HomeMy WebLinkAbout10-001 Monforte
OPINION OF THE COMMISSION
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Raquel K. Bergen
Nicholas A. Colafella
Mark Volk
DATE DECIDED: 3/25/10
DATE MAILED: 4/9/10
10-001
Wilhelmina 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:
This Opinion is issued in response to your Financial Disclosure Appeal forms dated
April 14, 2009, and April 7, 2009, respectively, which collectively are being treated as an
appeal of Heckman/Monforte, Advice of Counsel 09-522, issued on March 19, 2009.
I.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.
II.FACTUAL BASIS FOR DETERMINATION:
You have submitted Financial Disclosure Appeal forms which collectively are being
treated as an appeal of Heckman/Monforte, Advice of Counsel 09-522, issued on March
19, 2009.
Your initial advisory requests presented facts that were summarized in the Advice of
Counsel as follows:
Heckman/Monforte, 10-001
April 9, 2010
Page 2
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 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;
Heckman/Monforte, 10-001
April 9, 2010
Page 3
?
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 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;
Heckman/Monforte, 10-001
April 9, 2010
Page 4
?
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.
Heckman/Monforte, Advice of Counsel 09-522, at 1-3.
Advice of Counsel 09-522 determined 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 this Commission, and in
particular, the requirements for filing Statements of Financial Interests pursuant to the
Heckman/Monforte, 10-001
April 9, 2010
Page 5
Ethics Act. The Advice determined that you have the ability to take or recommend official
action of a non-ministerial nature that would satisfy subparagraph (5) within the statutory
definition of “public employee” (pertaining to “any other activity where the official action
has an economic impact of greater than a de minimis nature on the interests of any
person” (65 Pa.C.S. § 1102)), as well as the criteria set forth in this Commission’s
Regulations for determining status as a public employee, specifically at 51 Pa. Code §
11.1, “public employee,” subparagraphs (i) and (ii). The Advice of Counsel specifically
noted the authority of an Income Maintenance Casework Supervisor to: (1) evaluate staff
performance; and (2) make recommendations regarding personnel actions. The Advice of
Counsel concluded 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. The Advice noted that 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.
On your Financial Disclosure Appeal forms, you expressed your view that you are
not “public employees” as that term is defined in the Ethics Act because your job duties are
performed under direct supervision. You contended that your job duties are ministerial in
nature because they are performed in accordance with DPW regulations and procedures.
On April 27, 2009, and April 28, 2009, respectively, this Commission received your
letters requesting the postponement of our consideration of your appeal of Advice of
Counsel 09-522 pending the outcome of litigation before the Commonwealth Court of
Pennsylvania involving a recent Opinion of this Commission, specifically, Ludwig, Opinion
09-001, as to the status of Income Maintenance Caseworkers under the Ethics Act and the
applicability of the SFI filing requirements to them. By letters dated April 28, 2009, you
were notified that your request for postponement had been granted.
In a ruling issued January 5, 2010, the Commonwealth Court of Pennsylvania
specifically reviewed the status of Income Maintenance Caseworkers under the Ethics Act
and affirmed this Commission’s determination in Ludwig, supra. Quaglia v. State Ethics
Commission, No. 555 C.D. 2009 (Pa. Commw. Ct. January 5, 2010).
By letter dated February 8, 2010, each of you was notified of the date, time and
location of the public meeting at which your appeal would be considered.
III.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, this 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
Heckman/Monforte, 10-001
April 9, 2010
Page 6
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.
Our review of this matter is de novo (Clarke, Opinion 04-012; Spear, Opinion 04-
011): “De novo review entails, as the term suggests, full consideration of the case anew.
The reviewing body is in effect substituted for the prior decision maker and redecides the
case.” D’Arciprete v. D’Arciprete, 323 Pa. Super. 430, 470 A.2d 995 (1984) (citations
omitted). See also, Hayes v. Donohue Designer Kitchen, Inc., 2003 Pa. Super. 84, 818
A.2d 1287 (2003); Commonwealth v. Krut, 311 Pa. Super. 64, 457 A.2d 114 (1983); In re
Audit of School District, 354 Pa. 232, 47 A.2d 292 (1946).
We shall begin our analysis by noting the established principle that the Ethics Act,
as remedial legislation, is to be liberally construed. Maunus v. State Ethics Commission,
518 Pa. 592, 544 A.2d 1324 (1988).
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 this 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, 10-001
April 9, 2010
Page 7
(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:
(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.
Heckman/Monforte, 10-001
April 9, 2010
Page 8
(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.
As noted in the Advice of Counsel, 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 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.
In applying the objective test in the instant matter, we conclude 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 this
Commission.
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; 51 Pa. Code § 11.1(“public employee”); see also, Reese/Gilliland, Opinion 05-005.
The objective sources defining your position--the official position descriptions and
the job classification specifications under job code 44730--establish that as Income
Maintenance Casework Supervisors with DPW, you have the authority, inter alia, to do the
following:
(Per Position Descriptions)
?
Supervise assigned staff engaged in determining and redetermining client
eligibility for various income maintenance program services and benefits
and/or refer individuals and families to appropriate community agencies and
resources;
Heckman/Monforte, 10-001
April 9, 2010
Page 9
?
Monitor caseload management and the accuracy, completeness and
timeliness of decisions;
?
Evaluate caseworker performance by completing the Employee
Performance Review at least yearly and Progress Reviews as needed;
?
Make recommendations regarding personnel actions;
?
Investigate client complaints;
?
Monitor the time and attendance of staff and approve or deny requested
leave;
?
Handle grievances;
?
Administer discipline, when needed, to improve work performance; and
?
Participate in agency planning and the development of agency procedures.
(Per Job Classification Specifications)
?
Supervise and/or provide formal training for staff engaged in
determining/redetermining client eligibility for income maintenance program
services and benefits;
?
Supervise 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;
?
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;
?
Evaluate staff progress in training programs and the application of
appropriate governing policies and regulations in their work performance,
and make recommendations regarding personnel actions affecting employee
retention, termination or extension in training status; and
?
Evaluate staff performance and make recommendations regarding personnel
actions.
It is noted that as Income Maintenance Casework Supervisors with DPW, you are
responsible for supervising individuals, specifically Income Maintenance Caseworkers
under job code 44720, who are “public employees” subject to the Ethics Act and the
Regulations of this Commission. See, Quaglia, supra.
Based upon the above, we find that your authority includes responsibility for taking
or recommending official action of a nonministerial nature with regard to category (5) of the
Ethics Act’s definition of “public employee,” specifically, “any other activity where the
official action has an economic impact of greater than a de minimis nature on the interests
of any person.” 65 Pa.C.S. § 1102. In particular, there is no doubt 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
Heckman/Monforte, 10-001
April 9, 2010
Page 10
affected staff as well as the interests of taxpayers with regard to the expenditure of public
funds. Cf., Goddard, Opinion 07-019.
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.
We reject your assertion that the duties of an Income Maintenance Casework
Supervisor are ministerial in nature. The fact that the duties of the aforesaid position are
performed in accordance with DPW regulations and procedures does not render such
duties “ministerial.” Cf., Quaglia, supra.
The assertion that your duties are performed under direct supervision does not alter
our conclusion that your duties and authority as Income Maintenance Casework
Supervisors establish your status as “public employees” subject to the Ethics Act. The
objective sources defining your position establish that you work independently under the
direction of your supervisors.
Having determined that you are public employees subject to the Ethics Act and the
Regulations of this Commission, it necessarily follows that you are required to file
Statements of Financial Interests pursuant to the Ethics Act.
Based upon the above analysis, we deny the appeal and affirm Advice of Counsel
09-522.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
IV.CONCLUSION:
In your capacities with the Pennsylvania Department of Public Welfare as Income
Maintenance Casework Supervisors under job code 44730, you 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, 51 Pa. Code
§ 11.1 et seq. You would be required to file Statements of Financial Interests pursuant to
the Ethics Act. Advice of Counsel 09-522 is affirmed.
The propriety of the proposed conduct has only been addressed under the Ethics
Act.
Pursuant to Section 1107(10) of the Ethics Act, the person who acts in good faith on
this Opinion issued to him shall not be subject to criminal or civil penalties for so acting
provided the material facts are as stated in the request.
This letter is a public record and will be made available as such.
Finally, a party may request the Commission to reconsider its Opinion. The
Heckman/Monforte, 10-001
April 9, 2010
Page 11
reconsideration request must be received at this Commission within thirty days of the
mailing date of this Opinion. The party requesting reconsideration must include a detailed
explanation of the reasons as to why reconsideration should be granted in conformity with
51 Pa. Code § 21.29(b).
By the Commission,
Louis W. Fryman
Chair