The opinion of the court was delivered by: President Judge Leadbetter
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge, HONORABLE KEITH B. QUIGLEY, Senior Judge.
The Pennsylvania Social Services Union, Local 688 of the Service Employees International Union (Union), and Eugene Quaglia (collectively, Petitioners) petition for review of the opinion issued by the State Ethics Commission (Commission) affirming the advice of the Commission's chief counsel.*fn1 The Commission determined that individuals employed by the Department of Public Welfare (DPW) as income maintenance caseworkers (caseworkers) are subject to the Public Official and Employee Ethics Act (Ethics Act), 65 Pa. C.S. §§ 1101 - 1113, and the regulations thereunder, requiring "public employees" to, inter alia, file financial interest statements. Petitioners argue that the Commission misconstrued the definition of "public employee" in the Ethics Act and the regulations and that the Commission's interpretation is inconsistent with the previous advice of the former chief counsel and the provisions of the former regulations.
In a letter dated September 22, 2008, James A. Honchar, the Deputy Secretary for Human Resources and Management at the Governor's Office of Administration, requested the Commission's opinion as to whether DPW's caseworkers are required to file financial interest statements pursuant to the Ethics Act.*fn2 Section 1104(a) of the Ethics Act, 65 Pa. C.S. § 1104(a), provides in relevant part:
Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. [Emphasis added.]
Section 1102 of the Ethics Act, as amended, 65 Pa. C.S. § 1102, defines a "public employee" as:
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;
(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. [Emphasis added.]
A "nonministerial action" is "[a]n action in which the person exercises his own judgment as to the desirability of the action taken." Id. (emphasis added).
In requesting the Commission's opinion, Honchar noted that in 2005, the Commission determined in In re Makar that a caseworker was a public employee required to file financial interest statements. Honchar also noted that in the 1979 advice of counsel issued in In re Preloh, the Commission's former chief counsel reached a ...