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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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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 Page 2 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 Page 3 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 Page 4 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 Page 5 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. Kinzer, 05 -053 Page 6 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 Page 7 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 Page 8 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. Kinzer, 05 -053 Page 11 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 Kinzer, 05 -053 Page 12 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 Page 13 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 Kinzer, 05 -053 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