The URL can be used to link to this page

Home My WebLink About10-003 Beck 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: 6/22/10 DATE MAILED: 7/9/10 10-003 Elaine M. Beck Joyce A. Orczyk Gregory J. Patrick Edward Pelczar Gretchen S. Ross Ralph M. Santoliquido Beverly M. Tate Westmoreland County Assistance Office Pennsylvania Department Of Public Welfare 909 Industrial Boulevard New Kensington, PA 15068 Dear Income Maintenance Caseworkers: This Opinion is issued in response to the appeals of Advice of Counsel 10-537. I.ISSUE: Whether individuals employed by the Pennsylvania Department of Public Welfare 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 Income Maintenance Caseworkers, 10-003 July 9, 2010 Page 2 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 filing Statements of Financial Interests pursuant to the Ethics Act. Advice of Counsel 10-537 was issued on January 20, 2010. The Advice 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. By faxed correspondence received February 17, 2010, each of you appealed Advice of Counsel 10-537. In your correspondence, you contend that the requirement to file publicly available Statements of Financial Interests constitutes a change in the conditions of your employment and presents an unacceptable risk of misuse of your personal information as well as a violation of your privacy. 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 May 24, 2010, each of you was notified of the date, time and location of the public meeting at which your appeal would be considered. On June 10, 2010, this Commission received your Letter Brief dated June 7, 2010, in which you elaborated upon your previously-raised arguments that the requirement to file publicly available Statements of Financial Interests constitutes a change in the conditions of your employment and presents an unacceptable risk of misuse of personal information-- such as addresses--as well as a violation of your privacy. You further expressed your belief that it was not originally intended that Income Maintenance Caseworkers would be subject to the financial disclosure requirements of the Ethics Act. 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 Advice of Counsel 10-537, 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 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 Income Maintenance Caseworkers, 10-003 July 9, 2010 Page 3 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, 986 A.2d 974 (Pa. Cmwlth. 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. The assertion that the financial disclosure requirements of the Ethics Act violate a right of privacy was considered and rejected by the Pennsylvania Supreme Court in Snider v. Thornburgh, 496 Pa. 159, 436 A.2d 593 (1981). A review of the Statement of Financial Interests disclosure requirements reflects that sensitive information such as a Social Security number or bank account number is not required. Shearer, Opinion 03-011. As to the completion of the filer’s address, this Commission has held that the filer has the option of listing an office/work address, such as the address of his/her governmental body, rather than a personal address. See, Shearer, supra; Bodo, Opinion 96-007. Based upon the above analysis, we deny the appeals and affirm Advice of Counsel 10-537. 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. Advice of Counsel 10-537 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 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, Income Maintenance Caseworkers, 10-003 July 9, 2010 Page 4 Louis W. Fryman Chair