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HomeMy WebLinkAbout07-556 MakarIrene M. Makar P.O. Box 0139 Orangeville, PA 17859 Dear Ms. Makar: ADVICE OF COUNSEL July 10, 2007 07 -556 This responds to your letter dated May 31, 2007, and your faxed transmission received June 27, 2007, by which you requested advice from the State Ethics Commission. Issue: Whether as an Income Maintenance Caseworker with the Commonwealth of Pennsylvania Department of Public Welfare, you would be considered a "public employee' subject to the Public Official and Employee loyee Ethics Act ("Ethics Act'), 65 Pa.C.S. § 1101 et seq., and the Regulations of State Ethics Commission, and particularly, the requirements for filing Statements of Financial Interests. Facts: You seek a determination as to whether, in your capacity as an Income Maintenance Caseworker for the Commonwealth of Pennsylvania Department of Public Welfare ( "DPW "), Columbia County Board of Assistance, you would be considered 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 Statements you are required to file tatements of Financial Interests. A copy of your official position description has been obtained from DPW and is incorporated herein by reference. You have submitted a copy of the job classification specifications (job code 44720) for the position of Income Vlaintenance Caseworker, which is also incorporated herein by reference. Per your official DPW position description, your duties and responsibilities include the following: • Making independent decisions regarding the determination of eligibility for a variety of Income Maintenance programs, including but not limited to cash, food stamps, Medicaid, and "LIHEAP ; • Performing a variety of caseload management duties to ensure accurate and timely eligibility determinations for clients receiving and applying for TANF program benefits; • Conducting client eligibility interviews with recipients and applicants as appropriate; Makar, 07 -556 July 10, 2007 Page 2 • Completing appropriate referrals; • Ensuring that appropriate actions are taken on budget adjustments, client notices, "189Xs," newborn authorizations, and Hearing and Appeal activities; and • Reviewing eligibility for follow -up programs. Position description, at 1. Per the job classification specifications under job code 44720, an Income Maintenance Caseworker: • Interviews applicants to determine eligibility for financial assistance and related income maintenance programs such as, but not limited to, Cash Assistance, Medical Assistance, Food Stamps, Nursing Home Care, and Employment Referrals; • Assesses clients' social services and employment needs; • Evaluates special needs of clients; • Determines client eligibility for Income Maintenance Program services; • Determines eligibility for various categories of assistance based on factors such as income, personal property, real property, legally responsible relatives, and employment status; • Provides clients or their families with information on community resources for social and employment services and makes appropriate referrals for services; • Assists clients in locating employment through the Pennsylvania Employables Programs, monitors clients in the Community Work Experience Program, and imposes sanctions as necessary; • Authorizes grants which conform to agency requirements or makes referrals to other community resources; • Re- determines eligibility through periodic review of client situations; • Determines occurrence and circumstances of overpayments and refers information to the Office of Fraud and Abuse Investigation and Restitution for resolution; and • Represents one or more clients in the process of obtaining SSI benefits. Job classification specifications, at 1 -2. The job classification specifications for your position provide that "Responsibility for determination or redetermination action rests with the worker." Job classification specifications, at 1. It is noted that you have submitted a completed Statement of Financial Interests for calendar year 2006 in conjunction with your advisory request letter. Nevertheless, you express your belief that you are not required to file Statements of Financial Interests pursuant to the Ethics Act. You state that your employer has advised you that you do not need to file the Statement of Financial Interests form. You further state that your Makar, 07 -556 July 10, 2007 Page 3 employer will not provide you with such a form. You additionally state that others you have contacted are not aware of a requirement for Income Maintenance Caseworkers to file the Statement of Financial Interests form. 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; (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. Makar, 07 -556 July 10, 2007 Page 4 (B) The individual is the immediate supervisor of a person who normally performs his responsibility in the field without onsite supervision. (C) office. (D) decisions. The individual is the supervisor of a highest level The individual has the authority to make final (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. (1) 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. Makar, 07 -556 July 10, 2007 Page 5 (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 relevant to your inquiry and 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 persons 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. 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, Philips 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. 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 Makar, 07 -556 July 10, 2007 Page 6 inherent and recurring part of their positions. See, e.q., Reese /Gilliland, Opinion 05- 005. Based upon the above judicial directives, the provisions of the Ethics Act, the State Ethics Commission Regulations, and the opinions of the State Ethics Commission, in light of your duties and responsibilities, the necessary conclusion is that, as an Income Maintenance Caseworker, you are a "public employee" subject to the financial reporting and disclosure requirements of the Ethics Act. See, e.q., Drost, Order 1415; Metrick, Order 1037; Makar, Order 1383; DeLuca, Advice 03 -607. In your capacity as an Income Maintenance Caseworker, you have the ability to take or recommend official action with respect to subparagraphs (2) and (5) within the definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. § 1102. Specifically, the following e duties set forth in the position description and job classification specifications would be sufficient to establish your status as a "public employee" subject to the Ethics Act: • Making independent decisions regarding the determination of eligibility for a variety of Income Maintenance programs; • Determining eligibility for financial assistance and related income maintenance programs such as Cash Assistance, Medical Assistance, Food Stamps, Nursing Home Care, and Employment Referrals; • Making appropriate referrals for services; • Assisting clients in locating employment through the Pennsylvania Employables Programs, monitoring clients in the Community Work Experience Program, and imposing sanctions as necessary; • Authorizing grants that conform to agency requirements; • Re- determining eligibility through periodic review of client situations; • Determining occurrence and circumstances of overpayments and referring information to the Office of Fraud and Abuse Investigation and Restitution for resolution; and • Representing one or more clients in the process of obtaining SSI benefits. 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). Therefore, you are advised that in your position as an Income Maintenance Caseworker with DPW, you are a "public employee" subject to the provisions of the Ethics Act. Accordingly, you must file a Statement of Financial Interests no later than May 1 of each year in which you hold the aforesaid position and the year following your termination of such service. 65 Pa.C.S. § 1104(a). Parenthetically, it is noted that since you are a public employee of the Commonwealth, the proper filing location for your Statement of Financial Interests is the State agency with which you are employed. See, 65 Pa.C.S. § 1104(a); 51 Pa. Code § 15.2(d). Conclusion: In your capacity as an Income Maintenance Caseworker with the Commonwealth of Pennsylvania Department of Public Welfare ( "DPW "), Columbia Makar, 07 -556 July 10, 2007 Page 7 County Board of Assistance, you are a "public employee" subject to the Public Official and Employee Ethics Act and the Regulations of the State Ethics Commission. Accordingly, you must file a Statement of Financial Interests each year in which you hold the aforesaid position and the year following your termination of such service. Pursuant to Section 1107(11), 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