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HomeMy WebLinkAbout10-528 Reed ADVICE OF COUNSEL January 20, 2010 Camilla A. Williams Tia Eubanks Valerie Singleton Sally Riegel Linda Days Charlotte W. Dorfman Khim Lim Kathleen Beck Mathew T. Abraham Fong Chim Christine Devlin Elizabeth Roddy Beverly Kimbrough Akhenaton S. Mikell Tia Jackson Bernadette Staley Phaedra Reed Eileen Rowe Mary T. Landis M. Laverne Smith Sheila Davis-Mayo Wanda Lorenzi-Bibbs Margaret Howell Mary A. Island Jerome Manson Delaware County Assistance Office Pennsylvania Department of Public Welfare 845 Main Street Darby, PA 19023 10-528 Dear Income Maintenance Caseworkers: This responds to your Financial Disclosure Appeals, which will be treated as requests for advice from the Pennsylvania State Ethics Commission. Issue: Whether an individual employed by the Pennsylvania Department of Public Welfare (“DPW”) as an Income Maintenance Caseworker under job code 44720 would be considered a “public employee” subject to the Public Official and Employee Income Maintenance Caseworkers, 10-528 January 20, 2010 Page 2 Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq., and in particular, the requirements for filing Statements of Financial Interests pursuant to the Ethics Act. Facts: You seek a determination as to whether, as Income Maintenance Caseworkers with DPW, you are public employees subject to the Ethics Act and the Regulations of the State Ethics Commission, and in particular, the requirements for fling Statements of Financial Interests pursuant to the Ethics Act. Copies of the job classification specifications under job code 44720 have been obtained and are incorporated herein by reference. To the extent you have submitted job descriptions, such job descriptions are also incorporated herein by reference. 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. 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,” as set forth at 65 Pa.C.S. § 1102, and the related regulatory criteria, as set forth at 51 Pa. Code § 11.1, 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, Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Commw. Ct. 1984); Eiben, Opinion 04-002;Shienvold, Opinion 04- 001; Shearer, Opinion 03-011. The Commonwealth Court of Pennsylvania has specifically considered and approved the State Ethics 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 State Ethics Commission has determined that Income Maintenance Caseworkers under job code 44720 are public employees subject to the Ethics Act and Regulations of the State Ethics Commission, and in particular, the requirements for filing Statements of Financial Interests pursuant to the Ethics Act (see, Ludwig, Opinion 09- 001; cf., Metrick, Order 1037; Makar, Order 1383). The Commonwealth Court of Pennsylvania has specifically reviewed the status of Income Maintenance Caseworkers under the Ethics Act and has affirmed the Commission’s determination in Ludwig, supra. Quaglia v. State Ethics Commission, No. 555 C.D. 2009 (Pa. Commw. Ct. January 5, 2010). Therefore, as an Income Maintenance Caseworker with DPW, each of you is a “public employee” subject to the Ethics Act, and each of you is required to file Statements of Financial Interests pursuant to the Ethics Act. The job classification specifications under job code 44720 are sufficient to establish your status as public employees subject to the Ethics Act. Your individual job descriptions may also include additional duties/authority establishing such status. Conclusion: As an Income Maintenance Caseworker with the Pennsylvania Department of Public Welfare, each of you is a “public employee” subject to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., and the Income Maintenance Caseworkers, 10-528 January 20, 2010 Page 3 Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq. 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. 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