HomeMy WebLinkAbout1415 DrostIn Re: Tracy Drost,
Respondent
File Docket:
X -ref:
Date Decided:
Date Mailed:
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Paul M. Henry
Raquel K. Bergen
Nicholas A. Colafella
05 -049
Order No. 1415
10/4/2006
10/20/2006
This is a final adjudication of the State Ethics Commission.
Procedurally, the Investigative Division of the State Ethics Commission conducted
an investigation regarding a possible violation of the Public Official and Employee Ethics
Act, Act 9 of 1989, P.L. 26, 65 P.S. § 401 et seq., as codified by Act 93 of 1998, Chapter
11, 65 Pa.C.S. § 1101 et seq., by the above -named Respondent. At the commencement of
its investigation, the Investigative Division served upon Respondent written notice of the
specific allegation(s). Upon completion of its investigation, the Investigative Division
issued and served upon Respondent a Findings Report identified as an "Investigative
Complaint." An Answer was filed and a hearing was waived. The record is complete. A
Consent Agreement and Stipulation of Findings were submitted by the parties to the
Commission for consideration. The Stipulation of Findings is quoted as the Findings in
this Order. The Consent Agreement was subsequently approved.
Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter
11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989
and provides for the completion of pending matters under Act 93 of 1998.
This adjudication of the State Ethics Commission is issued under Act 93 of 1998
and will be made available as a public document thirty days after the mailing date noted
above. However, reconsideration may be requested. Any reconsideration request must be
received at this Commission within thirty days of the mailing date and must include a
detailed explanation of the reasons as to why reconsideration should be granted in
conformity with 51 Pa. Code § 21.29(b). A request for reconsideration will not affect the
finality of this adjudication but will defer its public release pending action on the request by
the Commission.
The files in this case will remain confidential in accordance with Chapter 11 of Act
93 of 1998. Any person who violates confidentiality of the Ethics Act is guilty of a
misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than
one year. Confidentiality does not preclude discussing this case with an attorney at law.
Drost, 05 -049
Page 2
I. ALLEGATION:
That Tracy Drost, a public official /public employee, in her capacity as an Income
Maintenance Case Worker for the Department of Public Welfare, Berks County Assistance
Office, violated provisions of the State Ethics Act (Act 93 of 1998) 65 Pa.C.S. §1103(a);
when she used the authority of her office for private pecuniary gain by accessing
confidential information made available through her public position in an attempt to obtain
repayment of a loan.
II. FINDINGS:
1. Tracey Drost has been employed as an Income Maintenance Caseworker for the
Pennsylvania Department of Public Welfare (DPW) at the Berks County Assistance
Office since 1992.
a. Drost has been a Disability Advocate Program worker since
approximately 2002.
b. Drost is supervised by Karen Raszkiewicz and Dianna Lawrence.
2. Job duties and responsibilities are outlined in a job description for Tracy Drost,
employee no. 422692, position no. 160134, job title Income Maintenance
Caseworker, including the following:
Position Purpose: "provide advocacy and supportive services to
Pennsylvania Department of Public Welfare (DPW) clients receiving cash,
food stamps and /or medicaid specifically in applying for supplement security
income (SSI)/ Social Security Disability Benefits from the Federal Social
Security Administration and to ensure that DPW clients are accessing all
federal benefits available."
Description of Duties: "interviews applicants /recipients, gathering relevant
information concerning social, medical and employment history; analyses
eligibility criteria relative to medical /income data; advises /assists
applicant /recipient if additional documentation is needed; provides claimant
with information concerning the SFI /SFA application and appeals process;
organizes, verifies and records relevant client data; assesses claimant's
ability to independently follow directions, assisting claimants with the
application /appeal process, as needed; researches and follows Department
of Public Welfare policy /procedures; identifies special needs of applicants,
authorizing appropriate special allowances and /or making appropriate
referrals; documents all actions in the official agency records; communicates
(verbal and in writing) with community health, social service, educational and
legal resources to assist claimant; prepares and sends appropriate material
to the DPW Medical Review Team (MRT) to establish presumptive eligibility
for federal financial participation; participates in individual conferences, unit
meetings and training sessions to enhance professional skills; performs
other related duties as required such as, assisting with medical
transportation arrangements, including transporting claimants in the state car
to medical exams or other services, as needed; uses automated information
systems, circulates the DPW client's information system (CIS), DPW's
intranet, the internet and Microsoft Outlook and Microsoft Office product to
carryout the duties identified above."
Decision Making: "Interviews claimant regarded as relevant social, medical
and employment information without supervisory review; identifies and
prepares SFI /SFA application materials without supervisory review.
Drost, 05 -049
Page 3
Prepares and submits materials to the MRT without supervisory review.
3. Drost in her official capacity as an employee of the Berks County Assistance Office
has access to confidential information used for benefit eligibility determination.
a. Drost accesses the confidential information through the Income Eligibility
Verification System (IEVS) on her Commonwealth workstation.
4. IEVS is an automated system developed to provide for the exchange of information
between the Pennsylvania Department of Labor and Industry, Office of Employment
Security (OES), the Social Security Administration (SSA), and the Internal Revenue
Service (IRS).
a. Information on the IEVS database is compiled from automated matches with
the state and Federal sources. These matches are referred to as data
exchanges. Each data exchange provides different types of information to
be used in the determination of eligibility and amount of benefits. The
following are the IEVS Data Exchanges:
Wage Exchange, PA Dept. Labor and Industry
Unemployment Compensation, PA Dept. L &I
BENDEX Information, Social Security Administration
Earnings Reference File (ERF) Information obtained from
SSA.
However, this is IRS information and subject to strict
confidentiality guidelines.
Exchange #05 IRS Unearned Income Information, which is also subject to
strict confidentiality guidelines.
Exchange #06 SSI information obtained through SDX exchange with SSA.
Exchange #07 Buy -In process for Medicare.
Exchange #08 Deceased Persons Match.
Exchange #09 Interstate Match.
Exchange #10 Commonwealth Judicial Inquiry System.
b. The IEVS data exchange information may be used only to obtain information
about applicants, recipients, individuals whose income /resources must be
considered to determine eligibility or an amount of the benefit, or LRRs of
the applicant /recipient.
c. Information received through IEVS is subject to safeguards, and its
confidentiality must be protected. Only individuals involved in the
administration of benefits may be authorized access to data exchange
sources through IEVS.
d. Improper, unauthorized use of IEVS to obtain information about individuals
other than applicants, recipients or those whose income /resources must be
considered to determine eligibility or the benefit amount, may result in fine
and /or imprisonment. Laws and regulations that govern release of the
information held by each data exchange source determine the penalties to
be imposed for improper use and /or disclosure.
Exchange #01
Exchange #02
Exchange #03
Exchange #04
5. DPW employees are required to sign terminal operator registration forms in order to
use the IEVS system.
a. Drost was provided an operator code and password to use when accessing
the IEVS system.
Drost, 05 -049
Page 4
1. Drost's operator number was 179502981.
6. Drost reviewed and signed a terminal registration form on June 2, 1993 which
contains confidentiality provisions and restrictions on the use and accessing of
information. Included on the form is the following operator's statement:
a. "I understand that all information contained on the Department of Public
Welfare's database is confidential. I agree not to disclose any information to
persons who have applied for, have received, or who are receiving public
assistance or social services to any unauthorized group or individual. I
understand that I may only use the terminal for those specific functions for
which I have been authorized. I understand that the entering of unauthorized
information may constitute fraud. I understand that the password I receive is
confidential and may not be written down. It is to be used only by myself. If I
suspect that anyone else has knowledge of my password I will report it
immediately to the site security administrator. I understand that whenever I
leave the terminal, I must sign -off. I understand that any violation of this
agreement may result in disciplinary action to include discharge. I have read
this entire statement and agree to abide by it.
7 DPW's Personnel Manual contains provisions restricting the use of confidential
information obtained by employees.
a. Section 7170.1 of DPW's Personnel Manual includes restricted activities
Section C, Part 1, Letter I:
Use nonpublic information gained through employment for personal profit.
Employees are not to engage in the practice of acquiring interests in the
properties of public assistance applicants or recipients. An employee who
contemplates such action shall report these intentions to the supervisor prior
to taking the action and await a Departmental consideration and approval.
This matter shall be referred to the Bureau of Personnel of an analysis of the
transaction and a report on the proposal. The propriety of acquiring an
interest in this property shall be judged from a standpoint of the possible
reflection which may occur to the employee or to the Department through
these actions in view of the nature of the public assistance program and the
dependency position of the recipient or applicant for assistance."
8. Drost in her official capacity as an employee of the DPW Berks County Assistance
Office is subject to terms and conditions of the Governor's Code of Conduct.
a. All Commonwealth employees of the Executive Branch are subject to the
Governor's Code of Conduct.
b. The Governor's Code of Conduct includes the following language on
restricted activities, conflicts of interest, and adverse pecuniary interests.
Part 1 — Restricted Activities; Conflicts of Interests
Item 1 — Adverse pecuniary interest
a. Engage directly or indirectly in any business transactions or private
arrangement for profit which accrues from or is based upon his or her
official position or authority.
b. Participate in the negotiation of or decision to award contracts, the
settlement of any claims or charges in any contracts, the making of
loans, the granting of subsidies, the fixing of rates, or the issuance of
Drost, 05 -049
Page 5
permits, certificates, guarantees or other things of value to, with or for
any entity in which he or she has a financial or personal interest.
9. Personnel policies of the Department of Welfare, the Governor's Code of Conduct
and the Restricted Activities Section (1103) of the State Ethics Act all prohibit
employees from accessing confidential information in the quest for a private
pecuniary gain.
10. Susan Troxel is a relative, through marriage, of Tracey Drost.
a. Troxel is married to Drost's husband's cousin.
11. On August 6, 2004, Tracy Drost gave a loan to Troxel by issuing personal check
number 2910 in the amount of $500.00 to Susan Troxel.
a. The word "loan" is written in the memo portion of the check.
1. Troxel had agreed that she would repay Drost with money that she
would obtain from her mother.
2. No deadline was agreed upon when the loan would be repaid.
b. Troxel babysat for Drost on a daily basis during June and July of 2004.
c. Susan Troxel requested the money from Drost to take Troxel's family on a
vacation trip to the beach.
12. On or about July 22, 2004 Drost contacted the Social Security Administration (SSA)
to schedule an appointment on Troxel's behalf.
a. Drost offered her help due to Troxel suffering from a severe medical
condition.
b. Drost used Troxel's date of birth and Social Security Number to schedule the
appointment.
1. Drost used her position to access this information but Troxel also
provided Drost with her birth date and SSN.
c. An initial meeting for Troxel had to be cancelled and was rescheduled for
September 3, 2004.
d. Drost provided Troxel with applications for Social Security Disability and
Medical Assistance Benefits.
e. Drost assisted Troxel in completing all of the required paperwork, and mailed
it in to the SSA in August of 2004.
f. Troxel had a telephone interview in relation to her application with SSA in
September 2004 and February 2005.
13. Drost also assisted Troxel with an application for energy assistance, submitted to
the DPW county assistance office, in or around July 2004.
a. Troxel's application for energy assistance was denied.
14. During the latter part of 2004 into early 2005, Drost accessed confidential IEVS
Drost, 05 -049
Page 6
records on Troxel's benefit application.
a. In her capacity as a public employee, Drost had access to confidential
information related to Troxel's application.
b. Drost used her commonwealth computer to access the system and track the
application.
c. Drost did not verify whether Troxel was a legitimate applicant/recipient at the
time the inquiries were made. Thus, these inquiries were not made as part
of Drost's official duties with DPW's Berks County Assistance Office.
d. Drost was not Troxel's assigned caseworker.
15. Prior to September 2004, Troxel was considered an inactive assistance member in
the IEVS because she had not received any assistance since March 2000.
a. Troxel had received public assistance benefits in 1994, after the birth of her
son.
16. Queries and information requests into the IEVS are tracked on a monthly basis, and
retained by the Department of Public Welfare.
17. The search for information contained in any of the 10 data exchanges of the IEVS is
known as a query.
a. Inquiries into the IEVS are viewed by entering a Social Security Number into
the system.
18. IEVS consists of four types of inquiries that can be accessed for any and all
exchanges.
a. Status inquiry transactions are used to determine the type of information
available through each data exchange.
b. Detail inquiry transactions provide access to individual detailed screens that
displays specific information received from the searched exchange.
c. History inquiry transactions provide access to individual history screens that
display accumulated information or calendar year for the searched
exchange.
d. Auditor inquiry transactions provide access to individual detail screens that
have been viewed for auditing purposes.
19. Drost accessed IEVS data on Troxel on (56) occasions between October 2004
and February 2005 as follows:
Month # of inquiries
October 2004 9
November 2004 1
December 2004 14
January 2005 25
February 2005 7
20. Drost made inquiries on the IRS unearned income date [sic] exchange (exchange 5)
for Troxel in October 2004 and January 2005.
Drost, 05 -049
Page 7
21. IEVS records confirm Drost making queries into Troxel's SSA Benefit Payment
Status (exchange 3), Earning Reference File (exchange 4), IRS Unearned Income
Information (exchange 5), and SSI Information (exchange 6) on 52 occasions from
August 2004 through February 2005.
Date
Time Information Viewed
10/13/2004 1:48:46 Exchange 6
10/13/2004 1:51:31 Exchange 3 and 4
10/18/2004 2:43:31 Exchange 3 and 4
10/18/2004 2:43:55 Exchange 6
10/26/2004 3:57:08 IEVS Detail Status Inquiry
10/26/2004 3:57:11 Exchange 5
10/26/2004 3:59:16 Exchange 6
10/26/2004 3:59:28 Exchange 3 and 4
11/18/2004 9:55:04 Exchange 6
12/16/2004 4:49:28 Exchange 6
12/16/2004 4:49:41 Exchange 3 and 4
12/16/2004 4:50:08 Exchange 6
12/17/2004 1:23:40 Exchange 6
12/17/2004 1:31:59 Exchange 3 and 4
12/20/2004 10:08:44 Exchange 6
12/20/2004 10:08:54 Exchange 3 and 4
12/21/2004 9:38:01 Exchange 6
12/28/2004 12:19:00 Exchange 6
12/29/2004 1:11:07 IEVS Detail Status Inquiry
12/29/2004 1:11:38 Exchange 6
12/29/2004 1:11:47 Exchange 3 and 4
1/3/2005 9:15:20 Exchange 6
1/5/2005 4:53:20 Exchange 6
1/6/2005 9:31:33 Exchange 6
1/10/2005 11:23:08 Exchange 6
1/11/2005 10:57:11 Exchange 6
1/11/2005 10:58:55 Exchange 3 and 4
1/11/2005 10:58:59 Exchange 3 and 4
1/11/2005 10:59:20 Exchange 5
1/11/2005 11:02:36 Exchange 6
1/12/2005 9:08:32 Exchange 6
1/12/2005 9:26:16 Exchange 3 and 4
1/14/2005 4:28:50 Exchange 6
1/18/2005 10:51:53 Exchange 6
1/18/2005 10:52:12 Exchange 3 and 4
1/19/2005 11:56:33 Exchange 6
1/19/2005 11:56:41 Exchange 3 and 4
1/24/2005 11:18:30 Exchange 6
1/24/2005 11:18:41 Exchange 3 and 4
1/24/2005 11:19:20 Exchange 3 and 4
1/25/2005 4:30:11 Exchange 6
1/25/2005 4:30:25 Exchange 3 and 4
1/28/2005 3:59:54 Exchange 6
1/28/2005 4:00:07 Exchange 3 and 4
Drost, 05 -049
Page 8
1/31/2005 1:25:13 Exchange 6
2/7/2005 11:02:52 Exchange 6
2/7/2005 11:03:24 Exchange 3 and 4
2/7/2005 11:03:32 Exchange 3 and 4
2/9/2005 9:12:42 Exchange 6
2/9/2005 9:12:56 Exchange 3 and 4
2/22/2005 9:31:40 Exchange 6
2/22/2005 9:39:39 Exchange 3 and 4
22. Information requests on IEVS system are requests made to the sources of each
exchange, by an operation, through the IEVS to obtain updated or new information
for each exchange.
a. Requested information becomes available for inquiries usually within two
days from when the request is made.
b. This information is confidential.
23. IEVS records confirm Drost making information requests through the system for
information on Troxel on 10 occasions form January 2002 through February 2005.
Date Data Requested
1/30/2002 SDX, Wage, UC, Bendex
3/5/2002 SDX, Wage, UC, SSA Wage, Bendex, IRS, CJIS
3/26/2002 SDX, Wage, UC, SSA Wage, Bendex, IRS, CJIS
4/30/2002 SDX, Wage, UC, SSA Wage, Bendex, IRS, CJIS
3/11/2003 SDX, Wage, UC, SSA Wage, Bendex, IRS, CJIS
1/21/2004 SDX, Wage, UC, SSA Wage, Bendex, IRS, CJIS
10/13/2004 SDX, Wage, UC, SSA Wage, Bendex, IRS, CJIS
12/16/2004 SDX, Wage, UC, SSA Wage, Bendex, IRS, CJIS
12/22/2004 Wage, UC
1/19/2005 SDX, Wage, UC, SSA Wage, Bendex, IRS, CJIS
24. Drost made information requests regarding Troxel through the IEVS on six
occasions prior to assisting Troxel in applying for assistance.
25. Droxel accessed the confidential information on Troxel's receipt of disability income
during the time period when Troxel owed Drost $500.00.
a. Drost did not access Troxel's confidential information in connection with her
official Commonwealth duties.
26. Early in February 2005 Drost sent the Troxels a five (5) page letters [sic],
purportedly in response to a threatening letter from John Troxel, and alleged Mr.
Troxel committed fraud upon his uncle, Ronald Troxel. Included in that 5 page
letters was a reference to the unpaid $500.00 loan.
a. Included in this letter was a threat of litigation over an unrelated matter if the
loan was not repaid.
Drost, 05 -049
Page 9
b. Excerpts from Drost's letter to Troxel referencing the loan included:
"Sue called me on the phone asking to borrow money because Tabby never
went to the shore. I graciously lent you $500. She said she would pay it
back. She said her mom was in California visiting her son or she would
borrow the money from her mom. This led me to believe she was planning
on paying me back when her mom got back! Now it is 6 months later."
Now let me make myself very clear and cut to the chase. You have 3
choices and they are as follows:
1. I want my $500 back by the end of this month.
2. You will contact Carol to make a payment plan. You will start paying
back the money you stole from Ronald. By the way Carol is on a
payment plan for that $2,000 Dental bill Sue didn't pay, although the
money is gone.
3. If by the end of the month you have not abided by the stated [sic] we
are prepared to press charges and will see you in court. We have
already met with a lawyer and he is ready to move with this case."
27. Drost continued to access the IEVS data base for information on Troxel during
February 2005, after sending her the letter.
a. A total of seven (7) inquiries were made during February 2005 (see finding
#20).
28. Drost continued to access the Troxel's data through IEVS system at about the time
Troxel was to receive a SSI payment.
29. Troxel's retroactive disability payment was processed and a check was issued on
February 18, 2005.
a. Drost accessed Troxel's benefit payment status and Social Security
information twice on February 22, 2005.
b. Drost would be able to view Troxel's payment amount through SSA Benefit
Payment Status (Exchange 3) in the IEVS after February 18, 2005.
30. Drost sent the Troxels a second repayment demand letter, which they received on
February 24, 2005. This letter read as follows:
"John, This is the 2 letter we sent you. The 1 was mailed 2.5 weeks ago.
You should have received the lump sum of $(crossed out) from S Security.
Do the right thing and pay your $500.00 loan. Returned check enclosed.
You have less than a week. I don't think you really want the police at your
door. Please do the right thing or we will have no choice but to do the right
thing. You cannot talk your way out of this as we have the proof. I will
continue to send the letter until I get confirmation [that] you read this letter;
John everyone in the extended family is behind Ronald on this."
a. The crossed out dollar amount was identical to the amount of the SSA check
issued to Troxel.
b. Drost would not have known of the payment or the amount without accessing
the confidential information.
Drost, 05 -049
Page 10
31. Troxel received an award letter from Social Security on February 26, 2005.
a. The award letter indicated Troxel would receive a lump sum payment of
$3,231.44.
32. Troxel received the award letter from SSA two (2) days after she received a second
letter from Drost.
a. The second letter makes reference to the lump sum payment Troxel was to
receive.
b. Drost became aware of the award through her inquiries on the IEVS
Database. In addition, John Trosel [sic] informed Ed Drost, Drost's husband,
that they (Troxels) received a lump sum SSI award letter.
33. Troxel complained to the Social Security Administration and the Office of Inspector
General about Drost's conduct since Troxel's case and award was not a public
matter.
34. Troxel made monthly loan payments of $10 to Drost from March 2005 through
September 2005, totaling $70.
a. Troxel sent Drost the first payment on March 24, 2005, within a month of
receiving the second letter from Drost.
b. $10 payments were made in the form of money orders mailed to Drost by
Troxel.
c. To date, Drost has not received any additional money from Troxel.
35. On September 7, 2005, Patricia D. Cassidy, Field Human Resource Officer I, sent
Tracy A. Drost a letter indicating that an investigation was being conducted
regarding allegations concerning her conduct as an employee of the Berks County
Assistance Office.
a. The letter stated as follows, "violation of Department of Public Welfare
(DPW), manual section 7174; failure to follow general instructions or
procedure facts scenario outlined is as follows:
1. Specially on numerous occasions beginning as early as March 5,
2002, you repeatedly violated established procedures by
inappropriately accessing confidential, restricted information through
the Income Eligibility Verification System (IEVS) for non work related
reasons.
2. According to department records on twenty -six separate occasions
between October 14, 2004, and February 22, 2005, you accessed
restricted social security information of a person who was not a client
of your department.
3. Furthermore, department records indicate that you illegally accessed
Internal Revenue Service information on same individual.
4. Your conduct is expressly prohibited by the terms of the terminal
security system terminal operator registration forms you signed on
June 2, 1993, and June 3, 2003.
Drost, 05 -049
Page 11
5. In addition, you repeatedly ignored system generated warnings that
your actions might subject you to civil and /or criminal penalties.
6. The IEVS system displays the following warning notice each time the
system is initiated: This system contains sensitive goy. info. Any
unauthorized inspection or disclosure of this info. may subject the
violator to civil and /or criminal penalties. This can include fines up to
$5,000 and imprisonment up to five years."
7 Despite the aforementioned warning you accessed, without authority
restricted information regarding your relative, and is not a public
assistance recipient. By your own admission you were aware that
you are not authorized to access the IEVS system for non work
related reasons.
b. Violations of the Governor's Code of Conduct executive order 1980 -18
amended subsection (a) misuse of information specifically on numerous
occasion as described above, you used your position as an Income
Maintenance Caseworker to access confidential restricted information
through the Income Eligibility Verification System.
1. The information accessed is not available to the general public, was
not work related and pertaining to a person who is not receiving
public assistance.
2. You used the information in an attempt to gain repayment for a loan
you made this person of record in the amount of $500.
3. The Governor's Code of Conduct, part II, 3, prohibits public
employees from using for their personal interest or benefit any
information obtained as a result of Commonwealth employment, if
such information is not available to use in the general public.
c. Misuse of Commonwealth facilities and equipment: specifically, you used
Commonwealth equipment, supplies and property to access confidential,
restricted information as described above, for non -work related reasons in
attempts to gain repayment of a $500 loan.
1. The Governor's Code of Conduct, part II, 4, prohibits public
employees from using Commonwealth facilities, property, equipment,
supplies or services for the personal interest or benefit, or for other
officially designated or approved purposes."
d. Pre - disciplinary conference was scheduled for September 12, 2005.
36. Also on September 7, 2005, Drost was provided with correspondence from her
immediate supervisor Gary Rightmire, indicating that she was being suspended
without pay from her position as an Income Maintenance Caseworker with the Berks
County Assistance Office effective August 31, 2005, at 3:00 p.m. for a period not to
exceed sixty working days.
a. The reason for the suspension is listed as the failure to follow general
instructions or procedures and violation of the Governor's Code of Conduct
Executive Order 1989 -18, Amended: Misuse of information, misuse of
Commonwealth facilities and equipment.
Drost, 05 -049
Page 12
37. A pre - disciplinary conference was held with Drost on September 9, 2005.
a. Patricia D. Cassidy, Field Human Resource Officer for Berks County
Assistance Office, participated in the PDC to the extent that she took notes
and reduced those notes to writing which were typed on September 9, 2005.
b. Cassidy's notes included, in part, the following information: Present was
Diane Black, Income Maintenance Administrator I, Union Representatives
Denise Weiss, and Theresa Scianna - Gonder, and Tracy Drost. Mrs. Black
explained the pre - disciplinary process and afforded Drost the opportunity to
respond to the charges. "Drost stated that the situation was more in depth
than what was written. This is a family member who on several occasions
asked for her assistance. In 2002 she applied for social security and I
helped her. She is my child's sitter. Twenty -six occasions? I completed 08
or 009 - helpless social security form two or three nights at her home for
social security and medical here. I took her social security application, she
wanted to wait on medical. The woman had breast cancer and was shocked
that I went above and out of my way - to see that she was
applicant /recipient. I never checked to see. I would check to see if a
decision was made on her application. In the system - "right across the
IVUS [sic]- don't recognize one in message. I called Social Security once in
November to ask what the holdup was on her application - she didn't get all
the information (pay stubs). She authorized me by giving me information to
check. I never disclosed to anyone but her. My mistake. I used it because I
thought I was helping her I didn't say to her you got Social Security I want my
money. My husband found out she got an award letter. I thought it was work
related, that she was a client. I knew she was before. I don't know how to
clear. Don't file clear on any of my clients. She called me about application
and I just went in.
c. Diane Black asked if Ms. Drost if she was aware of IVES [sic] restrictions.
Ms. Drost replied that she was and that her interpretation was getting
information from another source and couldn't disclose outside of here. Ms.
Drost stated that she didn't see social security as an outside because she is
a DAP worker.
d. Diane Black asked Ms. Drost if she used (a) her application or all employee
recipient at the bottom of the screen and Ms. Drost stated IRS - don't even
look at that screen. Diane Black told Ms. Drost that the OPS memo
regarding safeguarding information was reviewed at a PAMS meeting that
she attended on exchanges 4 and 5 and that Ms. Drost had requested
exchanges 4 and 5.
e. Diane Black asked Ms. Drost if she requested information for Susan Troxel.
Ms. Drost replied that she did. Diane Black asked Ms. Drost what
exchanges she reviewed. Drost replied 3 and 6 for sure 3 and 6. Diane
Black said you made the exchange 1 also. Ms. Drost replied yes.
f. Diane Black asked Ms. Drost what the intent was to help her get her to social
security? Ms. Drost replied yes that was the intent. After she told my
husband she got the lump sum - out of anger more than anything, because
of the family fraud case. Didn't really care about the $500.
38. In connection with her pre - disciplinary conference, Drost submitted a two page
handwritten statement indicating that the information was being provided freely and
without coercion. This statement was signed by Drost on September 9, 2005.
Drost, 05 -049
Page 13
a. Drost provided the following information as part of her pre - disciplinary
conference. "I Tracy Drost, Disability Advocate, did make every attempt to
assist Sue Troxel with application for SSI /SSDI and medical assistance. I
did access files with her acknowledgment. I continued to confirm that her
SSI /SSDI had not been decided at her request. I was hopeful I would be
able to give her a positive outcome on the decision. I thought she
authorized the inspection of files and I did not disclose information to any
party other than she and her husband. John Troxel told my husband on one
occasion that Sue received a letter that she will be getting SSI or SSDI. I
never looked to files to get a lump sum amount so that a $500 debt /loan
would be paid. I did use the state computer to assist to Troxel and keep her
updated on her exchange 3 and 6.
39. On September 12, 2005, Drost was notified by letter signed by Gary Rightmire that
she was suspended without pay for a period of (10) working days effective
September 1, 2005 through September 14, 2005.
a. The reasons for the suspension, as outlined in Rightmire's letter are as
follows:
"Violation of Department of Public Welfare (DPW) Manual Section 7174;
Failure to Follow General Instructions or Procedures
Specifically, on numerous occasions beginning as early as March 5, 2002,
you repeatedly violated established procedures by inappropriately accessing
confidential, restricted information through the Income Eligibility Verification
System (IEVS) for non -work related reasons. According to Department
records, on 26 separate occasions between October 14, 2004 and February
22, 2005, you accessed the restricted social security information of a person
who was not a client of the Department. Furthermore, Department records
indicate that you illegally accessed Internal Revenue Service information on
the same individual. Your conduct is expressly prohibited by the terms of the
Terminal Security System Terminal Operator Registration Forms you singed
[sic] on June 2, 1993. In addition, you repeatedly ignored system - generated
warnings that your actions might subject you to civil and /or criminal
penalties. The IEVS system displays the following warning notice each time
you access is initiated, THIS SYSTEM CONTAINS SENSITIVE GOV. INFO.
ANY UNAUTHORIZED INSPECTION OR DISCLOSURE OF THIS INFO.
MAY SUBJECT THE VIOLATOR TO CIVIL AND /OR CRIMINAL PENALTIES
WHICH CAN INCLUDE FINES UP TO $5,000 & IMPRISONMENT UP TO 5
YEARS." Despite the aforementioned warnings you accessed, without
authority, restricted information regarding your relative, who was not a public
assistance recipient. By your own admission, you were aware that you are
not authorized to access the IEVS System for non -work related reasons.
2. Violation of the Governor's Code of Conduct (Executive Order 1980-
18, Amended:
a. Misuse of Information: Specifically, on numerous occasions as
described above, you used your position as an Income
Maintenance Caseworker to access confidential, restricted
information through the Income Eligibility Verification System.
The information you accessed was not available to the general
public, was not work related, and pertained to a person who
was not receiving public assistance. You used the information
in an attempt to gain repayment for a loan you made to the
person of record in the amount of $500. The governor's Code
Drost, 05 -049
Page 14
of conduct, Part 11, 3, prohibits public employees from using,
for their personal interests or benefit, any information obtained
as a result of Commonwealth employment, if such information
is not available to the general public.
b. Misuse of Commonwealth facilities and equipment:
Specifically, you used Commonwealth equipment, supplies
and properties to access the confidential, restricted information
as described above, for non -work related reasons in attempts
to gain the repayment of a $500 loan. The Governor's code of
Conduct, Part 11, 4, prohibits public employees from using
Commonwealth facilities, property, equipment, supplies or
services for their personal interest or benefit, or for other than
officially designated or approved purposes.
A predisciplinary conference was held with you on September 9, 2005
and the response you provided was not acceptable.
It is distinctly understood that this level of discipline is being mitigated
based on your thirteen years of commendable service with no prior
discipline.
This is a final warning. Repeated offenses of the same or similar
nature that occur at any point after the date of your receipt of this letter will
result in your discharge."
40. Drosts's suspension resulted in a loss of wages totaling $1,567.80.
41. Drost utilized confidential information obtained through her public position with the
Berks County Assistance Office at a time when she was attempting to collect on a
$500.00 loan made to Susan Troxel, in addition to investigating a family dispute
involving Mr. Troxel.
a. Drost accessed confidential information through her Commonwealth
computer during normal business hours on 56 occasions since paying
Troxel.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, Tracy Drost (Drost), has been a
public employee subject to the provisions of the Public Official and Employee Ethics Law,
Act 9 of 1989, Pamphlet Law 26, 65 P.S. § 401 et seq., as codified by the Public Official
and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq., which
Acts are referred to herein as the "Ethics Act."
The allegations are that Drost, as a DPW Income Maintenance Caseworker in the
Berks County Assistance Office, violated Section 1103(a) of the Ethics Act when she used
the authority of her office for a private pecuniary gain by accessing confidential information
through her public position in an attempt to obtain the repayment of a personal loan.
Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is
prohibited from engaging in conduct that constitutes a conflict of interest.
The term "conflict of interest" is defined under Act 9 of 1989/Act 93 of 1998 as
follows:
Section 1102. Definitions
Drost, 05 -049
Page 15
"Conflict" or "conflict of interest." Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate family
or a business with which he or a member of his immediate
family is associated. "Conflict" or "conflict of interest" does not
include an action having a de minimis economic impact or
which affects to the same degree a class consisting of the
general public or a subclass consisting of an industry,
occupation or other group which includes the public official or
public employee, a member of his immediate family or a
business with which he or a member of his immediate family is
associated.
65 Pa. C. S. § 1102.
Section 1103(a) of the Ethics Act prohibits a public official /public employee from
using the authority of public office /employment or confidential information received by
holding such a public position for the private pecuniary benefit of the public official /public
employee himself, any member of his immediate family, or a business with which he or a
member of his immediate family is associated.
As noted above, the parties have submitted a Consent Agreement and Stipulation of
Findings. The parties' Stipulated Findings are reproduced above as the Findings of this
Commission. We shall now summarize the relevant facts as contained therein.
Drost has been employed at DPW's Berks County Office as an Income Maintenance
Caseworker since 1992 and as a Disability Advocate Program Worker since 2002. Drost's
function is to provide support services for DPW clients who receive cash, food stamps,
Medicaid, Social Security, or disability benefits and to ensure that the clients have access
to Federal benefits. The details of Drost's duties are delineated in her job description as
stated in Fact Finding 2. As an adjunct to her position, Drost has access to confidential
information through the Income Eligibility Verification System (IEVS) to aid in
determinations of benefits eligibility.
The IEVS is an automated system that allows DPW to exchange information with
the Pennsylvania Department of Labor & Industry, Office of Employment Security (OES);
the Social Security Administration (SSA); and the Internal Revenue Service (IRS). There
are other IEVS exchanges as delineated in Fact Finding 4. The IEVS data exchange is for
the purpose of obtaining information about applicants and recipients. Since confidentiality
must be protected, IEVS is subject to safeguards, one of which is a limitation of access to
only individuals involved in the administration of benefits. Any improper or unauthorized
use of IEVS is subject to penalties that may result in fine or imprisonment.
Drost, like all other DPW employees who would use the IEVS system, had to sign a
terminal operation registration form. Both the IEVS terminal registration form and DPW's
personnel manual contain provisions regarding confidentiality and restrictions as to the
use and access of information. See, Fact Findings 6, 7. Further, Drost is subject to the
Governor's Code of Conduct that sets forth restrictions as to conflicts of interest and
adverse pecuniary interests. See, Fact Finding 8. DPW policies, the Governor's Code of
Conduct and the Ethics Act prohibit public employees from accessing confidential
information for private pecuniary gain.
In a private capacity, Drost in August of 2004 gave a loan in the amount of $500 to
Susan Troxel (Troxel), who is Drost's husband's cousin. In issuing a check to Troxel,
Drost, 05 -049
Page 16
Drost wrote the word "loan" in the memo portion of the check but set no deadline for
repayment.
Around the time that Drost made the loan to Troxel, Drost also contacted the SSA
on Troxel's behalf to schedule an appointment for Troxel who was suffering from a severe
medical condition. Drost provided Troxel with the applications and assisted in completing
all of the required paperwork. In addition, Drost assisted Troxel in her application for
energy assistance that was submitted to the DPW county office.
Some time in late 2004 into early 2005, Drost accessed confidential IEVS records
as to Troxel's benefit application. Drost used the DPW computer to access the system and
track Troxel's application. In that Drost was not Troxel's assigned caseworker, the
inquiries were not made as part of Drost's official duties with DPW. Troxel was considered
an inactive assistance member in that she had not received assistance since March of
2002.
Whenever anyone searches for information in any of the 10 data exchanges of the
IEVS system, the action is known as a query. All queries are tracked on a monthly basis
and are retained by DPW. There are four types of inquiries as to IEVS: status inquires that
determine the types of available information, detail inquiries that access individual detailed
screens displaying specific information resulting from a search, history inquiries that
provide individual history screens for accumulated information as per the search, and an
auditor inquiry that provides access to individual detailed screens for auditing purposes.
From October 2004 to February 2005, Drost accessed the IEVS data as to Troxel
on 56 occasions. The months and number of the inquiries are delineated in Fact Finding
19. Drost made inquiries relative to Troxel as follows: the IRS income database in October
of 2004 and January 2005; Troxel's SSA benefit payment status, earning reference file, the
IRS unearned income information and SSI information from August 2004 through February
2005; requests for information on Troxel between January 2005 through February 2005;
information requests prior to assisting Troxel in applying for assistance; confidential
information on Troxel's receipt of disability income; database information on Troxel during
February 2005; Troxel's data at about the time she would receive an SSI payment; and
Troxel's benefit payment status and SSA information in February of 2005. See, Fact
Findings 20 -25, 27 -29.
In the above time frame, Drost on several occasions contacted Troxel about the
repayment of the $500 loan. Drost sent Troxel a five page letter in February of 2005
threatening litigation if the loan were not repaid. Later in that month, Drost sent Troxel a
second demand letter, advising in part that if the loan were not repaid in less than a week,
the police would be at Troxel's door. In that letter, Drost wrote that Troxel received a lump
sum payment from Social Security, stated the amount of the sum and then crossed it out.
That crossed out dollar amount was identical to the amount of the SSA check issued to
Troxel. Drost could not have known the amount of the payment unless she accessed
confidential information. Troxel did in fact receive an award letter from Social Security on
February 26, 2005 reflecting a lump sum payment of $3,231.44. Troxel received that letter
two days after she received the second letter from Drost.
Troxel complained to the SSA and Office of Inspector General about Drost's
conduct since Troxel's case and award were not matters of public record. Subsequently,
Troxel began making loan payments in the amount of $10 to Drost. After Troxel only
repaid $70, she made no further payments to Drost.
By letter of September 7, 2005, Drost was sent a letter advising that she was under
investigation for violations of DPW instructions /procedures for inappropriately accessing
confidential /restricted information through IEVS for non -work related reasons; for violations
of the Governor's Code of Conduct regarding misuse of non - public information in an
Drost, 05 -049
Page 17
attempt to obtain the repayment of a personal loan; and for misuse of Commonwealth
facilities and equipment to access confidential /restricted information for non -work related
reasons in an attempt to obtain the repayment of a $500 loan.
By letter of September 7, 2005, Drost's supervisor advised Drost that she was
suspended without pay from her position for a period not to exceed 60 working days due to
her failure to follow general instructions /procedures of DPW and the Governor's Code of
Conduct.
A pre - disciplinary conference was held for Drost on September 9, 2005, the details
of which are delineated in Fact Findings 37 and 38. On September 12, 2005, Drost was
notified that she was suspended without pay for a period of 10 working days resulting from
her violations of DPW instructions /procedures and the Governor's Code of Conduct. The
suspension of Drost resulted in her loss of wages totaling $1,567.80.
Having highlighted the Stipulated Findings and issues before us, we shall now apply
the Ethics Act to determine the proper disposition of this case.
The parties' Consent Agreement sets forth a proposed resolution of the allegations
as follows:
"3. The Investigative Division will recommend the following in relation to
the above allegations:
a. That a violation of Section 1103(a) of the Public Official
and Employee Ethics Law, 65 Pa.C.S. §1103(a)
occurred when Drost accessed confidential information
made available through her public position when she
attempted to obtain repayment of a loan."
Consent Agreement, ¶3.
In applying Section 1103(a) of the Ethics Act to the sole allegation before us, the
record reflects multiple instances on the part of Drost when she used the authority of office
to access confidential information for a private pecuniary benefit for herself. In particular,
Drost, in her DPW position had access to privileged and confidential information through
the IEVS automated system for information exchange. Such information was not available
to the general public. Drost was limited to accessing the system for purposes of assisting
clients or applicants as to matters involving eligibility and receipt of benefits.
Drost accessed information as to Troxel for personal reasons, namely, to acquire
information to aid her (Drost) in attempting to obtain repayment of a personal loan that she
made to Troxel. The record reflects 56 separate instances when Drost utilized the IEVS
system for purposes that were not job related. Such actions were uses of authority of
office in accessing confidential information. See, Juliante, Order 809. The multiple uses
of authority of office to obtain confidential information by Drost resulted in a private
pecuniary benefit consisting of the payments that Troxel made to Drost for the repayment
of the personal loan. The installment payments that Drost received constituted a private
pecuniary benefit because there is no authorization in law for Drost to take such action as
a means of facilitating the repayment of the loan. In fact, there were prohibitions on Drost
from accessing the IEVS system for such personal purposes as per the processes of DPW,
the Governor's Code of Conduct and the Ethics Act. Lastly, that private pecuniary benefit
inured to Drost herself.
Accordingly, Drost, as an Income Maintenance Caseworker in DPW, violated
Section 1103(a) of the Ethics Act when she used the authority of office for a private
Drost, 05 -049
Page 18
pecuniary benefit in accessing confidential information through her position in an attempt
to obtain the repayment of a personal loan.
The above decision is consonant with a plethora of prior precedent of this
Commission that a public official /public employee may not use the authority of office or
employment or confidential information to obtain a private pecuniary benefit for himself, an
immediate family member or a business with which the public official /public employee or an
immediate family member is associated. See, Metrick, Order 1037; Gallen, Order 1198;
Herron, Order 1399.
We determine that the Consent Agreement submitted by the parties sets forth the
proper disposition for this case, based upon our review as reflected in the above analysis
and the totality of the facts and circumstances. Given the period of suspension without
pay imposed by DPW, no further action will be taken in this case.
IV. CONCLUSIONS OF LAW:
1. Tracy Drost, as an Income Maintenance Caseworker for the Department of Public
Welfare, is a public employee subject to the provisions of Act 9 of 1989 as codified
by Act 93 of 1998.
2. Drost violated Section 1103(a) of the Ethics Act when she used the authority of
office for a private pecuniary benefit in accessing confidential information through
her position in an attempt to obtain the repayment of a personal loan.
In Re: Tracy Drost,
Respondent
ORDER NO. 1415
1 Tracy Drost, as an Income Maintenance Caseworker for the Department of Public
Welfare, violated Section 1103(a) of the Ethics Act when she used the authority of
office for a private pecuniary benefit in accessing confidential information through
her position in an attempt to obtain the repayment of a personal loan.
2. No further action will be taken in this case, which is closed.
File Docket: 05 -049
Date Decided: 10/4/2006
Date Mailed: 10/20/2006
BY THE COMMISSION,
Louis W. Fryman, Chair