HomeMy WebLinkAbout85-568 CwynarMr. Frank Cwynar
1073 -A Huron Drive
Harrisburg, PA 17111
Mailing Address
State Ethics Commission
308 Finance Building
P. 0. Box 11470
Harrisburg, Pa. 17108-1470
August 8, 1985
ADVICE OF COUNSEL
85 - 568
Re: Pharmacist I, Department of Public Welfare, Public Employee
Dear Mr. Cwynar:
This responds to your appeal letter of July 24, 1985, which has been
processed as a request for advice from the State Ethics Commission.
Issue: You ask whether, in your capacity as a Pharmacist I with the the
Department, you are to be considered a "public employee" as that term is
defined in the Ethics Act, and therefore, whether you are required to file a
Statement of Financial Interests pursuant to the Ethics Act.
Facts: You indicate that you do not believe that your activities and
functions fall within the purview of the definition of "public employee" as
that phrase is defined in the State Ethics Act and the regulations of this
Commission. In order to review the question presented, we will briefly
outline the duties and responsibilities associated with your position, and as
contained in your job description and the classification specifications for
this position. Your duties and responsibilities, as set forth in these two
documents which are incorporated herein by reference, include the following
responsibilities and functions:
Providing consultation and direction to attorneys and other departmental
staff in providing information related to this area of the Medical Assistance
Program.
Attending and participating in evidentiary meetings with Division Chief,
Section Supervisor and Legal Counsel to discuss the provider case histories
and case strategy.
Preparing correspondence for providers, drug companies, licensing boards,
Medicaid Fraud Control Unit, and other state agencies to develop case files on
individual providers; making referrals on case information to other state
agencies when applicable.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. Frank Cwynar
August 8, 1985
Page 2
Assisting in communications with other involved state and federal
agencies to facilitate exchange of information and coordination of
activities.
Assisting the consultants in review of medical records and other
pertinent documents to establish case files when necessary. Referring case
information to other sections where applicable.
Assists in recommending corrective action in cases where the provider is
out of compliance with existing standards, policies, rules, and regulations;
prepared documentation as a basis for the restriction or removal of clients
and providers from particiapation in the Medical Assistance Program.
Attending and testifying as a witness in cases involving outpatient
providers at hearings and in court.
Collaborates with drug companies on the testing of drug samples secured
from recipients to determine content and brand.
Completes reports and recommends appropriate action to be taken for the
proper disposition of cases under review.
Requests new and updated computer- generated reports under MAMIS for a
more proficient operation and information base.
Assists in developing a cost - containment and control program for drugs
and pharmaceuticals.
Prepares reports delineating reasons for review, methodology, findings,
recomendations, violations of MA regulations and other pertinent data for
Preliminary Reviews, Full -Scale Evaluations, and termination notices.
Participates in the development and application of standards, policies
and procedures pertaining to the provision of outpatient services under the
Medical Assistance Program.
Examines and analyzes claims, cost data, payment records, recipient
profiles and other documentation to determine the advisability of conducting
on -site reviews in areas of suspected misutilization, abuse or fraud.
Assists in contacting county assistance offices, recipients, physicians,
and others to secure information in preparation for on -site reviews; documents
and records findings; prepares reports and cases for possible corrective or
legal action and testifies at hearings.
Mr. Frank Cwynar
August 8, 1985
Page 3
Travels and participates with professional teams on on -site reviews for
the purpose of examining records and administrative procedures of providers of
pharmaceutical services, medical suppliers, dentists, physicians and
podi atrists.
Specifically, it must be noted that you do not serve as a pharmacist in a
state hospital or in a dispensary facility. c.f. Magee; 83 -613.
Discussion: As set forth above, the question to be answered here is clear.
Specifically, are you in your capacity as a Pharmacist I, serving with the
Utilization Review Bureau of the Department, to be considered a "public
employee" as those terms are defined in the State Ethics Act and the
regulations of the Commission as follows:
Section 2. 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
minimus nature on the interests of any person.
"Public employee" shall not include individuals who are
employed by the State or any political subdivision thereof
in teaching as distinguished from administrative duties.
65 P.S. 402.
The regulations of the Commission similarly define public employee as
stated above and also provide that the term includes any person:
(B) who meets the criteria of either subclause
(I) or (II):
(I) The individual is:
Mr. Frank Cwynar
August 8, 1985
Page 4
( -a -) a person who normally
performs his responsibility in the field
without on -site supervision;
( -b -) the immediate supervisor of a
person who normally performs his
responsibility in the field without
on -site supervision; or
( -c -) the supervisor of any highest
level field office.
(II) The individual is a person:
( -a -) who:
( -1 -) has the authority to
make final decisions;
( -2 -) has the authority to
forward or stop recommendations
from being sent to the person or
body with the authority to make
final decisions;
( -3 -) prepares or
supervises the preparation of
final recommendations; or
( -4 -) makes the final
technical recommendations; and
( -b -) whose recommendations or
actions:
( -1 -) are an inherent and
recurring part of his position;
and
( -2 -) affect organizations
other than his own organization.
(iii) Persons in the positions listed below are
generally considered public employees.
Mr. Frank Cwynar
August 8, 1985
Page 5
(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 before the public.
(D) Solicitors, engineers, managers, and
secretary- treasurers acting as managers, police
chiefs, chief clerks, chief purchasing agents,
grant and contract managers, housing and building
inspectors, 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 business managers and principals.
(iv) Persons in the positions listed below are
generally not considered public employes.
(A) City clerks, other clerical staff, road
masters, secretaries, police officers, welfare case
workers, maintenance workers, construction workers,
detectives, 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 1.1.
We must review the question you present under these provisions of the
statute and the regulations of the Commission in light of your duties and
obligations as described in your request for advice and /or appeal, the
classification specifications, and the job description under which you
Mr. Frank Cwynar
August 8, 1985
Page 6
operate. Our inquiry necessarily focuses on the job itself and not on the
individual incumbent in the position, the variable functions of the position,
or the manner in which a particular individual occupying a position may carry
out those functions. See McClure, 83 -001; Philli s, 82 -008, affirmed on
appeal, Pa. Cmwlth. , 470 A.2d 659 ( and Mummau v. Ranck, 531
Fed. Supp. 402 (E.D. Pa. 1982).
Also, in reviewing your question, the Commonwealth Court in its ruling in
Phillips, supra, at page 661, directs us to construe coverage of the Ethics
Act broadly, rather than narrowly, and conversely, directs that exclusions
from the Ethics Act should be narrowly construed. Based upon this directive
and reviewing the definition of "public employee" in the statute and the
regulations and opinions of this Commission, in light of your job functions
and the information available to us, we are led to the conclusion that while
you serve in this capacity, you are a "public employee" subject to the
financial reporting and disclosure requirements of the State Ethics Act.
Further detail on our analysis follows.
It is clear that in your capacity as a Pharmacist I, you have the ability
to recommend official action with respect to subparagraph 4 and 5 within the
definition of "public employee" as set forth in the Ethics Act, 65 P.S. 402.
Specifically, you have the authority to conduct on -site inspections regarding
suspected medical assistance misutilization, to participate in the development
of standards policies and procedures under the medicaide assistance program.
Additionally, you make referrals on case information to other agencies, assist
in recommending corrective action where necessary and also recommend
appropriate action for cases under review. See Dissinger, 82 -585. These
activities fall within the definition of public employee as contained in the
regulations of the Commission 51 Pa. Code §1.1 (B)(I)(a). Under these
circumstances and given your duties and responsibilities as outlined above, we
must conclude that you are a "public employee" as that term is defined in the
State Ethics Act.
Conclusion: Based upon the above discussion, we conclude that you are to be
considered a "public employee" in your capacity as a Pharmacist I with the
Utilization Review Bureau of the Department of Public Welfare. Accordingly,
you must file a Statement of Financial Interests for each year in which you
hold the position outlined above and for the year following your termination
of this service.
If you have not already done so, a Statement of Finanical Interests must
be filed within 15 days of this Advice. This Statement of Financial Interests
would report information of the prior calendar year. Please file the original
of such a Statement with this Commission to insure compliance with this
Advice, provide the yellow copy to your Personnel Office and retain the green
copy for your records.
Mr. Frank Cwynar
August 8, 1985
Page 7
Pursuant to Section 7(9)(ii), this 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, providing the
requestor 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 request that the full Commission review this Advice.
A personal appearance before the full Commission will be scheduled and a
formal Opinion from the Commission will be issued. Any such appeal must be
made, in writing, to the Commission within 15 days of service of this Advice
pursuant to 51 Pa. Code 2.12.
JJC /sfb
Enclosure
Sinc
John J •ntino
Gene al Counsel