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HomeMy WebLinkAbout09-555 KirkpatrickScott Kirkpatrick 30 White Birch Lane Mechanicsburg, PA 17050 ADVICE OF COUNSEL May 22, 2009 09 -555 Dear Mr. Kirkpatrick: This responds to your letters dated March 24, 2009, and April 18, 2009, by which you requested advice from the Pennsylvania State Ethics Commission. Issue: Whether, as a Pharmacist with the Pennsylvania Department of Public Welfare under job code 32710, you would be considered a "public employee" subject to the Public Official and Employee Ethics Act (the "Ethics Act "), 65 Pa.C.S. § 1101 et seq., and the Regulations of the 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 a Pharmacist with the Pennsylvania Department of Public Welfare ( "DPW ") under job code 32710, you are 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 whether you are required to file Statements of Financial Interests. You describe yourself as a "dispensing pharmacist." You have submitted a copy of a letter dated May 15, 2000, from the Director of the DPW Bureau of Personnel, which letter indicated that as a dispensing pharmacist, you did not need to file Statements of Financial Interests pursuant to the Ethics Act or Governor's Code of Conduct. You have submitted copies of your official DPW position description for your position at the Wernersville State Hospital, which you and the Chief Pharmacist acknowledged September 28, 2007, and the job classification specifications for your position (job code 32710), both of which documents are incorporated herein by reference. Per your official DPW position description, your duties and responsibilities include the following: • Filling medication orders and prescriptions and labeling containers in a manner described in the Pharmacy Procedure Manual for hospital use; Kirkpatrick, 09 -555 May 22, 2009 Page 2 • Checking all orders for adverse reactions, duplications, incompatibilities and allergies, using the consumer profile in the computer; • Reviewing consumer files for completeness and accuracy of orders using accreditation agency guidelines; • Consulting medical staff regarding any concerns of a consumer's drug regimen and documenting same; • Checking drugs received in the Pharmacy against what was ordered and insuring that received drugs are in acceptable condition with proper dating and quantity; • Maintaining pharmacy - related inventory and associated paperwork; • Providing information on use, dosage, side effects, and safety of medications to patients and nursing and medical staff; • Assisting in the maintenance of departmental - related records; and • Attending meetings or serving on committees, as determined to be necessary by the Chief Pharmacist or Administration. Position Description, at 1 -2. Per the job classification specifications under job code 32710, the specific duties and authority of a Pharmacist include: • Compounding and dispensing physicians' prescriptions and manufacturers' pharmaceuticals; • Filling ward requisitions for narcotics, solutions and drug supplies; • Reviewing the medication records of patients and reporting potential adverse drug interactions; • Participating as a member of an inter - disciplinary team charged with developing a comprehensive treatment plan for each patient /resident at the facility; • Directing the work of pharmacy assistants and custodial or non - technical personnel; • Participating in the fiscal audit and processing of pharmaceutical invoices and making determinations about pharmaceutical cost accounting and volume procurement and dispensing in conjunction with the superintendent or business manager; • Taking periodic inventories of pharmaceutical supplies and preparing requisitions, records, and inventories of drugs, chemicals, antibiotics, biologicals, and other pharmaceutical preparations; • Maintaining meticulous records of the supply and dispensing of narcotics, depressant and stimulant drugs, and alcohol; • Conferring with administrative superiors and making recommendations regarding the purchase and control of new drugs and supplies; Kirkpatrick, 09 -555 May 22, 2009 Page 3 • Preparing and modifying the hospital formulary; • Keeping records, preparing reports, and maintaining files on all drugs purchased, manufactured, compounded, stored, and dispensed and maintaining separate records on specific drugs in conformity with state and federal laws; and • Participating, as appropriate, in clinical rounds, treatment team meetings, and conferences and assisting, as appropriate, in developing drug treatment plans which are consistent with the physician's orders for the patient /resident. Job Classification Specifications, at 1 -2. You state that you have been employed as a dispensing Pharmacist for DPW since you were hired almost ten years ago to work at Harrisburg State Hospital. Since Harrisburg State Hospital closed several years ago, you have worked at various state hospitals, and approximately two years ago, you were permanently assigned to Wernersville State Hospital. You state that although your work location has changed, your job duties have not changed. You state that you previously were not required to file Statements of Financial Interests, but you have been informed that you must now file Statements of Financial Interests because you changed work locations. You ask whether changing work locations constitutes a change in job position. 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. 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: Kirkpatrick, 09 -555 May 22, 2009 Page 4 (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. (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. (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, Kirkpatrick, 09 -555 May 22, 2009 Page 5 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. (C) School teachers and clerks of the schools. 51 Pa. Code § 11.1. In applying the above provisions to your inquiry, it is noted that a pharmacist whose authority is limited to that of a "dispensing pharmacist" is not considered a "public employee" subject to the Ethics Act. Griffith, Advice 92 -580. However, a pharmacist with other duties /authority may be considered a "public employee" subject to the Ethics Act depending upon the nature of such duties /authority. Cilia /Fray /Kelly /Ruschak, Advice 04 -547. See, e.q., Cwynar, Opinion 85 -023 (wherein the Commission determined that a Pharmacist in the Bureau of Utilization Review of DPW was required to file a Statement of Financial Interests where the Pharmacist was authorized to recommend and formulate policy and information relating to the Medical Assistance Program, recommend the removal of persons from the Program, and assist in developing a cost containment and control program for drugs and pharmaceuticals). See also, Bianca, Advice of Counsel 92 -581 (wherein it was determined that a former Pharmacist with Fairview State Hospital was required to file a Statement of Financial Interests where he had been authorized to make recommendations regarding the purchase and control of new drugs and supplies, assist in developing drug treatment plans, and perform the duties of the Acting Chief Pharmacist in his absence); and Laichak, Advice of Counsel, 98 -560 (wherein it was determined that a former Staff Pharmacist with DPW was required to file a Statement of Financial Interests where his job responsibilities had included contracting or procurement, making recommendations as to the purchase and control of new drugs and supplies, inspecting medications to ensure compliance with certain laws and regulations, and assisting in developing drug treatment plans). The job classification specifications under job code 32710 include authority to make recommendations regarding the purchase and control of new drugs and supplies and the authority to assist in developing drug treatment plans. See, Job Classification Specifications, at 2. As noted above, these particular duties have been cited in determinations that pharmacists who performed additional duties beyond those of a dispensing pharmacist were considered public employees subject to the Ethics Act. Kirkpatrick, 09 -555 May 22, 2009 Page 6 However, a pharmacist whose authority as to contracting or procurement would be limited to contracting for or purchasing drugs or supplies - -or recommending the purchase or use of drugs or supplies -- through master contracts or purchasing schedules already awarded would not be considered a public employee as a result of these particular duties. See, 51 Pa. Code § 11.1 (definition of "contracting or procurement "). Per your position description, you also have the authority to attend meetings or serve on committees, as determined to be necessary by the Chief Pharmacist or Administration. Position Description, at 2. Your Position Description does not indicate what types of meetings you might attend, what types of committees you might serve on, or what authority you might have in such roles. Based upon the submitted facts, you are advised that you would not be considered a "public employee" subject to the Ethics Act and therefore would not be required to file Statements of Financial Interests pursuant to the Ethics Act subject to the conditions that: (1) your authority to purchase or make recommendations as to purchases and to assist in developing drug treatment plans is limited to drugs and supplies on master contracts or purchasing schedules already awarded; and (2) your authority to attend meetings and serve on committees does not include authority to take or recommend official action of a nonministerial nature with regard to any of the activities within the Ethics Act's definition of the term "public employee" at 65 Pa.C.S. § 1102. In response to your specific question, you are advised that a change in a person's work location, without a change in job duties or authority, would not in and of itself change the person's status under the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: In your capacity as a Pharmacist with the Pennsylvania Department of Public Welfare under job code 32710, you would not be considered a "public employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act'), 65 Pa.C.S. § 1101 et seq. and therefore would not be required to file Statements of Financial Interests pursuant to the Ethics Act subject to the conditions that: (1) your authority to purchase or make recommendations as to purchases and to assist in developing drug treatment plans is limited to drugs and supplies on master contracts or purchasing schedules already awarded; and (2) your authority to attend meetings and serve on committees does not include authority to take or recommend official action of a nonministerial nature with regard to any of the activities within the Ethics Act's definition of the term "public employee' at 65 Pa.C.S. § 1102. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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 Kirkpatrick, 09 -555 May 22, 2009 Page 7 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