HomeMy WebLinkAbout09-522 MonforteWilhelmina D. Heckman
Steve Monforte
Adams County Assistance Office
Pennsylvania Department of Public Welfare
225 South Franklin Street
P.O. Box 4446
Gettysburg, PA 17325 -4446
Dear Ms. Heckman and Mr. Monforte:
ADVICE OF COUNSEL
March 19, 2009
09 -522
This responds to your Financial Interest Disclosure Appeal forms and related
correspondence received by the Pennsylvania State Ethics Commission between
January 16, 2009, and February 2, 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 Casework Supervisors under job code 44730 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 Casework Supervisors for the Pennsylvania Department of Public Welfare
( "DPW ") under job code 44730, 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 § 11.1. You specifically question whether you are required to file Statements of
Financial Interests ("SFIs ").
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 Casework
Supervisor (job code 44730) has been obtained and is also incorporated herein by
reference.
Per each of your official DPW position descriptions, you are responsible for
directing staff involvement in providing income maintenance program services and
benefits for economically disadvantaged individuals and families. Your work is
Heckman /Monforte, 09 -522
March 19, 2009
Page 2
professional and supervisory in nature. Your duties and responsibilities include the
following:
• Supervising assigned staff engaged in determining and redetermining client
eligibility for various income maintenance program services and benefits,
assisting eligible clients in obtaining in -house services, and /or referring
individuals and families to appropriate community agencies and resources;
• Interpreting and conveying the application of public assistance rules, regulations,
and operational procedures;
• Providing coaching, on- the -job training, and technical assistance to staff, as
needed, on the correct application of policy and procedures, techniques for
interviewing clients, and reviewing, updating, and maintaining case records;
• Distributing casework assignments and monitoring caseload management and
the accuracy, completeness and timeliness of decisions;
• Following up with staff to assure that work is completed timely and correctly and
that staff has a complete understanding of the correct application of policy and
procedures;
• Directing staff to advocate for, represent and assist clients in obtaining services
and benefits for which they are eligible and /or in locating employment and
achieving self- sufficiency;
• Responding to client or client - related inquiries and investigating client complaints;
• Assisting caseworkers to prepare for and represent the agency at fair hearings or
legal proceedings;
• Monitoring the time and attendance of staff and approving or denying requested
leave;
• Maintaining a supervisory file on each employee and recording and tracking
performance;
• Evaluating caseworker performance by completing the Employee Performance
Review at least yearly and Progress Reviews as needed;
• Making recommendations regarding personnel actions;
• Providing positive feedback to employees and administering discipline, when
needed, to improve worker performance;
• Handling grievances, including investigation of the complaint, consultation with
management, and decision at level 1; and
• Participating in agency planning and the development of agency procedures.
Position Descriptions, at 1 -2.
It is noted that Mr. Monforte's official position description provides that his duties
and responsibilities also include: (1) coordinating the agency tracking and submission
of requests for Fair Hearing, including assuring that appeal requests are responded to in
a timely manner; and (2) serving as the agency's EBT Coordinator, assisting staff in
resolving EBT issues, and reporting EBT problems to headquarters. See, Monforte
Heckman /Monforte, 09 -522
March 19, 2009
Page 3
Position Description, at 1. It is further noted that Ms. Heckman's official position
description provides that her duties and responsibilities also include serving as the
agency Employment and Training Coordinator and making recommendations to
management regarding the best use of employment and training resources within and
outside the agency. See, Heckman Position Description, at 1.
Per the job classification specifications under job code 44730, an Income
Maintenance Casework Supervisor performs professional and supervisory work
directing staff involvement in providing income maintenance program services and
benefits for economically disadvantaged clients at a county assistance office for DPW.
The specific duties and authority of an Income Maintenance Casework Supervisor
under job code 44730 include, inter alia:
• Supervising and /or providing formal training for staff engaged in
determining /redetermining client eligibility for income maintenance program
services and benefits;
• Supervising staff in locating employment for clients through the Office of Income
Maintenance's Employment and Training program, referring clients or their family
members to appropriate agencies or community resources for needed social
services, maximizing child support by coordinating with local Domestic Relations
Offices to ensure client cooperation in establishing paternity, and obtaining SSI
benefits for eligible clients by representing and advocating for their interests in
the administrative hearing processes;
• Distributing work assignments to ensure effective utilization of staff and to
maintain an acceptable level of accuracy and production;
• Reviewing client case records to determine completeness, accuracy, and
timeliness of staff decisions on clients' eligibility for income maintenance and
related program services and benefits;
• Evaluating staff progress in training programs and the application of appropriate
governing policies and regulations in their work performance, and making
recommendations regarding personnel actions affecting employee retention,
termination or extension in training status; and
• Evaluating staff performance and making recommendations regarding personnel
actions.
Job classification specifications, at 1 -2.
Your Position Descriptions state that you work with considerable independence
within standard operating procedures, and that you are part of the management team
that develops planning and agency procedures. Heckman Position Description, at 2;
Monforte Position Description, at 2 -3. The job classification specifications state that the
work of the Income Maintenance Casework Supervisor is performed independently in
accordance with established policies and procedures, under the direction of an
administrative supervisor who reviews the work performed. Job classification
specifications, at 1.
On your Financial Interest Disclosure Appeal forms, you state, inter alia, that the
duties of an Income Maintenance Casework Supervisor are performed under direct
supervision and are ministerial in nature, and Income Maintenance Casework
Supervisors 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
Heckman /Monforte, 09 -522
March 19, 2009
Page 4
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
(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.
Heckman /Monforte, 09 -522
March 19, 2009
Page 5
(D) The individual has the authority to make final
decisions.
(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:
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March 19, 2009
Page 6
(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
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 Casework Supervisors with DPW under job
code 44730, you are "public employees" subject to the Ethics Act and the Regulations of
the Commission, and in particular, the requirements for filing SFIs pursuant to the Ethics
Act. You have the ability to take or recommend official action of a nonministerial nature
with respect to subparagraph (5) within the definition of "public employee" as set forth in
the Ethics Act, 65 Pa.C.S. § 1102. For example, you have the authority to: (1) evaluate
Heckman /Monforte, 09 -522
March 19, 2009
Page 7
staff performance; and (2) make recommendations regarding personnel actions. This
authority in and of itself is sufficient to establish your status as public employees subject
to the Ethics Act. There is no question that in evaluating staff performance and making
recommendations regarding personnel actions, your official job duties and
responsibilities would have a significant economic impact upon the interests of affected
staff as well as the interests of taxpayers with regard to the expenditure of public funds.
Cf., Mihalik, Advice 07 -511.
Additionally, your authority to: (1) supervise and train staff engaged in
determining /redetermining client eligibility for income maintenance program services
and benefits; (2) supervise staff in locating employment for clients through the Office of
Income Maintenance's Employment and Training program, refer clients or their family
members to appropriate agencies or community resources for needed social services,
maximize child support by coordinating with local Domestic Relations Offices to ensure
client cooperation in establishing paternity, and obtain SSI benefits for eligible clients by
representing and advocating for their interests in the administrative hearing processes;
(3) review client case records to determine completeness, accuracy, and timeliness of
staff decisions on clients' eligibility for income maintenance and related program
services and benefits; (4) investigate client complaints; (5) monitor the time and
attendance of staff and approve or deny requested leave; (6) handle grievances; and (7)
administer discipline, when needed, to improve worker performance, would provide
additional support for the conclusion that you are "public employees" subject to the
provisions of the Ethics Act.
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
Casework Supervisors for DPW under job code 44730, 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 Casework Supervisors
employed by the Pennsylvania Department of Public Welfare under job code 44730,
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.
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.
Heckman /Monforte, 09 -522
March 19, 2009
Page 8
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