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Home My WebLink About10-002 Bilhart-Keiser 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 10-002 Cathy L. Baker Cynthia A. Becker Lisa M. Brilhart-Keiser Jerri L. Hall Valerie P. Huber Michael A. Klunk 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 Peter B. Hrycenko Lehigh County Assistance Office Pennsylvania Department of Public Welfare th 101 S. 7 Street Allentown, PA 18101 Dear Income Maintenance Caseworkers: This Opinion is issued in response to the appeals of Advice of Counsel 09-519, Advice of Counsel 09-523, Advice of Counsel 09-524, and Advice of Counsel 10-531 (hereinafter collectively referred to as “the Advices of Counsel”). I.ISSUE: Whether individuals employed by the Pennsylvania Department of Public Welfare Income Maintenance Caseworkers, 10-002 April 9, 2010 Page 2 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. II.FACTUAL BASIS FOR DETERMINATION: In 2009 this Commission received Financial Disclosure Appeal forms from all of you, which forms were treated as requests for advice from this Commission. Each of you sought a determination as to whether, as an Income Maintenance Caseworker with the Pennsylvania Department of Public Welfare (“DPW”), you are a public employee 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. The Advices of Counsel were issued between March 13, 2009, and January 20, 2010. The Advices of Counsel determined that in your capacities as Income Maintenance Caseworkers with DPW under job code 44720, 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 Ethics Act. Each of you submitted a Financial Disclosure Appeal Form, a letter, or other document that is being treated as an appeal of the respective Advice of Counsel issued to you. On your various appeal documents, you contend, in pertinent part, that your job duties are performed under direct supervision and are ministerial in nature because they are performed in accordance with DPW regulations and procedures. The job classification specifications for your position (job code 44720) are incorporated herein by reference. To the extent you have submitted position descriptions, such position descriptions are also incorporated herein by reference. 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 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. As noted in the Advices 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,” 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 this Commission’s objective test Income Maintenance Caseworkers, 10-002 April 9, 2010 Page 3 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 Ludwig, Opinion 09-001, this Commission determined that Income Maintenance Caseworkers under job code 44720 are public employees subject to the Ethics Act and Regulations of this Commission, and in particular, the requirements for filing Statements of Financial Interests pursuant to the Ethics Act. Cf., Metrick, Order 1037; Makar, Order 1383; Debias, Order 1539. 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 our determination in Ludwig, supra. See, Quaglia v. State Ethics Commission, No. 555 C.D. 2009 (Pa. Commw. Ct. January 5, 2010). Therefore, as Income Maintenance Caseworkers with DPW, you are “public employees” subject to the Ethics Act, and you are 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. We reject the assertion that the duties of an Income Maintenance Caseworker 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.” See, 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 Caseworkers establish your status as “public employees” subject to the Ethics Act. The objective sources defining your position establish that your duties are performed under general supervision and without onsite supervision when you are working in the field and that your work is only subject to selective review by your supervisors. Based upon the above analysis, we deny the appeals and affirm Advices of Counsel 09-519, 09-523, 09-524, and 10-531. Lastly, this matter has only been addressed under the Ethics Act. IV.CONCLUSION: In your capacities with the Pennsylvania Department of Public Welfare as Income Maintenance Caseworkers under job code 44720, 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. The appeals are denied. Advices of Counsel 09-519, 09-523, 09-524, and 10-531 are 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. Income Maintenance Caseworkers, 10-002 April 9, 2010 Page 4 Finally, a party may request the Commission to reconsider its Opinion. The 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