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HomeMy WebLinkAbout25-507 Baddorf PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL February 13, 2025 To the Requester: Matthew Baddorf 25-507 Dear Mr. Baddorf: This responds to your Financial Disclosure Appeal Formreceived February 7, 2025, 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 Information Technology Manager 1 with the Governor’s Office of Administration, Office for Information Technology, under job code 01546, you are a “public employee” subject to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq., and particularly, the requirements for filing Statements of Financial Interests. Brief Answer: YES.Upon review of the job specifications under job code 01546, as an Information Technology Manager 1 with the Governor’s Office of Administration, Office for Information Technology, you area “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 Information Technology Manager 1 with the Governor’s Office of Administration, Office for Information Technology, under job code 01546, 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. Baddorf, 25-507 February 13, 2025 Page 2 A copy of the job classification specifications for the position of Information Technology Manager 1 (job code 01546) has been obtained and is incorporated herein by reference. Per the job classification specifications under job code 01546, an Information Technology Manager 1 performs highly responsible administrative work in planning, organizing, and directing significant information technology functions. Per the job classification specifications, the work of an Information Technology Manager 1 may include managing budgetary activities, assessing hardware and software products, negotiating and managing vendor contracts, and coordinating information technology resource acquisition. The examples of work performed by an Information Technology Manager 1 include the following: Plans, organizes and directs the analysis, design, development, implementation and operation of information technology resources in support of organization needs; Directs and manages the development, maintenance, evaluation and execution of the organization’s strategic information technology plan; Advises and recommends information technology and management strategies and serves as the organization’s internal and external contact with respect to information technology; Develops and administers information technology policies, guidelines, and hardware/software standards and organization-wide architectures and establishes priorities for systems development; Consults with executives and program managers to determine information systems priorities and requirements and develops data processing objectives to meet user needs; Serves as project manager for organization-wide systems development efforts and directs and supports multiple information systems development project teams; Directs and administers fiscal resources to provide the organization with responsive systems consistent with objectives and funding levels; Directs the establishment of priorities for high impact information technology initiatives and projects, develops cost estimates, determines staffing requirements, develops work plans and timelines, monitors project status, and oversees implementation; Directs the development of policies and procedures regarding the organization’s information technology infrastructure consistent with Commonwealth standards; Directs consultation with users to discuss software and hardware needs and assess existing hardware and software, and directs surveys of proposed modifications to support the overall departmental information technology infrastructure; Directs the preparation of specifications for the acquisition of hardware, software, and services and oversees the contractor’s work to ensure compliance with contract specifications; Directs the review of new or expanded information systems, design concepts, specifications, plans, contracts and other documents related to information technology resources; Directs and coordinates information technology technical support, security planning, disaster recovery, contracted services, acquisition, implementation, maintenance, training, and operational functions for the organization; Baddorf, 25-507 February 13, 2025 Page 3 Researches new technologies for enhancement to the organization’s information technology infrastructure; Monitors overall operational efficiency and initiates projects to improve performance; Directs all information technology support services provided by contracted vendors, maintains coordination, and performs quality assurance measures; Provides consultative guidance and direction to management on the utilization and capabilities of the organization’s information technology resources; Maintains currency with technology in order to make recommendations to management on the technological direction of the organization’s network infrastructure; and Performs the full range of supervisory functions. Job classification specifications (job code 01546), at 2-3. On your Financial Disclosure Appeal Form, you 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 materialfacts 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: (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. Baddorf, 25-507 February 13, 2025 Page 4 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. (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: Baddorf, 25-507 February 13, 2025 Page 5 (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. 51 Pa. Code § 11.1. The following terms are relevant to your inquiry and are defined in the Ethics Act as follows: § 1102. Definitions Baddorf, 25-507 February 13, 2025 Page 6 “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), allocatordenied, 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 Information Technology Manager 1 with the Governor’s Office of Administration, Office for Information Technology, under job code 01546, you are a “public employee” subject to the Ethics Act and the Regulations of the State Ethics Commission. It is clear that as an Information Technology Manager 1 under job code 01546, 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: Baddorf, 25-507 February 13, 2025 Page 7 Develop and administer information technology policies, guidelines, and hardware/software standards and organization-wide architectures; Direct and administer fiscal resources to provide the organization with responsive systems consistent with objectives and funding levels; Direct the establishment of priorities for high impact information technology initiatives and projects, develop cost estimates, determine staffing requirements, develop work plans and timelines, monitor project status, and oversee implementation; Direct the preparation of specifications for the acquisition of hardware, software, and services and oversee the contractor’s work to ensure compliance with contract specifications; Direct the review of new or expanded information systems, design concepts, specifications, plans, contracts and other documents related to information technology resources; Direct and coordinate information technology technical support, security planning, disaster recovery, contracted services, acquisition, implementation, maintenance, training, and operational functions for the organization; Direct all information technology support services provided by contracted vendors, maintain coordination, and perform quality assurance measures; Maintain currency with technology in order to make recommendations to management on the technological direction of the organization’s network infrastructure; and Perform the full range of supervisory functions, would be sufficient to establish your status as a “public employee” subject to the Ethics Act. 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 Information Technology Manager 1 with the Governor’s Office of Administration, Office for Information Technology, under job code 01546, 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. 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. Baddorf, 25-507 February 13, 2025 Page 8 Any such appeal must be in writing and must be actually receivedat 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