of Financial Interests shall make them
available for public inspection and copying.
51 Pa. Code 4.5(b).
(c) Statements of Financial Interests more than a year old
must be made available for public inspection and copying
within two working days after the request has been made
for such statements. All such statements shall be kept on
file for five years. 51 Pa. Code 4.5(c).
Mr. William Bauer February 17, 1984
Page 7
Penalties for violations of Section 4 of the Ethics Act, in Section 9 are
as follows:
Section 9. Penalties.
(b) Any person who violates the provisions of Section 4 is
guilty of a misdemeanor and shall be fined not more than
$1,000 or imprisoned for not more than one year, or be
both fined and imprisoned. 65 P.S. 409(b).
It is your duty as Personnel Director of the PUC to insure that the FIS
forms filed with the PUC are maintained and available in accordance with the
requirements of the Ethics Act and State Ethics Commission regulations. As
such, you play a role in insuring that the FIS forms filed with the PUC are
maintained and available in accordance with the requirements of the Act and
Commission regulations. The Ethics Act requires that these documents be
available for public inspection. As found above, there has been no denial of
access and that the accessing system adopted was not designed to deny access
to these public records. Neverthelesss, we are concerned about adoption,
implementation and application of any procedure which has the effect of
inhibiting requests for FIS forms or curtailing access to same and such a
procedure must be frowned upon. A procedure which makes it burdensome,
time - consuming, or embarrasing to a member of the public to request or review
an FIS might run afoul of the letter and spirit of Section 4(f) of the Ethics
Act. We appreciate your concern for the integrity of the records (FIS forms)
you are charged to maintain. The identity of the requestor is not required
for adequate document control. We also recognize your desire to record the
identity of the requestor to better assist in pin - painting potential
violations of Section 3(f) of the Ethics Act which states that:
Section 3. Restricted activities.
(f) No person shall use for any commercial purpose
information copied from statements of financial interests
required by this act or from lists compiled from such
statements. 65 P.S. 403(f).
However, violations of Section 3(f), if alleged, must be dealt with
separately from consideration of whether proper access to public records has
been permitted. Even if a of recording and accessing would assist in
discerning potential violations of Section 3(f), we must balance this factor
against the clear dictate in the Act that these financial disclosure forms
must be made available as puhlic documents. The need to know who is reviewing
these forms, for purposes of identification of violations of Section 3(f), is
far outweighed by the public's right to have free, complete and easy access to
these records. The Act, first and foremost, demands accessibility to these
public records.
Mr. William Bauer February 17, 1984
Page 8
While we recognize that access under the procedure used here was allowed,
we also recognize that some PUC employees whose forms were accessed "resent"
this review and may be inclined to confront the requestor or reviewer. This
confrontation or the possibility of same could have the effect of inhibiting
requests or demands for access. You cannot control the reaction of other
persons upon learning that their FIS was reviewed. However, the possibility
of confrontation occurring and resulting in inhibiting requests for access
primarily arises as a result of the fact that the PUC Personnel office
pursuant to the procedure outlined above advises people that access has been
made of their FIS form(s).
However, we are reluctant, in the context of this complaint procedure, to
articulate binding standards to which all public agencies which maintain FIS
forms must adhere. You have convinced us that a general proceeding is the
better method for setting standards regarding maintaining and accessing FIS
forms.
Accordingly, we will not require that the present policy of the PUC be
amended or eliminated immediately. Instead, we suggest the PUC review its
current procedures with our concerns in mind. We suggest that you participate
in such a review to the extent possible within the scope of your duties at the
PUC. Additionally, we will open a proceeding for consideration of adoption of
a policy statement or regulations on the questions addressed in this Order.
We invite your participation in these proceedings and will solicit comments
from any other interested parties.
We also direct your attention to the provisions of the Ethics Act for
acquiring an Advice or Opinion regarding any person's duties and obligations
under the Ethics Act. See 65 P.S. 407(9).
C. Conclusion: On the facts as found above, we find no violation of the
Ethics Act. You personally have not violated the Ethics Act nor will this
matter be subject to criminal referral or sanctions, pursuant to our authority
set forth in Sec. 7(11) of the Ethics Act, 65 P.S. 407(11). However, the
questions of access raised in this proceeding are serious ones. We do not
state this policy violates the Ethics Act nor do we require that the current
policy be rescinded. However, you should review those parts of the procedure
over which you have control and the policy under which you operate. We will
initiate a proceeding to obtain public comment on this subject. After such a
proceeding, your agency will be properly notified of the conclusions reached
and any revisions required.
Mr. William Bauer February 17, 1984
Page 9
Our files in this case will remain confidential in accordance with Section
8(a) of the Ethics Act, 65 P.S. 408(a). However, this Order is final and will
be made available as a public document in accordance with 51 Pa. Code
2.38(a).
Any person who violates the confidentiality of a Commission proceeding is
guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned
for not more than one year or both, see 65 P.S. 409(e).
SSC /rdp
By the Commission,
644*
Paul J. mith
Chairman