HomeMy WebLinkAbout25-514 Swanger
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
April 11, 2025
To the Requester:
Zane N. Swanger
25-514
Dear Mr. Swanger:
This responds to your Financial Disclosure Appeal Form received March 20, 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:
Whetheran individual who began employment as an Information Technology Executive 2
with the Governor’s Office of Administration(“Office of Administration”)in 2025 prior
to May 1 would be required to file a Statement of Financial Interests for calendar year 2024
pursuant to Section 1104(a) of the Public Official and Employee Ethics Act (“Ethics Act”),
65 Pa.C.S. § 1104(a).
Brief Answer: YES.Upon review of anofficial Commonwealth position description and
the job classification specifications for the individual’s current Commonwealth position,
the necessary conclusion is that as an Information Technology Executive 2 with the Office
of Administration, the individual is a “public employee” subject to the Ethics Act, and
particularly the requirements for filing Statements of Financial Interests. Section 1104(a)
of the Ethics Act requires a public employee of the Commonwealth to “file a statement of
financial interests for the preceding calendar year with the department, agency, body or
bureau in which he is employed … no later than May 1 of each year that he holds such a
position and of the year after he leaves such a position.” See, Section 1104(a) of the Ethics
Act) (Emphasis added). Because the individual began holding his public employee
position as an Information Technology Executive 2 in 2025 prior to May 1, the individual
is required to file a Statement of Financial Interests for calendar year 2024 by May 1, 2025.
Swanger, 25-514
April 11, 2025
Page 2
Facts:
During 2024 you were employed as an Elections Analyst 3 with the Pennsylvania
Department of State(“Department of State”). On a date in 2025prior to March 20, 2025, you
began employment as an Information Technology Executive 2 with the Office of Administration.
While you were employed as an Elections Analyst 3 with the Department of State, you were not
required to file Statements of Financial Interests.
You seek a determination as to whether, in your current capacity as an Information
Technology Executive 2 with the Office of Administration, you are a “public employee” subject
to the Ethics Act and in particular, the requirements for filing Statements of Financial Interests.
A copy of an official Commonwealth position description (the “Position Description”) for
the position of Information Technology Executive 2 has been obtained and is incorporated herein
by reference. Per the Position Description, an Information Technology Executive 2 oversees
incident management and support for network, security, voice, and computer services. The
position involves developing strategies for effective incident management and supervising the
Enterprise Monitoring Section responsible for continuous status availability of OA/IT services.
The duties of an Information Technology Executive 2 include the following:
Leading the incident management process by coordinating the identification,
analysis, and resolution of IT incidents;
Acting as the primary point of contact for escalations during critical incidents and
ensuring swift resolution and communication with stakeholders;
Developing and maintaining incident management procedures, collaborating with
IT teams to perform root cause analysis of incidents, implementing corrective
actions to prevent recurrence of incidents, and ensuring timely and accurate
reporting of incidents;
Supervising the Enterprise Monitoring Section, providing administrative and
technical supervision to technicians, and evaluating the work of staff involved in
the design, installation, operation and maintenance of IT networks;
Performing periodic employee performance evaluations in accordance with human
resources policy requirements, managing and maintaining adequate staff coverage
for supported locations, and evaluating and approving staff leave requests;
Making recommendations for annual budget projections for the Bureau of
Infrastructure Operations, including projected hardware/software needs, upgrade
prioritization, cost estimates, and justifications;
Directing the development of policies and procedures consistent with
Commonwealth standards and direction; and
Designing agency disaster recovery plans for the network infrastructure and
participating in periodic plan updates and testing exercises.
Position Description, at 1-2. Per the Position Description, the decision making responsibilities of
an Information Technology Executive 2 include evaluating new products and emerging
technologies and determining how they can be used effectively within the managed network.
Swanger, 25-514
April 11, 2025
Page 3
A copy of the job classification specifications for the position of Information Technology
Executive 2(job code 01722) have also been obtained and are incorporated herein by reference.
Per the job classification specifications, an Information Technology Executive 2 is responsible for
performing IT work in an IT delivery center or in the OA central office. The work of an
Information Technology Executive 2 generally involves serving as a consultant or technical expert
for IT services, managing IT services and developing planning strategies for incorporating and
integrating new or revised IT technologies, and evaluating IT services. The examples of work
performed by an Information Technology Executive 2 include the following:
Manages IT services, organizations, programs, and resources;
Develops and implements IT policies, strategies, procedures, and programs;
Integrates IT services and technologies across organizations and serves as a project
leader for IT initiatives;
Serves as a liaison between business/customer organizations and IT service
providers whose purpose is to align business needs with services provided by IT
for a larger delivery center;
Manages the statewide risk management program for information technology in
support to the Commonwealth’s Chief Information Security Officer;
Serves as the central office Data Scientist;
Serves as the Executive Director of Pennsylvania’s State Geospatial Coordinating
Board;
Serves as an Enterprise Solution Architect in the Enterprise Technology Services
Office;
Manages the information technology security program for a smaller delivery center;
Manages the business and service management program for a smaller delivery
center, including directing project management, portfolio management, policy and
standards development, strategic planning, business analysis, procurement, IT
financial management, and supplier/contract management;
Serves as the Technology Services Office’s Solution Architect for the most
complex environments, which involves identifying the software and hardware
necessary for a long-term supportable technical architecture model that includes
applications, server environments, network, cloud, software licenses, and other
technical considerations; and
Performs the full range of supervisory duties.
Job classification specifications (job code 01722), at 2-3.
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
Swanger, 25-514
April 11, 2025
Page 4
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.
Section 1104(a) of the Ethics Act provides, in pertinent part, that each public official and
public employee of the Commonwealth must file a Statement of Financial Interests for the
preceding calendar year by May 1 of each year that he holds the position and the year after he
leaves the position:
§ 1104. Statement of financial interests required to be filed
(a) Public official or public employee.--Each public
official of the Commonwealth shall file a statement of financial
interests for the preceding calendar year with the commission no
later than May 1 of each year that he holds such a position and of
the year after he leaves such a position. Each public employee and
public official of the Commonwealth shall file a statement of
financial interests for the preceding calendar year with the
department, agency, body or bureau in which he is employed or to
which he is appointed or elected no later than May 1 of each year
that he holds such a position and of the year after he leaves such a
position. Any other public employee or public official shall file a
statement of financial interests with the governing authority of the
political subdivision by which he is employed or within which he is
appointed or elected no later than May 1 of each year that he holds
such a position and of the year after he leaves such a position.
Persons who are full-time or part-time solicitors for political
subdivisions are required to file under this section.
65 Pa.C.S. § 1104(a)(Emphasis added).
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
Swanger,25-514
April 11, 2025
Page 5
(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.
(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.
Swanger,25-514
April 11, 2025
Page 6
(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.
51 Pa. Code § 11.1.
Swanger, 25-514
April 11, 2025
Page 7
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 ina 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 Executive 2 with the Office of Administration under job code
01722, you are a “public employee” subject to the Ethics Act.
Swanger,25-514
April 11, 2025
Page 8
It is clear that as an Information Technology Executive 2 under job code 01722, you have
the ability to take or recommend official action of a nonministerial naturewith 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:
Make recommendations for annual budget projections for the Bureau of
Infrastructure Operations, including projected hardware/software needs, upgrade
prioritization, cost estimates and justifications;
Perform periodic employee performance evaluations in accordance with human
resources policy requirements and evaluate and approve staff leave requests;
Evaluate new products and emerging technologies and determine how they can be
used effectively within the managed network;
Manage the business and service management program for a smaller delivery
center, including directing project management, portfolio management, policy and
standards development, strategic planning, business analysis, procurement, IT
financial management, and supplier/contract management;
Serve as the Technology Services Office’s Solution Architect for the most complex
environments, which involves identifying the software and hardware necessary for
a long-term supportable technical architecture model that includes applications,
server environments, network, cloud, software licenses, and other technical
considerations; 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 Executive 2 with the Office
of Administration under job code 01722,you are a “public employee” subject to the provisions of
the Ethics Act, and you are therefore required to file Statements of Financial Interests pursuant to
the Ethics Act. Because you began employment as an Information Technology Executive 2 in 2025
prior to May 1, you are required to file a Statement of Financial Interests for calendar year 2024 by
May 1, 2025, pursuant to Section 1104(a) of 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.
Swanger, 25-514
April 11, 2025
Page 9
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