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HomeMy WebLinkAbout08-591 HoncharJames A. Honchar, SPHR Deputy Secretary for Human Resources and Management Commonwealth of Pennsylvania Governor's Office of Administration 517 Finance Building Harrisburg, PA 17120 Dear Mr. Honchar: ADVICE OF COUNSEL October 28, 2008 08 -591 This responds to your letter dated September 22, 2008, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether individuals employed by the Pennsylvania Department of Public Welfare as Income Maintenance Caseworkers under job code 44720 would be considered "public employees" subject to the Public Official and Employee Ethics Act ("Ethics Act "), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, and in particular, the requirements for filing Statements of Financial Interests pursuant to the Ethics Act. Facts: As Deputy Secretary for Human Resources and Management with the overnor's Office of Administration ("OA "), you request an advisory from the Pennsylvania State Ethics Commission as to whether those individuals employed by the Pennsylvania Department of Public Welfare ( "DPW ") as Income Maintenance Caseworkers under job code 44720 are "public employees" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. You specifically ask whether such Income Maintenance Caseworkers are required to file Statements of Financial Interests ("SFIs ") pursuant to the Ethics Act. A copy of the current job classification specifications for the position of Income Maintenance Caseworker (job code 44720) has been submitted and is incorporated herein by reference. It is administratively noted that the job classification specifications under job code 44720 are dated June 1, 1989. Per the job classification specifications under job code 44720, an Income Maintenance Caseworker erforms professional work assessing clients' social services and employment needs, determining client eligibility for Income Maintenance Program services and making appropriate referrals for services. The specific duties and authority of an Income Maintenance Caseworker under job code 44720 include, inter alia: Honchar, 08 -591 October 28, 2008 Page 2 • Assessing clients' social services and employment needs; • Interviewing applicants to determine eligibility for financial assistance and related income maintenance programs such as, but not limited to, Cash Assistance, Medical Assistance, Food Stamps, Nursing Home Care, and Employment Referrals; • Determining eligibility for various categories of assistance based on factors such as income, personal property, real property, legally responsible relatives, and employment status; • Evaluating special needs of clients; • Authorizing grants that conform to agency requirements or making referrals to other community resources; • Re- determining eligibility through periodic review of client situations; • Determining occurrence and circumstances of overpayments and referring information to the Office of Fraud and Abuse Investigation and Restitution for resolution; • Providing clients or their families with information on community resources for social and employment services and making appropriate referrals for services; • Assisting clients in locating employment through the Pennsylvania Employables Programs, monitoring clients in the Community Work Experience Program, and imposing sanctions as necessary; and • Representing one or more clients in the process of obtaining SSI benefits. Job classification specifications, at 1 -2. The job classification specifications state that the work of the Income Maintenance Caseworker is performed in accordance with established policies and procedures, under general supervision. Job classification specifications, at 1. Per the job classification specifications, "[s]upervision involves selective review of cases assigned to the worker," and "[r]esponsibil'ity for determination or redetermination action rests with the worker." Id. You state that your request for an advisory is in response to Makar, Order 1383, in which the Commission determined that Robert W. Makar violated on 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), when he failed to file SF's in his capacity as an Income Maintenance Caseworker with DPW. You note that in an Advice issued in 1979, specifically, Preloh, Advice 79 -563, a previous Chief Counsel of the Commission determined that an individual employed as an "Income Maintenance Worker" with DPW was not a "public employee" under a former version of the Ethics Act, Act 170 of 1978. You state that historically, OA has not required Income Maintenance Caseworkers to file SFIs. You state that requiring Income Maintenance Caseworkers to file SF's would increase DPW's work in coordinating employee SFI filings to almost three times the amount required to date and could necessitate the reevaluation of the filing status for other job titles with similar duties. Administrative notice is taken of the following additional facts. The Preloh Advice was issued prior to the promulgation of regulations under the Ethics Act. The Preloh Advice specifically stated that the Advice was subject to change upon the adoption of regulations. Preloh, Advice 79 -563, at 2. The Preloh Advice was not based upon job classification specifications, and it predated by almost ten years the date listed on the Honchar, 08 -591 October 28, 2008 Page 3 current job classification specifications under job code 44720. The Preloh Advice was issued based upon the following, limited job description: This employee works in the Medical Unit full time. Employee is responsible for determining initial and continued eligibility for Medical Assistance. Applications are taken in the field, office or received by mail from clients or hospitals. A personal interview is required on all applications and redeterminations. The worker is responsible for carrying an active caseload averaging 230 cases. The employee is responsible for processing overpayments, underpayments, referrals to Claim Settlement and any changes in the active caseload. In addition, employee is responsible for processing a selected number of validations of Medical Assistance cases in which all factors of eligibility must be verified. The worker contacts other agencies, hospitals and makes referrals to Social Service. Such contacts are made by telephone, personal interview or by letter. She acts as ACI one week out of every seven weeks, rotating schedule. (Job Description of Subject of Preloh, Advice 79 -563). Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. To the extent you have inquired as to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may and shall be addressed. The Ethics Act defines the term "public employee" as follows: § 1102. Definitions "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or Honchar, 08 -591 October 28, 2008 Page 4 (5) any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person. The term shall not include individuals who are employed by this Commonwealth or any political subdivision thereof in teaching as distinguished from administrative duties. 65 Pa. C. S. § 1102. The Regulations of the State Ethics Commission similarly define the term "public employee" and set forth the following additional criteria: (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of "public employe ": (A) The individual normally performs his responsibility in the field without onsite supervision. (B) The individual is the immediate supervisor of a person who normally performs his responsibility in the field without onsite supervision. (C) office. (D) decisions. The individual is the supervisor of a highest level The individual has the authority to make final (E) The individual has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions. (F) The individual prepares or supervises the preparation of final recommendations. (G) The individual makes final technical recommen- dations. (H) The individual's recommendations or actions are an inherent and recurring part of his position. (1) The individual's recommendations or actions affect organizations other than his own organization. (iii) The term does not include individuals who are employed by the Commonwealth or a political subdivision of the Commonwealth in teaching as distinguished from administrative duties. (iv) Persons in the following positions are generally considered public employes: (A) Executive and special directors or assistants reporting directly to the agency head or governing body. Honchar, 08 -591 October 28, 2008 Page 5 (B) Commonwealth bureau directors, division chiefs or heads of equivalent organization elements and other governmental body department heads. (C) Staff attorneys engaged in representing the department, agency or other governmental bodies. (D) Engineers, managers and secretary- treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, administrative officers, housing and building inspectors, investigators, auditors, sewer enforcement officers and zoning officers in all governmental bodies. (E) Court administrators, assistants for fiscal affairs and deputies for the minor judiciary. (F) School superintendents, assistant superintendents, school business managers and principals. (G) Persons who report directly to heads of executive, legislative and independent agencies, boards and commissions except clerical personnel. (v) Persons in the following positions are generally not considered public employes: (A) City clerks, other clerical staff, road masters, secretaries, police officers, maintenance workers, construction workers, equipment operators and recreation directors. (B) Law clerks, court criers, court reporters, probation officers, security guards and writ servers. (C) School teachers and clerks of the schools. 51 Pa. Code § 11.1. The following terms are defined in the Ethics Act as follows: § 1102. Definitions "Ministerial action." An action that a person performs in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of the persons own judgment as to the desirability of the action being taken. "Nonministerial actions." An action in which the person exercises his own judgment as to the desirability of the action taken. 65 Pa. C. S. § 1102. Status as a "public employee" subject to the Ethics Act is determined by an objective test. The objective test applies the Ethics Act's definition of the term "public employee" and the related regulatory criteria to the powers and duties of the position itself. Typically, the powers and duties of the position are established by objective Honchar, 08 -591 October 28, 2008 Page 6 sources that define the position, such as the job description, job classification specifications, and organizational chart. The objective test considers what an individual has the authority to do in a given position based upon these objective sources, rather than the variable functions that the individual may actually perform in the position. See, Philips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion 04 -002; Shienvold, Opinion 04 -001; Shearer, Opinion 03 -011. The Commonwealth Court of Pennsylvania has specifically considered and approved this Commission's objective test and has directed that coverage under the Ethics Act be construed broadly and that exclusions under the Ethics Act be construed narrowly. See, Phillips, supra. The first portion of the statutory definition of "public employee" includes individuals with authority to take or recommend official action of a nonministerial nature. 65 Pa.C.S. § 1102. Likewise, the regulatory criteria for determining status as a public employee, as set forth in 51 Pa. Code § 11.1( "public employee ")(ii), include not only individuals with authority to make final decisions but also individuals with authority to forward or stop recommendations from being sent to final decision - makers; individuals who prepare or supervise the preparation of final recommendations; individuals who make final technical recommendations; and individuals whose recommendations are an inherent and recurring part of their positions. See, Reese /Gilliland, Opinion 05 -005. In Metrick, Order 1037, issued in 1997, the State Ethics Commission ruled, in pertinent part, that an Income Maintenance Caseworker employed by DPW was a "public employee" subject to the Ethics Act. The Commission's ruling was based upon the duties and responsibilities set forth in the job description and job classification specifications for the position of Income Maintenance Caseworker. Id. at 3 -4, 38. The job classification specifications reviewed by the Commission in Metrick are encompassed within the job classification specifications under job code 44720. The ruling of the Commission in Metrick, supra, superseded Preloh, Advice 79- 563 as to the status under the Ethics Act of Income Maintenance Caseworkers under job code 44720. See also, Makar, Order 1383; Drost, Order 1415. Accordingly, Preloh, Advice 79 -563 has no precedential effect as to your inquiry. Based upon the above judicial directives, the provisions of the Ethics Act, the State Ethics Commission Regulations, and the Opinions and Orders of the State Ethics Commission, in light of the duties and responsibilities set forth in the job classification specifications under job code 44720, the necessary conclusion is that individuals employed by DPW as Income Maintenance Caseworkers under job code 44720 are 'public employees" subject to Ethics Act and the Regulations of the Commission, and in particular, the requirements for filing Statements of Financial Interests pursuant to the Ethics Act. Such individuals have the ability to take or recommend official action with respect to subparagraphs (2) and (5) within the definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. § 1102. Specifically, the following duties set forth in the job classification specifications would be sufficient to establish the Income Maintenance Caseworkers' status as "public employees" subject to the Ethics Act: • Determining eligibility for financial assistance and related income maintenance programs such as Cash Assistance, Medical Assistance, Food Stamps, Nursing Home Care, and Employment Referrals; • Making appropriate referrals for services; • Assisting clients in locating employment through the Pennsylvania Employables Programs, monitoring clients in the Community Work Experience Program, and imposing sanctions as necessary; • Authorizing grants that conform to agency requirements; Honchar, 08 -591 October 28, 2008 Page 7 • Re- determining eligibility through periodic review of client situations; • Determining occurrence and circumstances of overpayments and referring information to the Office of Fraud and Abuse Investigation and Restitution for resolution; and • Representing one or more clients in the process of obtaining SSI benefits. The foregoing activities would also meet the criteria for determining the status of Income Maintenance Caseworkers as public employees under the Regulations of the State Ethics Commission, specifically at 51 Pa. Code § 11.1, "public employee," subparagraphs (i) and (ii). Therefore, you are advised that individuals employed by DPW as Income Maintenance Caseworkers under job code 44720 are "public employees" subject to the provisions of the Ethics Act and the Regulations of the Pennsylvania State Ethics Commission, and in particular, the requirements for filing Statements of Financial Interests pursuant to the Ethics Act. Conclusion: Individuals employed by the Pennsylvania Department of Public Welfare as Income Maintenance Caseworkers under job code 44720 are "public employees" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., and the Regulations of the Pennsylvania State Ethics Commission, and in particular, the requirements for filing Statements of Financial Interests pursuant to the Ethics Act. Accordingly, each such Income Maintenance Caseworker must file a Statement of Financial Interests each year in which he or she holds the aforesaid position and the year following termination of such service. Pursuant to Section 1107(11) of the Ethics Act, an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, provided the requester has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 - 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Robin M. Hittie Chief Counsel