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HomeMy WebLinkAbout83-613 McGeeMr. Hubert McGee Trewellyn Avenue Box 104 Penllyn, PA 19458 RE: Pharmacist I; Financial Interest Statement Dear Mr. McGee: November 22, 1983 ADVICE OF COUNSEL Malting Address STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 $3 -613 This responds to your request of July 26, 1983, in which you ask the State Ethics Commission to make a determination regarding your status as a public employee for purposes of filing a Financial Interest Statement. Issue: You ask whether you, as a Pharmacist I for the Norristown State Hospital, must file a Financial Interest Statement with the State Ethics Commission. Facts: You are a Pharmacist I with the Norristown State Hospital in Norristown, Pennsylvania. The job description for the position of Pharmacist. I (incorporated here by reference) indicates that you assist the inventory control system in the pharmacy operation of the Norristown State Hospital and that you are responsible for implementing pharmacy policies and procedures in various assigned patient units in the Hospital. In addition, you are responsible for fiscal audit and processing of pharmaceutical invoices, and for making determinations about pharmaceutical cost accounting in buying, procurement, and dispensing in conjunction with the superintendent or business manager. You also: (1) take periodic inventories of pharmaceutical supplies, prepare requisitions, records, and inventories of drugs, chemicals, and antibiotics, biologicals, and other pharmaceutical preparations; (2) maintain records of the supply and dispensing of narcotics, depressant and stimulant drugs, and alcohol; and (3) confer with administrative superiors and regarding the purchase and control of new drugs and supplies. In addition, you keep records, prepare reports, and maintain files on all drugs purchased, manufactured, compounded, stored, and dispensed, and you maintain separate records on specific drugs in conformity with state and federal laws. Finally, you visit assigned buildings each month to inspect nursing stations for such things as out -dated drugs and drugs with illegible or mutilated labels. During these visits you inspect records of controlled drugs and you review nurses' medication charts to insure correct transcriptions of physician's orders. State Ethics Commission r 30b i- inance Building • Harrisburg, Pennsylvania Mr. Hubert McGee November 22, 1983 Page 2 Although the Department of Public Welfare has determined that you should be considered a "public employee ", you state that, as a Pharmacist I, you do not fall within the definition of a public employee. You state that the nature of your work does not include contracting, procurement, or the making of decisions which would benefit you financially. You, therefore, appeal to the State Ethics Commission to determine whether you, a Pharmacist I for the Department of Public Welfare (DPW), Norristown State Hospital, must file a Financial Interest Statement with the State Ethics Commission. We note that the Office of Administration tract. DPW has listed Pharmacist I as a public employee on their directives for 1983, which list the persons to be considered "public employees" and thus required to file Financial Interest Statements. Discussion: Initially, the Ethics Commission notes that, as a statutory entity, its jurisdiction and its power is strictly limited to the Authority granted it in 65 P.S. 401 et seq. Thus, it has no authority to interpret and /or enforce the provisions of other codes, for example, the Governor's Code of Conduct, and this Advice should not be construed as a determination under Commonwealth law's, codes, or regulations other than the Ethics Act. The applicable provisions of the Ethics Act are contained in 65 P.S. 402, which read: "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 question you present has to be reviewed and answered in light of your own duties and obligations as those duties are enunciated in the classification specifications applicable to the position of Pharmacists I and your own individual job description which is derived therefrom. Such inquiries focus on the job itself and not necessarily on the individual incumbent in the position or the variable functions or the manner in which a Mr. Hubert McGee November 22, 1983 Page 3 particular individual occupying a position may carry out those functions. See McClure, 83 -001; Phillips, 82 -008; and Mummau v. Ranck, 531 Federal Supplement 402 (E.D. Pa. 1982). Reviewing your j65 aria position objectively under this analysis leads us to the conclusion that you are not a "public employee" subject to the filing requirements of the Ethics Act. The factors considered in rendering this decision are 'our relatively ministerial involvement in drug inventory, maintenance of records, and fiscal audit. Such duties are more clerical than discretionary and are not sufficient to bring you within.the definition of "public employee" above; thus you are not subject to the filing requirements of the Ethics Act. Conclusion: As a Pharmacist I for the Department of Public Welfare, you are not to be considered to be a "public employee ", and you are not required to file a financial disclosure form pursuant to the provisions of the Ethics Act, 65 P.S. Section 401 et seq. 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 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. SSC /rdp Enclosures cc: John Lylo Dorothy Cleaver, M.D. Francis J. Clifford Sharon Wright Sincerely, AtL.4.04r>.9 andra S. Chr Manson General Counsel