HomeMy WebLinkAbout86-560 GearyMs. Karen 0. Geary
401 Murphy Avenue
Connellsville, PA 15425
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
May 20, 1986
ADVICE OF COUNSEL
86 -560
Re: Chief Pharmacist, State Hospital, Public Employee
Dear Ms. Geary:
This responds to your letter of April 21, 1986, in which you requested
advice from the State Ethics Commission.
Issue: You ask whether in your capacity as a Chief Pharmacist with the
Connellsville State General Hospital, hereinafter, the Hospital, 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: The Chief Pharmacist is generally responsible for the professional
pharmaceutical work of an administrative nature at a state operated facility.
An employee, in this class, is responsible for the direction of all
pharmaceutical services in a facility, including the establishment of
policies, procedures and controls for the compounding, dispensing and flow of
narcotics, depressants and stimulant drugs as well as alcohol. Work includes
the development of recommendations for the purchase of pharmaceuticals and
pharmaceutical supplies, the maintenence of appropriate pharmacy records and
the provision of consultive services to the medical staff. General
supervision is exercised over a staff of lower level pharmacist, pharmacy
assistants, clerical and custodial personnel. Work, in this position, is
performed with complete independence and within the framework of established
policy, laws, and regulations. In addition to the foregoing, you assume
responsibility for fiscal audit and processing of pharmaceutical invoices,
making determinations about pharmaceutical costs and accounting and volume
procurement and dispensing in conjunction with the superintendent or business
manager. You are also responsible for approving requisitions for large
quantities of various narcotic and pharmaceutical supplies. We have reviewed
you job classification for your position, (No. 3272) and have incorporated
that document herein by reference.
Ms. Karen D. Geary
May 20, 1986
Page 2
Discussion: As set forth above, the question to be answered here is clear.
Specifically, are you, in your capacity as a Chief Pharmacist serving with the
Hospital to be considered a "public employee." The State Ethics Act defines
that term 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 State Ethics Commission similarly define the term
public employee as above and also set forth that the term includes any
i ndi vi dual :
(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.
Ms. Karen D. Geary
May 20, 1986
Page 3
(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.
(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 di rectors 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.
Ms. Karen D. Geary
May 20, 1986
Page 4
(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 mi nor
judici ary.
(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
di rectors.
(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 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, 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
Ms. Karen D. Geary
May 20, 1986
Page 5
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 served in this capacity, you were 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 Chief Pharmacist, you had the
ability to recommend official action with respect to subparagraph 1 and 5
within the definition of "public employee" as set forth in the Ethics Act, 65
P.S. 402. Specifically, you were responsible for the development of
recommendations for the purchase for the pharmaceutical and pharmaceutical
supplies and for fiscal audits and processing of pharmaceutical invoices. You
also were involved and responsible for approving requisitions for large
quantities of various narcotics. These activities fall 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 were a "public
employee" as that term is defined in the State Ethics Act.
We do note, for the sake of being complete, that although you were only
employed by the Hospital for a short period of time during the preceeding
year, we do not believe that this limited period of service would alleviate
the requirement that you file your Statement of Financial Interests. This is
specifically so in light of the fact that it does not appear that your service
was of a part -time nature. Your service at the time of employment appears to
have been anticipated as a full -time public position, as such, we believe that
the filing requirement i s mandated.
Conclusion: Based upon the above discussion, we conclude that you were to be
considered a "public employee" in your capacity as a Chief Pharmacist with the
Connel lsvi 1 le State General Hospital. Accordingly, you must file a Statement
of Financial Interests for each year in which you held 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
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.
Ms. Karen D. Geary
May 20, 1986
Page 6
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.
Si • - rel . 2
ohn J. i no
Gener• Counsel
G-