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HomeMy WebLinkAbout23-522 LinebaughPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL April 27, 2023 To the Requester: Douglas R. Linebaugh Dear Mr. Linebaugh: 23-522 This responds to your Financial Disclosure Appeal Form received April 4, 2023, which will be treated as a request for an advisory from the Pennsylvania State Ethics Commission ("Commission") as to the issue presented below: Issue: Whether, as an Applications Developer 2 with the Pennsylvania State Police under job code 01522, you are a "public employee" subject to the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sec .., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et sec ., and particularly, the requirements for filing Statements of Financial Interests. BriefAnswer: YES. Upon review of your official Commonwealth position description and the job specifications under job code 01522, as an Applications Developer 2 with the Pennsylvania State Police, you are a "public employee" subject to the provisions of the Ethics Act and the Regulations of the State Ethics Commission, and you are therefore required to file Statements of Financial Interests pursuant to the Ethics Act. Facts: You seek a determination as to whether, as an Applications Developer 2 with the Pennsylvania State Police under job code 01522, you are a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission, and in particular, the requirements for filing Statements of Financial Interests. Linebaugh, 23-522 April 27, 2023 Page 2 You have submitted a copy of your official Commonwealth position description ("the Position Description"), which is incorporated herein by reference. A copy of the job classification specifications for the position of Applications Developer 2 (job code 01522) has been obtained and is also incorporated herein by reference. The Position Description lists your department as the Pennsylvania State Police and your organization as the Pennsylvania State Police Information Technology Services Division. Per the Position Description, you are assigned to the Enterprise Applications Section, Legacy Applications Maintenance Unit, and you are responsible for developing and maintaining administrative applications, testing, creating and updating documentation, interacting with users, and working on Help Desk tickets. Your job duties and responsibilities include: • Developing the necessary coding through the use of various software packages and programming languages for complex areas of program development, evaluating complex programs by determining the most effective code in order to provide efficient computer utilization, and providing management with information regarding system operational requirements, changes, and enhancements to complex applications; • Performing independent computer systems analysis of existing applications and making recommendations for improvements, documenting and providing specifications for improvements, and communicating with business owners to discover application requirements and with end users to discover current and needed workflows and processes; • Testing and debugging coded programs, monitoring production processes through a resource account, and setting up users for access to applications; • Documenting complex applications by preparing System Requirements Document, preparing system flow diagrams, writing user guides, and writing Help Desk Standard Operating Procedures; and • Providing system support by answering user questions about application problems or procedures directly or through the Pennsylvania State Police Help Desk tickets. Position Description, at 1-2. Per the job classification specifications under job code 01522, an Applications Developer 2 performs advanced technical work in the analysis, planning, design, programming, and maintenance of computer applications. The examples of work performed by an Applications Developer 2 include the following: • Meets with users or business analysts to determine existing business processes, problems, objectives, and requirements in order to design or modify a system solution that will meet user needs; • Identifies design alternatives, including the technical and economic feasibility of each alternative, and develops recommendations for system parameters, including proposed schedule and projected costs for development; • Develops specifications for the proposed business system, including report layouts, screens, input documents and forms file design, forms design, and physical file structure; Linebaugh, 23-522 April 27, 2023 Page 3 • Utilizes standard and advanced computer system design techniques, software development lifecycle methodologies, and developmental tools; • Determines database requirements and prepares database design; • 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; • Reviews and monitors vendor work in accordance with specifications; • Reviews complex commercially available software to determine whether available products meet system requirements or whether traditional application development is required; • Performs complex customizations of commercially available software products to provide functionality not originally provided; • Performs complex business intelligence functions for data warehouses and develops complex middleware solutions; and • Functions as a lead worker for technical work by assigning and reviewing work, training employees, and performing quality control functions for the work. Job classification specifications (job code 01522), at 1-3. On your Financial Disclosure Appeal Form, you state that the duties of your position consist of developing and maintaining software and supporting its users. You further state that you are not involved in any activities that would fall within any of the five categories of activities set forth in the Ethics Act's definition of the term "public employee." 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 facts that the requester has submitted, the 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. The Ethics Act defines the term "public employee" as follows: § 1102. 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: Linebaugh, 23-522 April 27, 2023 Page 4 (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. The term shall not include individuals who are employed by this Commonwealth or any political subdivision thereof in teaching as distinguished from administrative duties. 65 Pa.C.S. § 1102. The Regulations of the State Ethics Commission similarly define the term "public employee" and set forth the following additional criteria: (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of "public employe": (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. Linebaugh, 23-522 April 27, 2023 Page 5 (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. (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. (C) School teachers and clerks of the schools. Linebaugh, 23-522 April 27, 2023 Page 6 51 Pa. Code § 11.1. The following terms are relevant to your inquiry and are defined in the Ethics Act as follows: § 1102. Definitions "Ministerial action." An action that a person performs in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of the person's own judgment as to the desirability of the action being taken. "Nonministerial actions." An action in which the person exercises his own judgment as to the desirability of the action taken. 65 Pa.C.S. § 1102. Status as a "public employee" subject to the Ethics Act is determined by an objective test. The 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. Typically, the powers and duties of the position are 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 functions that the individual may actually perform in the position. See, Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion 04-002; Shienvold, Opinion 04-001; Shearer, Opinion 03-011. The Commonwealth Court of Pennsylvania has specifically considered and approved this Commission's objective test and has directed that coverage under the Ethics Act be construed broadly and that exclusions under the Ethics Act be construed narrowly. See, Quaglia v. State Ethics Commission, 986 A.2d 974 (Pa. Cmwlth. 2010), amended by, 2010 Pa. Commw. LEXIS 8 (Pa. Cmwlth. January 5, 2010), allocator denied, 607 Pa. 708, 4 A.3d 1056 (2010); Phillips, supra. The first portion of the statutory definition of "public employee" includes individuals with authority to take or recommend official action of a nonministerial nature. 65 Pa.C.S. § 1102. Likewise, the regulatory criteria for determining status as a public employee, as set forth in 51 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 prepare 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, e.g., Reese/Gilliland, Opinion 05-005. Conclusion: In applying the objective test in the instant matter, the necessary conclusion is that in your capacity as an Applications Developer 2 with the Pennsylvania State Police under job code 01522, Linebatigh, 23-522 April 27, 2023 Page 7 you are a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. It is clear that as an Applications Developer 2 under job code 01522, you have the ability to take or recommend official action of a nonministerial nature with respect to subparagraph (5) within the definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. § 1102. Specifically, your authority to: (1) develop recommendations for systems parameters, including projected costs for development; (2) develop specifications for the proposed business system; (3) review and monitor vendor work; and (4) review 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. Cf., Wertz, Opinion 18-001. 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). Therefore, you are advised that as an Applications Developer 2 with the Pennsylvania State Police under j ob code 01522, you are a "public employee" subj ect to the provisions of the Ethics Act and the Regulations of the State Ethics Commission, and you are therefore required to file Statements of Financial Interests pursuant to the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, an 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, provided the requester 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. 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 § 13.2(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. Respectfully, Bridget K. Guilfoyle, Chief Counsel