Loading...
HomeMy WebLinkAbout267 JohnsonMichael Johnson, Commissioner c/o Charles Hoffman, Esquire Commonwealth of Pennsylvania Pennsylvania Public Utility Commission P.O. Box 3265 Harrisburg, Pennsylvania 17120 RE: File No. 83 -106 -C Dear Commissioner Johnson: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION February 17, 1984 Order No. 267 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 a member of the Pennsylvania Public Utility Commission (PUC), you participated in establishing a procedure for the use of "acknowledgement" form must be filled out and signed for each Financial Interest Statement (FIS) which persons asked to review a Log Sheet to identify and record the person seeking access to Financial Interest Statement forms and for notification to employees whose forms have been accessed and that these procedures 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 a member of the Pennsylvania Public utility Commission (PUC) and as such, you are a "public official" subject to the provisions of the Ethics Act. 2. The Personnel Office of the PUC and Director under regulations adopted by the PUC is designated as the "custodian" of the PUC's files and records relating to personnel. Michael Johnson Page 2 3. The PUC Personnel Director is responsible for and does 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 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, the Personnel Director proposed that a procedure be adopted by the PUC to facilitate these duties. a. In March, 1980, in executive session, the PUC and you as a member thereof discussed the question of a procedure to be adopted for filing, maintaining, and accessing FIS forms filed with the PUC. b. completion; February 17, 1984 At that time, the "concept" that an acknowledgement form should be utilized and executed when access to FIS forms was made was approved. c. The Personnel Director was 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 the PUC Personnel 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. Michael Johnson February 17, 1984 Page 3 b. 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. Michael Johnson 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. 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, Personnel Director, William Bauer, hereafter Bauer, 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. Michael Johnson Page 5 February 17, 1984 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. 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. Bauer indicated he 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. Neither Edward M. Seladones nor anyone in the State Ethics Commission office intentionally or negligently led Bauer to the belief set forth in (f) above or knew or should have had reason to know, based on Bauer's memorandum of April 30, 1980, that you, Bauer or the PUC 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 Bauer to act or make the assumption, see (f) above, upon which Bauer may have justifiably relied to his or your detriment or that of the PUC. 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. g. b. Following the procedure outlined above (see No. 5) a date, time, and place for access /review was arranged at which time Bauer presented Mr. Schnierle with the proposition that the Michael Johnson February 17, 1984 Page 6 "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. 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. 8. 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 official" 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 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). Michael Johnson February 17, 1984 Page 7 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). 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 a member of the PUC to be ultimately responsible for the operations, policies, and procedures of the PUC. 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 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 - pointing potential violations of Section 3(f) of the Ethics Act which states that: Michael Johnson Page 8 February 17, 1984 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 system 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 public documents. The need to know who is reviewing these forms, for purposes of identification of violations of Sec. 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. 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 amended or eliminated immediately. Instead, we suggest policy icy PUC C the PUC s be current procedures with our concerns in mind. We suggest that you par review its in such a review to the extent possible within the ticipate e 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. Michael Johnson February 17, 1984 Page 9 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. 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). By the Commission, a ul J. Chairma 5th