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HomeMy WebLinkAbout04-557 WilsonSteve Wilson Clerk 2 Department of Revenue 5 Floor, Strawberry Square Harrisburg, PA 17128 Dear Mr. Wilson: ADVICE OF COUNSEL May 27, 2004 04 -557 Re: Public Employee; FIS; Taxpayer Assistance Technician; Pennsylvania Department of Revenue; Financial Disclosure Appeal. This responds to your letter dated May 3, 2004, and Financial Disclosure Appeal Form which will be treated as a request for advice from the State Ethics Commission. Issue: Whether as a Taxpayer Assistant Technician with the Pennsylvania rtment of Revenue (Revenue) you would be considered a "public employee" subject to the Public Official and Employee Ethics Act (the "Ethics Act "), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, and particularly, the requirements for filing Statements of Financial Interests (SFI's). Facts: You seek a determination as to whether, in your capacity as a Taxpayer Assistant Technician with Revenue, 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 SFI's. You have supplied a copy of your job description which is incorporated herein by reference. Your duties and responsibilities include the following: • "Employees in this class are responsible for providing assistance to taxpayers or their representatives in the areas of sales /use tax, hotel occupancy tax, corporation tax, employer withholding, personal income tax, property tax /rent rebate and inheritance tax. The Taxpayer Assistance Technician will work independently within established guidelines and in conformity with state laws, rulings and regulations. • Interrogates tax systems (sales, corporate, employer withholding, personal income and property /rent rebate) to ascertain adequate information in order to correctly respond to taxpayer inquiries. • Assists and advises taxpayer in the proper manner of completing returns and reports as they pertain to the above taxes. Wilson, 04 -557 May 27, 2004 Page 2 • Receives incoming calls from taxpayer or their representative and responds accordingly. • Receives correspondence from inquiring taxpayer or their representative and responds either verbally or in writing. • Gathers necessary documentation from taxpayer or representative and prepares proper department form in order to correctly adjust the taxpayer's account. • Leads and conducts training for temporary personnel in the area of personal income tax and property tax/rent rebate. • Schedules temporary office sites during the "tax season" and maintains customer service records and form inventory for both the temporary sites and permanent work location. • Delivers and arranges presentations upon request from the private sector concerning tax laws, regulations, rules and policy. • Prepares reports concerning the effectiveness of taxpayer service and makes recommendations concerning the same. • Operates business machines, CRT and communications equipment. • Counter person /receptionist for all personal business, taxpayer inquiries /questions/ forms and information." * ** Discussion: 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: (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. Wilson, 04 -557 May 27, 2004 Page 3 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 recommen- dations. (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. (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 Wilson, 04 -557 May 27, 2004 Page 4 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. 51 Pa. Code § 11.1. Status as a "public employee" subject to the Ethics Act is determined by applying the above definition and criteria to the position held. The focus is necessarily upon the position itself, and not upon the individual incumbent in the position, the variable functions of the position, or the manner in which a particular individual occupying the position may carry out those functions. See, Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Commw. Ct. 1984); and I�mmau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982). Furthermore, the Commonwealth Court of Pennsylvania has directed that coverage under the Ethics Act be construed broadly and that exclusions under the Ethics Act be construed narrowly. See, Phillips, supra. Based upon the above judicial directives, the provisions of the Ethics Act, the State Ethics Commission Regulations, and the opinions of the State Ethics Commission, in light of your duties and responsibilities, the necessary conclusion is that you are a "public employee" subject to the financial reporting and disclosure requirements of the Ethics Act. Specifically, you work independently to assist taxpayers or their representatives as to Pennsylvania taxes; assist and advise taxpayers in completing tax returns; prepare the forms to adjust taxpayer's accounts; lead and conduct training for certain temporary personnel; and prepare reports as to taxpayer service and make recommendations therein. It is clear that in your capacity as a Taxpayer Assistant Technician, you have the ability to take or recommend official action with respect to subparagraph (5) within the definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. § 1102. These activities 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," subparagraph (ii). Therefore, you are a "public employee" subject to the Ethics Act and you are required to file Statements of Financial Interests pursuant to the Ethics Act. Parenthetically, you have not indicated that you have ever challenged or sought to modify your job description in terms of the delineated duties and responsibilities. As Wilson, 04 -557 May 27, 2004 Page 5 noted, the job description controls in determining whether you are a public employee required to file SFI's. Conclusion: In your capacity as a Taxpayer Assistant Technician with the Department of Revenue, you are a "public employee" subject to the Public Official and Employee Ethics Act and the Regulations of the State Ethics Commission. Accordingly, you must file a Statement of Financial Interests each year in which you hold the aforesaid position and the year following your termination of such service. If you have not already done so, a Statement of Financial Interests must be filed within 30 days of this Advice. Pursuant to Section 1107(11), 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 requestor 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. Sincerely, Vincent J. Dopko Chief Counsel