HomeMy WebLinkAbout1414 KinzerIn Re: Janice Kinzer,
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 -053
Order No. 1414
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Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter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.
Kinzer, 05 -053
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I. ALLEGATION:
That Janice Kinzer, a public official /public employee, in her capacity as Archivist for
the Historical and Museum Commission (HMC) violated provisions of the State Ethics Act
(Act 93 of 1998) 65 Pa.C.S. § §1103(a), 1104(a) when she used the authority of her public
position to obtain a private pecuniary benefit for a member of her immediate family and /or
a business with which a member of her immediate family is associated by participating in
the process at the HMC to draft specifications for Requests for Proposals resulting in
contracts being awarded to IMR, a company which employs her husband as a vice -
president; when she monitored related contracts and approved payments to IMR; and
when she failed to file Statements of Financial Interests for the 2000, 2001, 2002, 2003,
and 2004 calendar years.
II. FINDINGS:
1. Janice Kinzer has been employed by the Pennsylvania Historical and Museum
Commission Bureau of Archives and History (BAH) since September 22, 1983.
2. Kinzer has held the position of Archivist II with the Division of Archival and Records
Management Services (DARMS), Local Government and Judicial Records Section,
since 1994.
a. Kinzer reports directly to DARMS Section Head Susan Hartman.
3. The Pennsylvania Historical and Museum Commission was created by Act No. 446,
approved June 6, 1945, amending the Administrative Code to consolidate the
functions of the Pennsylvania Historical Commission, the State Museum, and The
State Archives.
4. The Pennsylvania State Archives is the major repository for official historical
records of state government and other manuscripts and materials.
5. Per Kinzer's position description, she is involved with at least two programs,
including: the Security Microfilm Program; and the Security Microfilm Storage
Program.
a. Kinzer is stationed at the office of the Bureau of Archives and History, 350
North Street, Harrisburg, PA.
b. Kinzer is not responsible for the microfilm program at the State Records
Center, Stanley Drive, Harrisburg, PA.
6. Kinzer's Position Description for an Archivist II, form STD -370, details the following
responsibilities (in part):
a. Provides archival /records management advice directly to local government
officials.
b. Responsible for developing and delivering training sessions designed to
enable local government to meet archival standards relevant to the use of
advanced electronic recording media. Represents the PHMC on technical
committees that affect archival policy and contributes to the development of
appropriate standards.
c. Manages the operation of the Local Government Security Microfilm Storage
Program. This involves working with local governments to determine
admission to the program, coordinating the transfer of security microfilm,
Kinzer, 05 -053
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promoting the program, appraising records potential for use in archives
reading room, responding to retrieval requests and overseeing the program
budget; coordinates the Security Microfilm Program, promoting the Program,
overseeing the microfilming of township and borough minute books and
maintaining loan forms and related paperwork.
d. Serves as the work leader for the State Archives Micrographics Lab by
coordinating microfilming projects, including preparing targets, overseeing
quality inspection procedures, ordering supplies, arranging for equipment
maintenance and insuring microfilm relocation for use in the archives
research room.
e. Provides assistance in all phases of divisions work as required. Duties may
involve serving as work leader for other staff or interns.
f. The following details are noted under the decision making section of the
position description:
1. Prioritizes microfilming projects.
2. Oversees contractors and prioritizes their work.
3. Makes decisions on which vendors to use and what supplies are
needed to maintain microfilm production.
4. Makes all decisions on what is necessary for repair or replacement of
camera equipment.
5. Handles contracts involving microfilm programs and microfilm
storage.
6. Prepares initial paperwork on contracts for approval of bureau office.
7 The Position Description for an Archivist 11, as revised on 9/1/94, provides
additional detail as to Kinzer's responsibilities.
a. Definition: An employee in this class performs archival work to assure the
preservation, availability, dissemination, and interest in historically accurate
information. Work involves selecting, arranging, and preserving public
records. Duties include making recommendations relating to the collection
and disposition of public records. Duties may include the supervision and
training of lower -level technical and clerical employees. Although
employees work with considerable independence on individual assignments,
work is reviewed in progress and upon completion for compliance with
established procedures and attainment of objectives.
b. Examples of work:
1. Selects, arranges, and preserves public records.
2. Searches archives, prepares finding guides, and arranges public
records and manuscripts.
3. Participates in conducting systematic surveys of agency records, and
provides advice to representatives of agencies and other groups in
the maintenance and disposition of records of a historical and
research value.
Kinzer, 05 -053
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4. Prepares written descriptive data pertaining to archival records or
manuscripts.
5. Supervises the fumigation, preservation and repair of archival
materials.
6. Supervises the maintenance of archives and manuscripts, searches
for data, and controls the storing and retrieval of records.
7. Examines and estimates the historical value of public and private
documents.
8. Performs related work as required.
8. Kinzer's job description /position statement requires her to participate in an
official capacity, to some extent, in regards to the following programs:
a. Security Microfilm Program:
1. Filming is done at the Archives lab in the State Museum and Archives
Building in Harrisburg.
2. The Archives Search Room is the responsibility of the Division of
Archives and Manuscripts.
b. Security Microfilm Storage Program:
1. A service offered to county, municipal, and school district officers to
assist them with the storage of silver halide security microfilm copies
of their most vital records.
2. The primary goal of the program is to provide safe cost - efficient
storage at no annual cost to the local taxpayer.
3. As part of the program and in accordance with standards, a
representative sampling of all film deposited at the State Archives'
records center is inspected biennially to detect any serious
deterioration.
c. Electronic Records:
1. Electronic records are managed to control their creation, distribution,
maintenance, use, and disposition.
2. Records in electronic format are retained in accordance with records
retention and disposition schedules, policies and guidelines
promulgated by the County and Local Government Records
Committees.
9. Janice Kinzer has been married to James E. Kinzer since 1985.
10. James Kinzer is employed by IMR Limited as the Vice President of County
Government Sales, and as a Sales Representative.
a. James Kinzer works out of the Harrisburg Corporate Office, located at 300
Corporate Center Drive, Suite 600, Camp Hill, PA 17011.
Kinzer, 05 -053
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b. James Kinzer does not own a financial interest in the company.
c. James Kinzer's compensation consists of salary, plus commissions based on
his sales.
1. James Kinzer's commission is based on the company's margin of
profit on county sales only, and does not include sales to PMHC or
any other state agency.
11. IMR Limited provides document and data management systems; hardware and
software solutions that capture, store, retrieve, and distribute, documents and data;
and provides document management services including microfilm and archival
services.
a. IMR has been in business for twenty -five years.
b. IMR maintains offices in Pittsburgh, Hazelton, and Philadelphia,
Pennsylvania.
c. IMR also trades as IMR Digital Solutions.
12. IMR has contracted with the Historical and Museum Commission to provide services
related to document preservation for at least the past fifteen years.
13. During the time period July 1, 2001 through December 31, 2005, the BAH Division
of Archives and Manuscripts (DAMS) and DARMS have entered into approximately
five contracts with IMR Limited.
a. Three of the contracts were for micrographics supplies.
b. Two of the contracts were for micrographics services.
14. Micrographics supplies were purchased from IMR using the Department of General
Services Statewide Requirements Contract #6760 -02.
a. Kinzer had no input in regard to the micrographics vendors chosen to
participate in the contract.
b. IMR Limited is a Commonwealth approved vendor for micrographics
supplies.
1. All vendors are chosen and approved by Department of General
Services for inclusion on a statewide contract.
c. The Statewide Contract consists of a list of pre - selected vendors that
agencies are required to use to order supplies.
15. As part of her responsibility for the DARMS Lab, Kinzer initiates paperwork and
decides what supplies and equipment are needed to be ordered. Kinzer does not
have final approval of these purchases.
16. Kinzer typically works with 35mm microfilm which is designed for archival use
because of its higher resolution and higher silver content.
a. 35mm microfilm is effective when used to record documents of unusual size,
and /or in poor condition.
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17. Kodak 35mm microfilm was used to coordinate with the Kodak equipment, 2 Kodak
MRD Planetary Cameras, and for quality purposes.
a. During the relevant time of the investigation of this matter, IMR was the only
identified authorized dealer on the state contract for Kodak microfilm.
b. Kodak film is the standard in the industry.
18. Kinzer was responsible for contacting vendors on State Contract, including IMR, for
pricing information for supplies for the DARMS lab.
a. Kinzer did not initiate supply orders without Teresa Clouser's authorization.
b. Kinzer relayed the supply orders and pricing information to BAH Secretary
Teresa Clouser, who was responsible for determining if funding was
available, and how the supplies would be purchased.
c. Teresa Clouser would process supply orders according to the state
purchasing procedures.
19. Invoices for the supply orders are submitted through the Commonwealth SAP
system and then sent directly to the Comptroller for payment.
a. SAP is a computer system utilized by Commonwealth agencies for bills
payable, among other functions.
b. The Comptroller is authorized to issue payment when the invoice has been
entered into the SAP system, in this case, invoices were entered by Teresa
Clouser.
20. Kodak film was purchased on at least two occasions from IMR during the time
period 7/1/01 — 12/31/05.
a. Kodak film was exclusively distributed by IMR.
1. During the relevant time of the investigation, IMR was the only vendor
identified on the state contract who distributed Kodak film.
b. Kinzer played a role in both purchases identifying the brand of film and
determining the quantity to be purchased.
1. Kinzer identified Kodak film because of the types of equipment used
by DARMS, because it is industry standard and because the material
is oversized.
21. Kinzer had advised Teresa Clouser on or about October 17, 2003, that she had
called Joshua Skinner at IMR to price the microfilm the DARMS lab needed for the
2004 year.
22. A purchase order was issued through the SAP system to purchase the Kodak film
from IMR.
a. Purchase Order #4500090211, dated 11/06/03, identifies the purchase of
280 rolls of 35mm (x100ft) microfilm at $17.26 each, for a total of $4,832.80.
23. Based on the quote Kinzer obtained from IMR, a purchase order was entered into
Kinzer, 05 -053
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the SAP system to make the purchase from IMR.
a. The order was approved by Bureau Director Frank Suran.
24. A second order of Kodak film was obtained from IMR in March 2005.
a. Kinzer contacted Joshua Skinner of IMR in February 2005 seeking a quote.
25. An Agency Purchase Request was prepared on February 18, 2005 by Teresa
Clouser to make the purchase of 400 rolls of Kodak film.
26. Purchase Order #4500207319, dated 03/08/05 prepared by Clouser authorized the
purchase of 35mm Kodak microfilm at $18.32 per roll, for a total of $7,328.00.
27. Kinzer determined the quantity of film to be purchased, initiated a request for a
price quote from IMR for the rolls of 35mm Kodak film, and provided that information
to Teresa Clouser for ordering.
a. Kinzer determined quantity by projecting the needs of the lab while factoring
in the shelf life of the film, and the rate of work completed by camera
operators.
b. Kinzer did not approve the purchase order.
c. A purchase order was prepared based on the information provided by
Kinzer.
28. The DARMS lab has also purchased microfilm boxes from IMR as well as other
vendors, during Kinzer's employment with DARMS.
29. In or about October 2005, Kinzer requested pricing information and product
availability of the 16mm microfilm boxes from IMR by email.
a. Kinzer inquired if IMR was still selling 16mm acid free - archival boxes
manufactured by Century.
b. IMR responded with the per box price, noting that there were 250 boxes in a
case, and that the price included shipping.
30. Kinzer contacted Teresa Clouser questioning how she should purchase the 16mm
boxes.
a. Clouser verified that the 16mm boxes were on contract and required an APR,
which she offered to prepare and send through.
b. Kinzer responded to Clouser on 10/21/05, that she needed to purchase
1,000 — 16mm Century Boxes at $0.40 each.
31. An Agency Purchase Request was prepared on October 21, 2005.
a. The APR identifies Kinzer as the DARMS contact person, and reflects
approvals by Kinzer, Bureau Director David Henry, and Teresa Clouser.
32. On October 31, 2005 Purchase Order #4500273071, for the purchase of 1,000,
16mm microfilm boxes, at $0.40 each, for a total of $400.00 was submitted through
the SAP system.
Kinzer, 05 -053
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a. Kinzer is identified as the contact on the Purchase Order, which indicates
that it was initiated by DARMS.
33. The purchase of the microfilm boxes from IMR was initiated by Kinzer, who obtained
the price and submitted the APR.
34. Kinzer participated in the purchase of micrographic supplies including Kodak 35mm
film and storage boxes from IMR Limited during the time period 7/01/01 to 12/31/05,
which totaled $12,560.80.
a. Kinzer obtained pricing from IMR for film and provided pricing to Clouser so
that purchases could be made.
35. Kinzer did not have the authority to give final approval for these, or any other
purchases of Micrographics supplies.
THE FOLLOWING FINDINGS RELATE TO CONTRACTS AWARDED TO IMR FOR
MICROGRAPHICS SERVICES.
36. Kinzer serves as a work leader for the micrographics lab which is responsible for
preserving records of historic value onto microfilm.
37. In 2002, a project involving the conversion of land warrants was initiated by BAH
Director Frank Suran, and Harry Parker, Chief of the Division of Archives and
Manuscripts (DAMS).
a. Responsibilities of Parker's division include facilitating public access to
valuable documents, to include the internet and other means of electronic
distribution; and reviewing records to determine which had enduring value.
b. Once DAMS designated the records as having historical value, the records
were then forwarded to DARMS for the appropriate preservation process.
38. The two phase project involved scanning the land warrants onto CD, then
converting the images to microfilm for preservation purposes.
a. The land warrants had been laminated, and could not be photographed
utilizing the microfilm process because the lamination reflected the light from
the camera.
b. The conversion process was contracted out because the Bureau did not
have the capability to do the work in- house.
39. A stipulation of the project was that the vendor had to supply a qualified scanner to
perform the scanning work in the DARMS lab.
a. On -site scanning was necessary because the documents were considered
too valuable to leave the possession of the BAH.
b. IMR was the only vendor to provide personnel to conduct the work on -site at
the BAH.
40. The second phase of the project consisted of the conversion of the land warrants
from scanned images to microfilm.
41. Harry Parker, Chief of the Division of Archives and Manuscripts, relied on Kinzer's
expertise and the services of DARMS to determine how to implement the project,
Kinzer, 05 -053
Page 9
and to supervise the vendor.
a. Parker asked Kinzer to obtain a quote from Dawson Flinchbaugh, the state
agency sales representative for IMR.
42. The Governor's Office of Administration maintains a list of qualified vendors on the
Invitation to Qualify (ITQ) contract.
a. The ITQ Contract consists of pre - selected service providers in the areas of
Information Technology and Personnel Services and Training.
b. Kinzer has no input in regard to the ITQ contract parameters, or which
vendors are approved by the Commonwealth.
43. IMR Limited is an approved service provider for micrographics services.
a. IMR has been awarded contracts for micrographics services as a result of
their inclusion on the Office of Administration Invitation To Qualify (ITQ)
Contract.
b. State agencies are required to utilize the service providers listed on the ITQ
Contract for services that fall into the listed categories.
44. Kinzer did not authorize or participate in the selection of IMR as the vendor to
perform any services under the ITQ data services contract of the BAH.
45. In or about March 2002, in response to a request from Kinzer, IMR submitted a
Quotation for Data Capture Services for the Land Records Digitization Project.
46. Dawson Flinchbaugh, IMR Executive Vice President, in charge of State
Government Sales, submitted a quotation on behalf of IMR on 3/11/02.
47. The IMR quote also contained the following quotes:
a. The cost for the services of a document scanner was $.31 per square foot,
for 165,400 square feet, or a total of $51,274.00.
48. Three days after IMR's quotes, an Agency Purchase Request (APR), dated 3/14/02
was prepared which listed the Data Capture Services to be provided by IMR.
a. The APR was approved by Harry Parker and Frank Suran, Bureau Director.
b. The decision to use IMR was based, in part, on IMR agreeing to provide on-
site scanning services.
49. DARMS initiated a Field Purchase Order (FL) #1307841, dated 3/27/02, for IMR's
services under the ITQ Contract for the Data Capture Services.
a. The projected cost of the contract was $51,274.00.
b. The description called for black and white large document scanning.
50. Four APR's (change orders) were submitted during the contract term.
a. Kinzer participated in the preparation of the change orders.
b. All changes were approved by Frank Suran.
Kinzer, 05 -053
Page 10
c. The APR's were essentially change orders which changed and /or expanded
the scope of work provided by IMR.
51. Kinzer completed an APR, dated 9/05/02, which was prepared as Amendment #1 to
FL1307841.
a. The APR was submitted to Kinzer's superiors for approval.
b. Kinzer's signature was accompanied by those of Harry Parker, Frank Suran,
and Teresa Clouser.
c. The Amendment was for black and white large document scanning at $.31
per image and imaging to 35mm microfilm not to exceed $.35 per image.
52. A second APR, prepared on 11/06/02, was to adjust FL1307841, to increase funds
for additional Data Capturing Services.
a. The justification for the APR read, The scope of this project has increased
and we need to have an additional $11,000.00 added to the contract."
1. Kinzer's information was the basis for the increase.
b. Frank Suran approved the APR.
53. A third APR dated 01/22/03, was to amend the FL for additional Data Capture
Services in the amount of $20,000.00.
a. The third APR was initiated by Teresa Clouser in response to an IMR invoice
in the amount of $15,000.00.
b. The additional funds were needed to pay for the IMR Scanner working out of
the DARMS Office, who had at least one week worth of work remaining.
c. The APR is signed by Frank Suran.
54. On February 18, 2003, a fourth APR was submitted to amend FL1307841 for
additional Data Capture Services.
a. Change Order #2 to the Field Purchase Order, dated 3/17/03, prepared and
approved by HMC Purchasing reflected a $7,500.00 increase in the contract
total.
b. The total contract amount was increased to $89,774.00.
c. The APR is signed by Frank Suran.
d. Janice Kinzer had no role in this change order.
55. On 5/29/03, Kinzer and Frank Suran were copied on an e -mail from Teresa Clouser
to Purchasing, which provided that the last invoice from IMR, Contract
#3100010549, had been underestimated, and that an additional $650.27 was
needed to cover the invoice which totaled $3,034.28.
a. Clouser questioned if the adjustment could be made so late in the fiscal
year, to which Purchasing responded by e -mail dated 6/02/03, that additional
funds could be added to cover the final invoice.
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56. An APR, dated 6/02/03, for the Change Order to add the additional $650.27 to
cover the last IMR invoice for the fiscal year was then issued.
a. The original amount thought to be needed to cover the invoice was
$1,002.74 however a hand written correction changed the amount to
$650.27.
1. Per Teresa 6/4/03 ", was noted next to the change.
b. The APR was subsequently approved and signed by Frank Suran and
Teresa Clouser.
1. Kinzer also signed the APR.
c. The justification on the APR states that We underestimated how much we
were going to need these services (projects are on -going during the fiscal
year)."
57. IMR submitted invoices in relation to the Data Capture Service Contract referenced
as SFL 1307841, totaling $90,424.72.
58. In order to process payments to vendors, the Department of Fiscal and Office
Support Services requires invoices to contain an acceptance signature and date,
showing "Received- Correct- Approved ".
59. Kinzer signed several of the invoices in conjunction with a "Received- Correct-
Approved" stamp.
a. Kinzer was the only BAH employee monitoring the work performed by the
IMR technicians.
1. Harry Parker had delegated the Project to Kinzer.
b. Kinzer's signature on the invoices verified that the work set forth on the
invoice had actually been performed as and was accurately documented.
c. BAH did not delegate financial approval responsibility to Kinzer, nor did it
identify any other method by which to accurately verify that the work on the
contract had been completed.
60. Kinzer contacted IMR in or about June 2003 and requested pricing for a Data
Capture Services project which required microfilm services to be undertaken in the
2003/2004 fiscal year.
a. The project was initiated by Harry Parker and Frank Suran.
b. Kinzer was directed by Suran to contact IMR.
1. Suran was satisfied with IMR's services and wanted to continue
working with IMR.
c. Kinzer contacted Dawson Flinchbaugh, IMR Executive Vice - President who is
responsible for State Government Master Contracts in Pennsylvania.
61. On 6/19/03 Kinzer received a quote by e -mail from Dawson Flinchbaugh (IMR)
which consisted of To provide 35mm film from image for FY 03 -04 "; the e-mail
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indicated:
"IMR will provide 35mm roll microfilm of digital images (TIFF) and return them to
PHMC. The volume is unknown at this point but the price will be the same
regardless of the volume. The price for fiscal year July 1, 2003 — June 30, 2004 will
be $0.22 per image. All prices are from the Master IT Services ITQ- Contract No.
2081366 -Data Capture Services."
a. The IMR Document Conversion Pricing Quotation was for the conversion of
land warrants (or similar type documents).
b. The quotation was for the estimated quantity of 165,400 square feet, and
approximately 40 full CD -ROMs.
62. The IMR Proposal suggested scanning the documents as batches of multi -page
TIFF (Tagged Image File Format) Images, which would be published on a CD -Rom
at the end of the project.
a. The Quote, in the amount of $60,332.00, included the following pricing
options: document preparation, scanning, creation of a master CD -Rom,
document quality control, and a lead supervisor.
b. The batch of documents was to be scanned and written to CD -Rom on site at
DARMS.
c. Pages would be scanned at 400dpi resolution into batches of multi -page TIF
images using a scanner and software supplied by the customer.
d. One master CD -Rom would be created at the end of the project.
63. Kinzer prepared the APR in amount $38,000, dated June 23, 2003, for IMR to
convert scanned images to microfilm.
a. The justification for the $38,000.00 expenditure was, This is contract for
Data Capture Services so that our records can be made available on the
internet and on other electronic distribution media."
b. The APR was signed and approved by Frank Suran, BAH Director and
Teresa Clouser.
64. Purchase Order #4500061969, dated 07/07/03, for Data Capture Services was
issued to IMR.
65. Kinzer was identified as the Project Manager on the Purchase Order, dated
07/07/03, which detailed the services to be provided by IMR:
Item #00010 -Data Capture Services, 35 hours @ $35.00 per hour - $1,050.00
Item #00020 -Data Capture Services, 100 hours @ $17.00 per hour - $1,700.00
Item #00030 -Data Capture Services, 100,000 @ $0.33 /ft - $33,000.00
(Color large documents scanning, on an off -site, all hours, UOM is each square
foot.)
Item #00040 -Data Capture Services, 30 @ $25.00 each - $750.00
(CD creation master, on an off -site, all hours, UOM is each CD).
Item #00050 -Data Capture Services, 75 hours @ $20.00 - $1,500.00
(Quality control, on an off -site, all hours).
66. Three Change Orders were issued in regard to Purchase Order #4500061969,
Kinzer, 05 -053
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resulting in an increase to the contract to $39,150.72.
a. Kinzer's review of the Purchase Order resulted in change order #1 which did
not change the amount of the contract.
67. IMR submitted two invoices to the Bureau of Archives and History for the services
provided under P.O. # 4500061969.
68. Kinzer signed both invoices, verifying that the work had been done according to
accepted standards, and that payments, totaling $33,311.30, should be issued.
a. Invoice #996728, dated 08/31/03, was in the amount of $15,970.46.
1. The invoice reflects Kinzer's signature on 9/10/03.
b. Invoice #996975 dated 09/24/03 in the amount of $17,340.84 was signed as
"OK to pay" by Kinzer on 9/30/03.
69. In her position as an Archivist II, with responsibility for the DARMS lab, Kinzer
identified items to be purchased from IMR, was instructed to supervise the work
performed under the contracts with IMR for data services, and certify that services
outlined on IMR invoices were provided, so that payments to IMR could be made.
a. Kinzer did not authorize any payments to IMR.
b. Supplies purchased from IMR consisted of microfilm and microfilm boxes.
1. IMR was the only vendor on state Contract from whom Kodak
microfilm could be purchased.
c. Kinzer's involvement was based on the direction of the BAH Director Frank
Suran and the DAMS Chief Harry Parker.
70. The total value of the contracts BAH entered into with IMR during the time period
July 1, 2001 through December 31, 2006, was $136,296.82.
Supply contacts - $ 12,560.80
Service contracts - $123,736.02
THE FOLLOWING FINDINGS RELATE TO KINZER'S FAILURE TO FILE
STATEMENTS OF FINANCIAL INTERESTS IN HER POSITION AS AN ARCIVIST II.
71. As of calendar year 2005, Kinzer had not filed Statements of Financial Interests
with the Bureau of Archives and History or with the Historical and Museum
Commission during the term of her employment with the Commonwealth.
a. Kinzer did not file forms in her position as an Archivist I.
b. Kinzer did not file forms when she was promoted to an Archivist II.
72. Kinzer did not file SFI's in 2001, 2002, 2003, 2004, and 2005, for calendar years
2000, 2001, 2002, 2003, and 2004.
73. The HMC never directed or required that Kinzer file SFIs in her position as an
Archivist.
a. Kinzer was notified that her position as an Archivist, was not subject to the
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Page 14
financial disclosure provisions of the Ethics Act.
b. Kinzer was notified personally on January 18, 2006, by the Chief of the
Human Resources Department, that she was not required to submit SFIs.
c. Kinzer submitted an SFI on February 24, 2006, for calendar year 2005.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, Janice Kinzer (Kinzer), 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 Kinzer, as an Archivist for the Historical and Museum
Commission (HMC) violated Sections 1103(a) and 1104(a) of the Ethics Act when she
participated in processes at the HMC resulting in contracts being awarded to IMR, a
business which employs her spouse as a vice - president; when she monitored related
contracts and approved payments to IMR; and when she failed to file Statements of
Financial Interests (SFIs) for the 2000, 2001, 2002, 2003, and 2004 calendar years.
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
"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.
Section 1104. Statement of financial interests required to be filed
(a) Each public official of the Commonwealth shall file a
statement of financial interests for the preceding
Kinzer, 05 -053
Page 15
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).
Section 1104(a) of the Ethics Law quoted above requires that each public
official /public employee must file an SFI for the preceding calendar year, each year that he
holds the position and the year after he leaves it.
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.
Kinzer has been employed by the HMC in the Bureau of Archives and History (BAH)
since September of 1983. Kinzer has involvement with two HMC programs: the Security
Microfilm Program and the Security Microfilm Storage Program. Kinzer has duties of
providing archival /records management advice to local government officials; developing
and delivering training sessions; managing the operation of the Local Government Security
Microfilm Storage Program; and serving as a work leader for the State Archives
Micrographics Lab. In addition, Kinzer has duties to prioritize microfilming projects,
oversee contractors, make decisions as to vendors and supplies, make decisions as to
certain equipment repairs, handle contracts involving microfilm programs /storage and
prepare paperwork on contracts for approval.
Kinzer's job description was revised in 1994 to allow her to select, arrange and
preserve public records; participate in systematic surveys and provide advice; prepare
descriptive data pertaining to archival records /manuscripts; supervise the preservation and
repair of archival materials; supervise the maintenance of various records and data;
examine and estimate the historical value of public records; and perform other work related
matters. Kinzer also has responsibilities as to participating in the Security Microfilm
Program, the Security Microfilm Storage Program and electronic records.
IMR is a company that provides document and data management systems,
hardware and software solutions, and document management services, including microfilm
and archival services. IMR has contracted with HMC to provide various services for at
least the past 15 years. Kinzer's spouse is James A. Kinzer, IMR's Vice President of
Government Sales who works on salary plus commission basis. In the time period of July
2001 through December 2005, IMR entered into five contracts with HMC for micrographic
supplies and services. Those contracts were entered into with IMR by the BAH Division of
Archives and Manuscripts (DAMS) and the Division of Archival and Records Management
Kinzer, 05 -053
Page 16
Services (DARMS) using the Department of General Services statewide requirements
contract.
Although Kinzer does not have final approval as to the purchases, she initiates the
paperwork and decides which supplies and equipment are needed. Kinzer typically works
with 35mm microfilm because of its high resolution and silver content. 35mm microfilm is
effective for documents that are of unusual size or in poor condition. Kodak 35mm
microfilm is used in conjunction with the Kodak MRD planetary cameras for quality
purposes. IMR was the only identified authorized dealer on the state contract for Kodak
microfilm that is the industry standard. Kinzer had the responsibility of contacting vendors
on the state contract, including IMR, for price information on supplies for DARMS. Kinzer
did not initiate supply orders without prior authorization from the BAH Secretary. After
supply orders are made, invoices are submitted through the Commonwealth SAP system
and are then sent to the Comptroller for payment.
Kinzer played a role in two purchases of Kodak film from IMR during the time period
of July 2001 through December 2005. Kinzer specified Kodak film because inter alia the
material to be photocopied was oversized. Kodak film was exclusively distributed by IMR,
which was the only vendor identified on the state contract at that time. Kinzer advised the
BAH Secretary that she contacted IMR to price the microfilm. A purchase order was then
issued through the SAP system to purchase the Kodak film from IMR. Kinzer determined
the quantity of film needed, initiated a request for a price quote from IMR and provided the
information to the BAH Secretary for ordering. Kinzer did not approve the purchase order.
DARMS also purchased microfilm boxes from IMR during Kinzer's employment. In
October 2005, Kinzer requested pricing information and product availability for 16mm
microfilm boxes from IMR. After IMR responded with a price quote, Kinzer contacted the
BAH Secretary regarding how the purchase should be effectuated. An agency purchase
request was prepared that identified Kinzer as the DARMS contact person. Although
Kinzer obtained the pricing from IMR and provided the information to the BAH Secretary so
that the purchases could be made, she did not have the authority to give final approval for
the purchase.
As noted above, Kinzer also serves as a work leader for the micrographics lab that
preserves records /documents of historic value on microfilm. In 2002, the Director of DAMS
initiated a project to convert land warrants. The project had two phases, the first involving
the scanning of the land warrants onto a CD followed by the conversion of the images to
microfilm for preservation purposes. The project contemplated a vendor supplying a
qualified scanner to perform the scanning work in the DARMS lab. Given the value of the
documents, it was required that the scanning be done on site. IMR was the only vendor to
provide personnel to conduct onsite work at BAH.
The second phase of the project consisted of the conversion of the land warrants
from scanned images to microfilm. The Division Chief relied on Kinzer to determine how to
implement the second phase of the project and supervise the vendor. The Division Chief
asked Kinzer to obtain a quote from IMR. In this regard, the Governor's Office of
Administration (OA) maintains a list of qualified vendors on the Invitation To Qualify (ITQ)
contract. The ITQ consists of pre - selected service providers in the IT area. Kinzer had no
input as to the ITQ contract parameters or approved vendors.
IMR is an approved service provider for micrographic services. IMR has been
awarded contracts for micrographic services as part of its inclusion on OA's ITQ contract.
State agencies must utilize service providers on the ITQ contract list for services that fall
within the specified categories. Kinzer neither authorized nor participated in the selection
of IMR as a vendor to provide services under the ITQ contract with BAH.
Kinzer, 05 -053
Page 17
In March of 2002, in response to a request from Kinzer, IMR submitted a quotation
to capture data services for the Land Records Digitization Project. Three days after the
IMR quote was received, an Agency Purchase Request (APR) was prepared, which listed
data capture services to be provided by IMR. The APR was approved by the Division
Chief and Bureau Director. DARMS then initiated a Field Purchase Order (FL) under the
ITQ contract for the data capture services. There were four change orders as to the
contract. Although Kinzer participated in the preparation of the change orders, the change
orders were approved by the Bureau Director.
After a first amendment to the contract was completed by Kinzer in September of
2002, it was submitted to her superiors for approval. A second APR was prepared in
November of 2002 to increase funds for additional data capture services. Kinzer supplied
the information that was the basis for the increase, which was approved by the Bureau
Director. A third APR to provide for additional data capture services was prepared in
January 2003 at the initiation of the BAH Secretary. The APR was signed by the Bureau
Chief. The fourth APR for additional data capture services was prepared and then signed
by the Bureau Chief. Kinzer had no role as to the fourth change order.
Subsequently, an APR dated June of 2003 was made to provide for an
underestimation of the IMR invoice. The APR was approved and signed by the Bureau
Chief and the BAH Secretary. Kinzer also signed the APR.
For processing payments to vendors, the Department of Fiscal and Office Support
Services requires invoices to contain an acceptance signature and date showing a
"Received- Correct - Approved" stamp. As Kinzer was the only BAH employee monitoring
the work performed by IMR technicians, she signed several of the invoices. Kinzer's
signature on the invoices constituted a statement that the work had been performed and
accurately documented.
In June of 2003, Kinzer, per the direction of the Bureau Director, contacted IMR
regarding another project that required microfilm services. Kinzer received a quote from
IMR for providing 35mm film. The IMR proposal was for scanning documents as batches
of multi -page tagged file format (TIF) images that could be recorded onto a CD -rom at the
end of the project. Kinzer prepared an APR for IMR to convert the scanned images to
microfilm. The APR was signed and approved by the Bureau Director and the BAH
Secretary. Kinzer was identified as the Project Manager on the purchase order.
Three change orders occurred as to the purchase because of contract increases.
Kinzer reviewed the first purchase order change that did not vary the amount of the
contract. IMR submitted two invoices that Kinzer signed, thereby verifying that the work
had been done according to standards so that payments would be issued.
Kinzer in her position did not have the authority to authorize any payments to IMR.
As to supplies purchased from IMR, consisting of microfilm and microfilm boxes, IMR was
the only vendor on a state contract from whom Kodak microfilm could be purchased.
Lastly, Kinzer's involvement was based upon directions of the Bureau Director and
Division Chief. For the time period of July 2001 through December 2006, the total value
of contracts entered into with IMR totaled $136,296.82.
Turning to the matter of SFIs, Kinzer did not file in either her position as an Archivist
I or Archivist II at HMC. The HMC never directed or required Kinzer to file SFIs in her
position as an Archivist. The Chief of the Human Resources Department in HMC notified
Kinzer that she was not subject to the financial disclosure provisions of the Ethics Act.
Although Kinzer did not file SFIs for the calendar years 2000 through 2004, she submitted
an SFI on February 24, 2006 for the calendar year 2005.
Having highlighted the Stipulated Findings and issues before us, we shall now apply
the Ethics Act to determine the proper disposition of this case.
Kinzer, 05 -053
Page 18
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 no violation of Section 1103(a) of the Public
Official and Employee Ethics Law, 65 Pa.C.S. §1103(a)
occurred when Kinzer participated in the process at the
HMC to draft specifications for Requests for Proposals
resulting in contracts being awarded to IMR, a company
which employs her husband as a vice - president.
b. That an unintentional violation of Section 1104(a) of the
Public Official and Employee Ethics Law, 65 Pa.C.S.
§1104(a) occurred when Kinzer failed to file Statements
of Financial Interests forms for calendar years 2001,
2002, 2003, 2004 and 2005.
4. Kinzer agrees to make payment in the amount of $250.00 in
settlement of this matter payable to the Commonwealth of
Pennsylvania, and forwarded to the Pennsylvania State Ethics
Commission within thirty (30) days of the issuance of the final
adjudication in this matter.
Consent Agreement, ¶3 and ¶4.
In applying Section 1103(a) of the Ethics Act to the first allegation, a violation of that
Section occurs when (1) a public official or a public employee (2) uses the authority of
office or confidential information to (3) obtain a private pecuniary benefit for (4) himself, a
member of his immediate family or a business with which a member of his immediate family
is associated. If the foregoing four requisite elements are not present, there is no violation
of the Ethics Act. See, McGuire and Marchitello v. SEC, 657 A.2d 1346 (Pa. Commw.
1995).
As to the first element, Kinzer is a public employee, even though the Human
Resources Office at HMC determined that she was not subject to the financial disclosure
requirements. In this regard, it is clear from a review of Kinzer's duties and
responsibilities, as set forth in part in her job descriptions, that she takes or recommends
official action of a non - ministerial nature as to subcategories 1 and 5 of the Ethics Act
definition of "public employee ". Skipping for the moment the second requirement as to a
use of office, the third element of a private pecuniary benefit is present in that IMR
received payments as a result of the different contracts with HMC. For the fourth element,
those private pecuniary benefits inured to IMR, a business with which a member of
Kinzer's immediate family is associated. In this regard, Kinzer's spouse is employed as a
Vice President by IMR.
However, a review of the Stipulated Findings in this case reflects that there were no
uses of authority of office on the part of Kinzer. The record establishes that there were
various contracts between the HMC and IMR for purchases of materials and services.
Because the materials and services that HMC provided were very specialized, the
contracts had to be awarded to IMR for specified reasons: it was the exclusive distributor
as for 35mm Kodak microfilm, it was the only vendor on the state contract for those
particular services or it was the only vendor that could provide personnel to perform
services on site for processing valuable state documents.
Kinzer, 05 -053
Page 19
Although Kinzer was involved as to the IMR contracts for supplies or services, her
actions were typically directed by individuals in higher authority who executed the
approvals for the purchase of such materials or services from IMR. In that Kinzer's actions
were the result of following the processes that were in place or the directives of a Bureau
Director, Division Chief or the BAH Secretary, we conclude that there were no uses of
authority of office on the part of Kinzer as per the Stipulated Findings. Accordingly, Kinzer
did not violate Section 1103(a) of the Ethics Act as to her participation in the award by the
Historical and Museum Commission of contracts for materials and services by IMR, a
business with which her spouse is associated, in that Kinzer's actions were the result of
the agency's policies and directives and the dictates of individuals in higher authority, and
not uses of authority of office. See, Scales, Order 1394; Glover, Order 1389.
Turning to the SFI allegation, the record reflects that Kinzer failed to file SFIs for
calendar years 2001 through 2004. Even though Kinzer was notified by the HMC Human
Resources Department that she was not required to file SFIs, the record establishes that
Kinzer was a public employee based upon her duties and responsibilities. Therefore,
Kinzer unintentionally violated Section 1104(a) of the Ethics Act when she failed to file
SFIs for the calendar years 2001 through 2004. See, Baxter, Order 985. The parties have
stipulated to a technical violation for the 2005 calendar year; however, based on the filing
by Kinzer of the 2005 calendar year SFI on February 24, 2006 and an allegata et probata
issue, we need not address this matter.
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. Accordingly, Kinzer is directed to
make payment in the amount of $250 payable to the Commonwealth of Pennsylvania and
forwarded to this Commission within thirty (30) days of the issuance of the final
adjudication in this matter. Kinzer is directed to file SFIs for the calendar years 2001
through 2004 within 30 days of the issuance of this adjudication with the originals filed with
the Historical and Museum Commission and copies filed with this Commission for
compliance verification purposes. Compliance with the foregoing will result in the closing
of this case with no further action by this Commission. Noncompliance will result in the
institution of an order enforcement action.
IV. CONCLUSIONS OF LAW:
1. Janice Kinzer, as an Archivist for the Historical and Museum Commission, is a
public employee subject to the provisions of Act 9 of 1989 as codified by Act 93 of
1998.
2. Kinzer did not violate Section 1103(a) of the Ethics Act as to her participation in the
award by the Historical and Museum Commission of contracts for materials and
services by IMR, a business with which her spouse is associated, in that Kinzer's
actions were the result of the agency's policies and directives and the dictates of
individuals in higher authority, and not uses of authority of office.
3. Kinzer unintentionally violated Section 1104(a) of the Ethics Act when she failed to
file SFIs for the calendar years 2001 through 2004.
In Re: Janice Kinzer,
Respondent
ORDER NO. 1414
File Docket: 05 -053
Date Decided: 10/4/2006
Date Mailed: 10/20/2006
1 Janice Kinzer, as an Archivist for the Historical and Museum Commission, did not
violate Section 1103(a) of the Ethics Act as to her participation in the award by the
Historical and Museum Commission of contracts for materials and services by IMR,
a business with which her spouse is associated, in that Kinzer's actions were the
result of the agency's policies and directives and the dictates of individuals in
higher authority, and not uses of authority of office.
2. Kinzer unintentionally violated Section 1104(a) of the Ethics Act when she failed to
file Statements of Financial Interests for the calendar years 2001 through 2004.
3. Per the Consent Agreement of the parties, Kinzer is directed to make payment in
the amount of $250 payable to the Commonwealth of Pennsylvania and forwarded
to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance
of the final adjudication in this matter.
4. Kinzer is directed to file Statements of Financial Interests for the calendar years
2001 through 2004 within 30 days of the issuance of this adjudication with the
originals filed with the Historical and Museum Commission and copies filed with this
Commission for compliance verification purposes.
5. Compliance with paragraphs 3 and 4 will result in the closing of this case with no
further action by this Commission. Non - compliance will result in the institution of an
order enforcement action.
BY THE COMMISSION,
Louis W. Fryman, Chair