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HomeMy WebLinkAbout86-575 MilksMr. Dale D. Milks P. 0. Rox 94 Polk,:PA 16342 Dear Mr. Milks: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 June 19, 1986 ADVICE OF COUNSEL 86 - 575 Re: Puhlic Employee /Official, Pharmacist I, Pennsylvania Department of Puhlic Welfare This responds to your letter to the State Ethics Commission of May 21, 1986, in which you requested advice from the State Ethics Commission. Issue: You ask whether, because of your service as a Pharmacist I, with the Pennsylvania Department of Puhlic Welfare, you are to be considered a "public employee" or "public official" under the State Ethics Act and, therefore, required to comply with the financial reporting and disclosure provisions of the State Ethics Act. Facts: You serve as a Pharmacist I with the Pennsylvania Department of Public Welfare, hereinafter the Department. As such, you are or were primarily responsible for the compounding and dispensing of physicians' prescriptions, including a variety of ointments, powders, solutions, medicines, drugs and other pharmaceutical supplies for use in the facility to which you are assigned. You are currently assigned to the Polk Center. Work includes the filling of ward requisitions for narcotics, solutions and drug supplies and the maintenance of accurate records of narcotics, depressant and stimulant drugs. You are responsihle for reviewing the medication records of patients and reporting potential drug adverse interactions. Work may include participating with doctors, nurses and other professional personnel as a member of inter - disciplinary treatment teams. You are also responsible for participating in the fiscal audit and processing of pharmaceutical invoices, making determinations about pharmaceutical cost accounting and volume procurement and dispensing, in conjunction with the superintendent or husiness manager. An employee in your position takes periodic inventories of pharmaceutical supplies and prepares requisitions and inventories of drugs, chemicals, and other pharmaceutical preparations. We have reviewed your specification classification,( #3271) as well as your joh description and said documents are incorporated herein by reference. Mr. Dale D. Milks June 19, 1986 Page 2 You question the requirement that you comply with the financial reporting and disclosure provisions of the State Ethics Act. You do not believe your duties and responsibilities are such that you fall within the definition of "public employee" or " public official" in the Ethics Act. Accordingly, we have been asked to review the question of whether you are subject to the financial reporting and disclosure requirements of the State Ethics Act. We note that, for the sake of this response, we are relying primarily on your job description and classification specifications which have been provided to us. Discussion: The pr question to be answered is whether or not you are to be considered a "public employee" as that term is defined in the State Ethics Act. Act provides 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 normi ni steri al nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subs idi 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 i n teaching as distinguished from admi ni strative duties. 65 P.S. 402. The other question is whether you should be considered a "public official." That term is defined in the Ethics Act as follows: Section 2. Definitions. "Public official." Any elected or appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof, provided that it shal 1 not include members of advi sory boards that have no authority to expend public funds other than reimbursement Mr. Dale D. Milks June 19, 1986 Page 3 for personal expense, or to otherwise exercise the power of the State or any political subdivision thereof. "Public official" shall not include any appointed official who receives no compensation other than reimbursement for actual expenses. 65 P.S. 402. Based upon the definition of "public employee" and in light of your job description and the classification specifications for your position, as well as the language in your appeal and /or request for advice, and the explanation of your job as set forth therein, we conclude that you are not to be considered a "public employee" as that term is defined in the State Ethics Act. This conclusion is based upon our objective review of this information from which it appears that you have not been responsible for taking or recommending official action of a non - ministerial nature with regard to any of the five categories set forth in the definition listed above for the term "public employee ". McGee, 83 -613. Thus, because you do not fall within the classification of the term "public employee", you would not be subject to the financial reporting and disclosure requirements of the State Ethics Act. Accordingly, you would not be requi red to execute the Statement of Financial Interests for the years in which you served in your position as a Pharmacist I with the Department. We do note that our advice in this matter relates only to your position as a Pharmacist I assigned, generally, as a dispensing pharmacist. Previous Commission advices and opinions, however, have determined that a pharmacist, who serves in other capacities such as utilization review or as Chief Pharmacist, would be required to file Statements of Financial Interests in accordance with the State Ethics Act. Geary, 86 -560; Cwyar, 85 -023. Reviewing your position and the items referred to above, we also conclude that you are not to be considered a "public official" as set forth above. Conclusion: In your position as a Pharmacist I with the Pennsylvania Department of Public Welfare, you are not to be considered a public employee as defined in the State Ethics Act. Ac- cordingly, you'would not be subject to the reporting and disclosure requirements of the State Ethics Act and you need not execute a Statement of Financial Interests. 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 crimi nal proceedi ng, providi ng the requestor has di sclosed 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. Mr. Dale D. Milks June 19, 1986 Page 4 Finally, i f you disagree with this Advice or i f 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 Opi ni on from the Commission wi 1 1 be issued. Any such appeal must be made, i n writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Si nc ohn Gene nti no Counsel