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HomeMy WebLinkAbout10-545 Haberman ADVICE OF COUNSEL February 9, 2010 William P. Haberman Allegheny County Assistance Office Pennsylvania Department of Public Welfare 400 Stanwix Street Suite 600 Pittsburgh, PA 15222-1338 10-545 Dear Mr. Haberman: This responds to your Financial Interest Disclosure Appeal, which will be treated as a request for advice from the Pennsylvania State Ethics Commission. Issue: Whether an individual employed by the Pennsylvania Department of Public Welfare as an Income Maintenance Casework Supervisor under job code 44730 would be considered a “public employee” 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 capacity as an Income Maintenance Casework Supervisor for the Pennsylvania Department of Public Welfare (“DPW”) under job code 44730, you are a “public employee” 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”). You have submitted a copy of your official DPW position description, which document is 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 your official DPW position description, you are responsible for supervising, controlling and monitoring the work of a group of Income Maintenance Caseworkers (“IMCWs”) engaged in determining eligibility for various medical assistance programs and the food stamp program. Your duties and responsibilities include the following: ? Instructing and monitoring IMCWs in the application of program regulations, procedures and caseload management; Haberman, 10-545 February 9, 2010 Page 2 ? Prioritizing, assigning and coordinating unit functions to meet the agency’s objectives; ? Reviewing case records and ongoing work of the unit to ensure correct application of policies and procedures and timely eligibility decisions; ? Evaluating performances of IMCWs by preparing annual evaluations in accordance with standards and objectives, reviewing and discussing evaluations with IMCWs, identifying deviations from expected performance and taking corrective action; ? Providing assistance in investigations for fact-findings and pre-disciplinary actions; ? Monitoring and complying with regulations regarding time and attendance, leave usage and alternate work schedule; ? Reviewing Hurly stipulations and signing final document; ? Conducting client grievance investigations according to procedures and documenting the process and results; ? Identifying corrective actions; ? Reviewing TPL reimbursement referrals and possible overpayments and forwarding prepared documents to the appropriate agency; ? Reviewing case records and ongoing work of the unit regarding the eligibility for Medicaid to cover the cost of Nursing Home Care, PDA Waivers, Home and Community Based Waivers, Bridge Program, Food Stamps and LIHEAP; ? Assisting in the interpretation of financial and legal documents in relationship to their effect on eligibility; and ? Conducting agency conferences on appeal requests, assisting worker in the appeal process, and attending appeal hearings as required. Position Description, at 1-2. 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; Haberman, 10-545 February 9, 2010 Page 3 ? 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. 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 form, you state, inter alia, that you have on-site supervision and that you do not fall within the Ethics Act’s definition of the term “public employee” because you closely follow DPW regulations and determine eligibility by applying DPW policy and procedure. 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; Haberman, 10-545 February 9, 2010 Page 4 (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. (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. (I) 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: Haberman, 10-545 February 9, 2010 Page 5 (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. (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 person’s 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. Haberman, 10-545 February 9, 2010 Page 6 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, Phillips 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 the 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 capacity as an Income Maintenance Casework Supervisor with DPW under job code 44730, you are a "public employee" 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 staff performance; and (2) make recommendations regarding personnel actions. This authority in and of itself is sufficient to establish your status as a public employee 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) identify deviations from expected performance of IMCWs and take corrective action; and (5) conduct client grievance investigations according to procedures, would provide additional support for the conclusion that you are a “public employee” subject to the provisions of the Ethics Act. The foregoing activities would also meet the criteria for determining your status as a public employee under the Regulations of the State Ethics Commission, specifically at 51 Pa. Code § 11.1, “public employee,” subparagraphs (i) and (ii). Haberman, 10-545 February 9, 2010 Page 7 Therefore, you are advised that in your capacity as an Income Maintenance Casework Supervisor for DPW under job code 44730, you are a “public employee” subject to the provisions of the Ethics Act and the Regulations of the Pennsylvania State Ethics Commission, and in particular, the requirements for filing SFIs pursuant to the Ethics Act. Conclusion: In your capacity as an Income Maintenance Casework Supervisor employed by the Pennsylvania Department of Public Welfare under job code 44730, you are a “public employee” 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, 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