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HomeMy WebLinkAbout85-578 HochMs. G. J. Hoch 625 South Front Street Harrisburg, PA 17104 State Ethics Commission 308 Finance Building P. 0. Box 11470 Harrisburg, Pa. 17108 -1470 August 29, 1985 ADVICE OF COUNSEL 85 -578 Re: Medical Assistance Policy Specialist, Department of Public Welfare, Public Employee Dear Ms. Hock: This responds to your letter of July 26, 1985, in which you requested advice from the State Ethics Commission. Issue: You ask whether, in your capacity as a Medical Assistance Policy Specialist with the Department of Public Welfare, hereinafter, 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 question whether 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 as contained in your job description and the classification specifications for this position. Your duties and responsibilities, as set forth in these two documents, are incorporated herein by reference. An employee in this position: Develops and writes procedures, standards, policies and regulations pertinent to medical assistance. Reviews and evaluates the implementation and interpretation of policy to ensure statewide consistency and conformity with departmental objectives. Conducts research, collects and analyzes data used as the basis for writing policies and procedures relative to medical assistance. Ms. G.J. Hoch August 29, 1985 Page 2 Evaluates existing policies, procedures and standards relative to medical assistance for effectiveness and conformity with governing legislation. Confers with other medical assistance program staff members regarding the purpose and content of policies being written and the probable effectiveness of proposed forms and methods to be used in implementing such policies. Attends policy committee and administrative staff meetings and assists in the technical formulation of policies and standards relative to medical assistance. Consults with medical assistance program staff members to coordinate and regulate where areas of mutual interest exist. Prepares final draft of material after it has been reviewed by medical assistance program staff members and administrative supervisors. Provides advisory services to medical assistance program representatives on the development, interpretation and application of policies, standards and procedures. Prepares reports and correspondence on policies, standards and procedures relating to medical assistance. Your classification specification also indicates that: This position involves professional staff work of a specialized nature in developing statewide policy in the field of medical assistance. An employee in this class develops and writes medical assistance policies and procedures, consistent with welfare legislation, Federal requirements, and departmental objectives. Employees collect, compile, and analyze data used in drafting medical assistance policies, standards, regulations, and operating procedures. Work includes preparing draft material, providing information, and interpreting specific policies and procedures to other bureaus and divisions of the Department. The employee is given instructions relative to medical assistance program objectives and is expected to use initiative and judgment in performing research and dveloping and writing material. Work is reviewed for conformity to program objectives, laws and departmental standards through conferences, reports, and evaluation of results. Discussion: As set forth above, the question to be answered here is clear. Specifically, are you, in your capacity as a Medical Assistance Policy Specialist serving with the Department of Public Welfare to be considered a "public employee." The State Ethics Act defines that term as follows: Ms. G.J. Hoch August 29, 1985 Page 3 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 subsidi es; (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 State Ethics Commission similarly define the term public employee as above and also set forth that the term includes any individual: (B) who meets the criteria of either subclause (I) or (II): • (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; G.J. Hoch August 29, 1985 Page 4 ( -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. (A) Executive and special directors or assistants reporting directly to the agency head or governing body. (8) 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. , Ms. G.J. Hoch August 29, 1985 Page 5 (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 di rectors. (8) 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 the classification specifications, and the job description under which you 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; Phillips, 82 -008, affirmed on appeal, Pa. Cmwlth. , 410 A.2d 659 (1984); 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 Medical Assistance Policy Specialist, 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, your role in developing, formulating and implementing policy procedures, standards and regulations must be considered to be "regulating" within the Act. Additionally, these policies and procedures as they involve medical assistance have an economic impact of a greater than de minimus nature on involved individuals. These activities fall Ms. G.J. Hoch August 29, 1985 Page 6 within the definition of public employee as contained in the regulations of the Commission 51 Pa. Code 1.1 et. seq. 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 Medical Assistance Policy Specialist with 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. 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 ccnduct 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. 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 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 This letter is a public record and will be made available as such. Sinc John J. •ntino Gene. Counsel