HomeMy WebLinkAbout25-528 Tully
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
June 2, 2025
To the Requester:
Kevin T. Tully
25-528
Dear Mr. Tully:
This responds to your Financial Disclosure Appeal Form received May 23, 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 a Fiscal Management Specialist 2 with the Pennsylvania Department of
Education (“Department of Education”) under job code 08120, you are a “public
employee” subject to the Public Official and Employee Ethics Act (“Ethics Act”), 65
Pa.C.S. § 1101 etseq., and the Regulations of the State Ethics Commission, 51 Pa. Code §
11.1 etseq., and particularly, the requirements for filing Statements of Financial Interests.
Brief Answer: YES. Upon review of your official Commonwealth position description and
the job classification specifications under job code 08120, as aFiscal Management
Specialist 2 with the Department of Education, 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 a Fiscal Management Specialist 2 with the
Department of Education under job code 08120, you area “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.
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June 2, 2025
Page 2
You have submitted a copy of your official Commonwealth position description (the
“Position Description”), which document is incorporated herein by reference. A copy of the job
classification specifications for the position of Fiscal Management Specialist 2 (job code 08120)
has been obtained and is also incorporated herein by reference.
Per the Position Description, aFiscal Management Specialist 2 prepares, reviews, and
analyzes fiscal information for the Department of Education. A Fiscal Management Specialist 2
is responsible for monitoring, analyzing, and controlling revenue, financial commitments, and
expenditures against the state CTE allocation and federal grant awards, budget, grants, contracts,
and other financial data. The duties of a Fiscal Management Specialist 2 include the following:
Managing the work of staff in the development of grant guidelines to ensure they
meet laws, regulations and standards governing programs and ensuring that staff
follow fiscal guidelines to approve and disapprove budgets and expenditures;
Creating special reports and managing staff analyses of requests made by the
Pennsylvania General Assembly, the Bureau of Fiscal Management, and
Department of Education management;
Managing the collection, examination, and summarization of fiscal information for
presentation and justification of an agency budget request, legislative hearing
budget package, and rebudget;
Managing the development, monitoring, and interpretation of spending plans and
other projections for the use and availability of funds in compliance with statutes,
policies, or other fiscal controls;
Monitoring sources of federal and other non-state revenue against the rebudget plan
and investigating variances from estimates to determine appropriate action; and
Researching and preparing financial information used in the budgeting and
rebudgeting process.
Position Description, at 1-2. Per the Position Description, the decision making responsibilities of
a Fiscal Management Specialist 2 include routinely making decisions regarding the development
of fiscal guidelines and processes, allowability of costs, application of federal and state regulations,
audit resolutions and fiscal management policies for federal grants.
Per the job classification specificationsunder job code 08120, a Fiscal Management
Specialist 2 performs complex or supervisory work in monitoring, analyzing, and controlling
revenue, financial commitments, and expenditures against a budget, grants, contracts, or other
financial data to advise management on the appropriate use and ensure the ongoing availability of
agency funds. The work involves reviewing and approving or recommending adjustments to
requests for the use of funds as well as preparing and reviewing agency budget requests, legislative
budget packages, and rebudgets. The examples of work performed by a Fiscal Management
Specialist 2 include the following:
Prepares and analyzes reports that reflect assets, liabilities, reserves, fund balances,
revenue and receipts, appropriations, commitments, expenditures, or other financial
obligations for the purposes of providing recommendations on the use of funds and
maintaining budgetary controls;
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June 2, 2025
Page 3
Collects, examines, and summarizes fiscal information for presentation and
justification of an agency budget request, legislative hearing budget package, and
rebudget;
Develops, monitors, and interprets spending plans and other projections for the use
and availability of funds in compliance with statutes, policies, or other fiscal
controls;
Researches and prepares information used in developing grant requests, distribution
of grant awards, and financial audits of grant recipients or sub-recipients, and
ensures compliance with related policies, regulations, and fiscal controls;
Monitors, corrects, and reconciles records of revenue, financial commitments, and
expenditures for financial and budgetary account closing and lapsing processes;
Conducts periodic meetings with program managers to review spending plans,
projections, and other fiscal information, and provides guidance and direction on
the use and availability of funds;
Reviews and approves, disapproves, or recommends adjustments to requests for
financial commitments and expenditures;
Assists in the development and implementation of, and ensures compliance with,
fiscal policies and controls related to the financial management of state and federal
funds, grants, entitlements, contracts, or other fiscal-related agreements;
Supervises or conducts the review, analysis, processing, and adjustment of financial
transactions affecting budgetary, operating, or other accounts; and
Performs the full range of supervisory functions.
Job classification specifications (job code 08120), at 2.
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 therequester 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.
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 positionand 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
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June 2, 2025
Page 4
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
(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”:
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June 2, 2025
Page 5
(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:
(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
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June 2, 2025
Page 6
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
“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
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June 2, 2025
Page 7
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 aFiscal Management Specialist 2 with the Department of Education under job code
08120, you are a “public employee” subject to the Ethics Act.
It is clear that as a Fiscal Management Specialist 2 under job code 08120, 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:
Manage the work of staff in the development of grant guidelines to ensure they
meet laws, regulations and standards governing programs and ensure that staff
follow fiscal guidelines to approve and disapprove budgets and expenditures;
Manage the collection, examination, and summarization of fiscal information for
presentation and justification of an agency budget request, legislative hearing
budget package, and rebudget;
Manage the development, monitoring, and interpretation of spending plans and
other projections for the use and availability of funds in compliance with statutes,
policies, or other fiscal controls;
Monitor sources of federal and other non-state revenue against the rebudget plan
and investigate variances from estimates to determine appropriate action;
Tully, 25-528
June 2, 2025
Page 8
Make decisions regarding the development of fiscal guidelines and processes,
allowability of costs, application of federal and state regulations, audit resolutions
and fiscal management policies for federal grants;
Review and approve or recommend adjustments to requests for the use of funds and
prepare and review agency budget requests, legislative budget packages, and
rebudgets;
Prepare and analyze reports that reflect assets, liabilities, reserves, fund balances,
revenue and receipts, appropriations, commitments, expenditures, or other financial
obligations for the purposes of providing recommendations on the use of funds and
maintaining budgetary controls;
Develop, monitor, and interpret spending plans and other projections for the use
and availability of funds in compliance with statutes, policies, or other fiscal
controls;
Monitor, correct, and reconcile records of revenue, financial commitments, and
expenditures for financial and budgetary account closing and lapsing processes;
Review and approve, disapprove, or recommend adjustments to requests for
financial commitments and expenditures;
Assist in the development and implementation of, and ensure compliance with,
fiscal policies and controls related to the financial management of state and federal
funds, grants, entitlements, contracts, or other fiscal-related agreements; and
Supervise or conduct the review, analysis, processing, and adjustment of financial
transactions affecting budgetary, operating, or other accounts,
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 a Fiscal Management Specialist 2 with the Department of
Education under job code 08120, 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.
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 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
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June 2, 2025
Page 9
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