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HomeMy WebLinkAbout89-564 RuhlmanMs. Jayne Ruhlman 411 West Second Street Oil City, PA 16301 Dear Ms. Ruhlman: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 25, 1989 89 -564 Re: Psychiatric Nurse IV, Department of Public Welfare, Public Employee, Statement of Financial Interests The State Ethics Commission received your financial disclosure appeal form on June 1, 1989, which will be treated as a request for an advice of counsel. Issue: You ask whether, in your capacity as a Psychiatric Nurse IV with the Department of Public Welfare, hereinafter, DPW, 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. The definition of your job description for Discipline Coordinator /Nursing Services provides as follows: "The Discipline Coordinator of Nursing Services is responsible for assuring that a full range of nursing services is provided and that these services are in compliance with all applicable Polk Center, DPW, ICF /MR, and ACMRDD policies, regulations, and standards. The Discipline Coordinator assists in the evaluation of discipline staff (LPN's, RN's, PNS's), consults with the RUMS and PNSs on their supervision of discipline staff, and directly evaluates and Ms. Jayne Ruhlman Page 2 supervises other staff as assigned. This position reports directly to the Director of Residential Services but also works closely and meets regularly with the Medical Director." The following duties and responsibilities are included in this position: Review and monitor work performance of the discipline staff; assist the RUMs and PNSs in establishing job descriptions, objectives, standards, and providing input as to clinical adequacy and quality; provide performance evaluations and supervise assigned staff; review the adequacy of rehabilitative programs and related services; coordinate the ongoing professional development of discipline staff; participate in staff training; maintain current manuals in compliance with the law and regulations; assist in the coordination of the Infection Control process; work with the Unit Director to recruit and select discipline staff; serve as consultant to the discipline staff; service a member of the Facility's Pre - Admission Evaluation Team; serve as Administrator on Duty; serve as Qualified Mental Retardation Professional; serve on various committees; perform PNS and Unit nursing duties as are required and perform such other duties and responsibilities as are assigned or required. You assert that your functional role does not fit within the definition of public employee because you do not exercise independent judgement in any activity which would have an economic impact of greater than a de minimus nature on the interest of any other person. You state that your role is consultive in nature and that you do not have the authority to make final decisions or the authority to forward or stop recommendations from being sent to persons with the authority to make final decisions. You state the foregoing is true as to nursing practice issues such as establishment of Policy /Procedure relating to self administration of medication programs and administration issues such as nursing staff complement. Although you note that the Psychiatric Nurse IV title is the highest nursing position at the center, you assert that there is no nursing department or no nursing budget per se. You assert that the functional role as defined in the aforementioned management directives lies elsewhere than with you and you conclude by asserting that a Bureau Director position is not equivalent to that of the Psychiatric Nurse IV position. Discussion: As set forth above, the question to be answered here is clear. Specifically, are you, in your capacity as a Psychiatric Nurse IV serving with the DPW, to be considered a "public employee." The State Ethics Act defines that term as follows: Ms. Jayne Ruhlman 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 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. 65 P.S. S402. "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. 5402. 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): (I) The individual is: ( -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: MA. Jayne Ruhlman Page 4 ( -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 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. (ii) 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. (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. (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 Ms. Jayne Ruhlman Page 5 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 employees. (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 clerk of the schools. 51 Pa. Code 51.1. 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 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, Opinion 83 -001; Phillips, Opinion 82 -008, affirmed on appeal, 79 Pa. Cmwlth. 491, 470 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, you are a "public employee" subject to Ms. Jayne Ruhlman Page 6 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 Psychiatric Nurse IV, you have the ability to recommend official action with respect to subparagraph 5 within the definition of "public employee" as set forth in the Ethics Act, 65 P.S. 5402. Specifically, you evaluate and supervise other staff as are assigned and also serve as a consultant and resource to the discipline staff and others. Such activities fall within the purview of subparagraph 4 of the definition. In addition, such activities fall within the criteria of the regulations under (B)(I)(a,b). 51 Pa. Code 1.1. 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 and Regulations of the Commission. Conclusion: Based upon the above discussion, we conclude that you are to be considered a "public employee" in your capacity as a Psychiatric Nurse IV with the DPW. 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 Financial 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 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. such. This letter is a public record and will be made available as 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 Ms. Jayne Ruhlman Page 7 be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code S2.12. S erely, Vincent J. Dopko Chief Counsel