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HomeMy WebLinkAbout09-519 HallADVICE OF COUNSEL Cathy L. Baker Cynthia A. Becker Lisa M. Brilhart- Keiser Jerri L. Hall Karl D. Ledford Mark D. Miller Ryan Minnich Adams County Assistance Office Pennsylvania Department of Public Welfare 225 South Franklin Street P.O. Box 4446 Gettysburg, PA 17325 -4446 Dear Ladies and Gentlemen: March 13, 2009 09 -519 This responds to your Financial Interest Disclosure Appeal forms and related correspondence received by the Pennsylvania State Ethics Commission between January 15, 2009, and February 4, 2009, which collectively will be treated as a request for advice from the 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: You seek a determination as to whether, in your capacities as Income Maintenance Caseworkers for the Pennsylvania Department of Public Welfare ( "DPW ") under job code 44720, you 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 § Statements You specifically question whether you are required to file tatements of Financial Interests ("SF's"). Each of you has submitted a copy of your official DPW position description, which documents are incorporated herein by reference. A copy of the current job classification specifications for the position of Income Maintenance Caseworker (job code 44720) has been obtained and is also incorporated herein by reference. Baker, Becker, Brilhart- Keiser, Hall, Ledford, Miller, Minnich, 09 -519 March 13, 2009 Page 2 Per each of your official DPW position descriptions, your duties and responsibilities include the following: • Establishing ongoing eligibility for programs administered by DPW in a humane, professional, and confidential manner; • Preparing for and conducting interviews, gathering and providing information, assisting clients to complete required forms when necessary, and verifying eligibility criteria; • Completing an initial screening of applicants for cash, food stamps (including expedited benefits), and medical benefits; • Completing the initial determination of eligibility for applicants for food stamps and medical benefits and for cash and the Low Income Home Energy Assistance Program as needed, and for cash applicants, developing a plan for self - sufficiency with the client in order to establish short -term and long -term goals and identify the individual steps required to meet the goals; • Managing a caseload consisting of individuals and families receiving various benefits, determining continuing eligibility for benefits by assisting clients to obtain verification and complete necessary forms, and determining eligibility for special allowances and issuing dispositions in a timely manner providing qualifying information to recipients; • Completing all required paperwork and data input, notifying clients, and issuing benefits in order to assure accurate and timely determination of initial, continued, and special allowance eligibility; • Providing /assuring case maintenance by responding to computer enerated information and changes in client circumstances, setting controls for future changes, responding to the hearings /appeals process, and completing required reports; • Notifying the supervisor of work status through pre - scheduled conferences in order to ensure that appropriate action is taken, that all pending actions are completed timely, and that all work is submitted and /or accounted for as required by policy /procedure; • Providing information and referral services by identifying special needs, discussing these needs with the client, and offering and making appropriate referrals to programs such as, for example, Disability Advocate Program, LIHEAP, employment and training programs, and community agencies and services; and • Processing overpayments by assessing income, resources and other pertinent information, investigating all complaints and filing appropriate notices and reports using the proper forms, and attending hearings as an agency witness in order to assure that benefits are properly processed. Position Descriptions, at 1 -2. It is administratively noted that Ms. Brilhart - Keiser's official position description provides that her duties and responsibilities also include maintaining a caseload including "MPP." See, Brilhart- Keiser Position Description, at 2. Baker, Becker, Brilhart- Keiser, Hall, Ledford, Miller, Minnich, 09 -519 March 13, 2009 Page 3 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: • 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. On your various Financial Interest Disclosure Appeal forms, you state, inter alia, that: the duties of an Income Maintenance Caseworker are performed under direct supervision and are ministerial in nature; Income Maintenance Caseworkers have no supervisory responsibilities or authority to make final decisions; and Income Maintenance Caseworkers have not historically been required to file SFIs. 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 Baker, Becker, Brilhart- Keiser, Hall, Ledford, Miller, Minnich, 09 -519 March 13, 2009 Page 4 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 (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) The individual is the supervisor of a highest level field office. (D) The individual has the authority to make final decisions. Baker, Becker, Brilhart- Keiser, Hall, Ledford, Miller, Minnich, 09 -519 March 13, 2009 Page 5 (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. (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. Baker, Becker, Brilhart- Keiser, Hall, Ledford, Miller, Minnich, 09 -519 March 13, 2009 Page 6 (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 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 applying the objective test in the instant matter, the necessary conclusion is that, in your capacities as Income Maintenance Caseworkers with DPW under job code 44720, you are "public employees" subject to Ethics Act and the Regulations of the Commission, and in particular, the requirements for filing SFIs pursuant to the Ethics Act. See, Metrick, Order 1037; Makar, Order 1383; Drost, Order 1415; Honchar, Advice of6unsel 08- 591. As Income Maintenance Caseworkers under job code 44720, you have the ability to take or recommend official action of a nonministerial nature with respect to Baker, Becker, Brilhart- Keiser, Hall, Ledford, Miller, Minnich, 09 -519 March 13, 2009 Page 7 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 official position descriptions and the job classification specifications under job code 44720 would be sufficient to establish your 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; • 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; • Representing one or more clients in the process of obtaining SSI benefits; • Determining eligibility for special allowances and issuing dispositions in a timely manner providing qualifying information to recipients; • Providing information and referral services by identifying special needs, discussing these needs with the client, and offering and making appropriate referrals to programs such as, for example, Disability Advocate Program, LIHEAP, employment and training programs, and community agencies and services; and • Attending hearings as an agency witness in order to assure that benefits are properly processed. The foregoing activities would also meet the criteria for determining your status 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 in your capacities as Income Maintenance Caseworkers for DPW under job code 44720, you 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 SF's pursuant to the Ethics Act. Conclusion: In your capacities as Income Maintenance Caseworkers employed by the Pennsylvania Department of Public Welfare under job code 44720, you 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 of you must file a Statement of Financial Interests each year in which you hold the aforesaid position and the year following termination of such service. Baker, Becker, Brilhart- Keiser, Hall, Ledford, Miller, Minnich, 09 -519 March 13, 2009 Page 8 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