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HomeMy WebLinkAbout87-633 MoyerSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 November 27, 1987 ADVICE OF COUNSEL 87 - 633 Ms. Colleen Moyer R. D. #2, Box 5U Palmyra, PA 17078 Re: Simultaneous Service, Medical Assistance Pharmaceutical Program Examiner and Retail Pharmacist Dear Ms. Moyer: This responds to your letter of October 24, 1987, in which you requested advice from the State Ethics Commission. Issue: You ask whether, as a Medical Assistance Pharmaceutical Program. Examiner you may also serve as or undertake activity as a retail pharmacist. Facts: You state that you are currently an the a are Pennsylvania Department of Public Welfare retail licensed pharmacist at both ate that you do not own stock Rhoads Pharmacy. You further pricing or in t h es e which companies and are not involved in establishing any p are predetermined by the owners. y u further that do discounts on merchandise accorded to all employees of these pharmacies. Your job description /specification, which is incorporated herein ancbes by reference, sets forth your duties which include r i de nti f yin gid is repac and of provider invoices, claims history profiles, MA documents; functioning as a professional consultant in given cases by providing knowledge and expertise in the pharmaceutical field; functioning as a case coordinator in certain cases by planning and ud ir ec ti ng r o f activities; researching, analyzing and evaluating quality supplied by providers of outpatient services by participating in record reviews, on -site visits, recipient interviews and evaluations review meetings so as to detect pfondangSbuvQOlatponsnofaregulations and reports for review, methodo gyp Ms. Colleen Moyer November 27, 1987 Page 2 recommendations so as to provide written documentation of the progress of cases, the findings of the review process and the basis for the department's administrative action; controlling drug sample logs and arranging for drug company testing of drug samples; participating in evidentiary meetings with the Division Chief and others by discussing provider case histories, case strategy and findings in order to recommend sanctions in line with the department's guidelines; testifying at administrative hearings or trials in the capacity of a department's witness in order to provide testimony regarding case development or findings or other pertinent information; preparing additional written material, memorandum, letters and reports and performing such other additional related duties as are required to meet the goals and objectives of the bureau. You conclude by asking whether, under the Ethics Act, you, as a Medical Assistance Pharmaceutical Program Examiner in the Department of Public Welfare may also work as a retail license pharmacist. Discussion: As a Medical Assistance Pharmaceutical Program Examiner in the Utilization Review Bureau of the Department of Public Welfare, you are a "public employee" as that term is defined in the Ethics Act. 65 P.S. §402. As such, your conduct is subject to the Ethics Act and the restrictions therein are applicable to you. Section 3(a) of the Ethics Act provides: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Under this provision, the Ethics Commission has determined that the use of one's public office by a public official /employee to obtain a gain or benefit for himself which is not provided for in law constitutes a "financial gain other than compensation provided by law." See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. (1987) filed on September 18, 1987 at 834 C.D. 1986. However, Section 3(al the Ethics Act would not prohibit you as a Medical Assistance Pharmaceutical Program Examiner from working as a retail licensed pharmcist. Ms. Colleen Moyer November 27, 1987 Page 3 Of course, under this provision, you may not use your public position to secure any financial gain for the Peoples Service Drug Stores Inc., or Rhoads Pharmacy. However, as outlined above, there does not appear to be a real possibility of any financial gain or inherent conflict arising if you were to serve both as a public official and /or public employee and as a licensed retail pharmacist. Basically, the Ethics Act does not state that it is inherently incompatible for a public employee to serve as a retail licensed pharmacist. The main prohibition under the Ethics Act and Opinions of the Ethics Commission is that you may not serve the interests of two persons, groups, or entities whose interests may be adverse. See Alfano, 80 -007. In the situation outlined above, you would not be serving entities with interests which are adverse to each other. Section 3(b) of the Ethics Act provides: Section 3. Restricted activities. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Under Section 3(b) of the Ethics Act cited above, which you must observe, you must neither offer nor accept anything of value on the understanding or with the intention that your official judgment would be influenced thereby. We assume such a situation does not exist here. We add reference to this Section not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Lastly, this Commission has addressed your question only under the Ethics Act; it has not addressed the applicability of any other statute, code, ordinance, regulation or other code of conduct, such as the State Adverse Interest Act or Governor's Code of Conduct, other than the Ethics Act. Ms. Colleen Moyer November 27, 1987 Page 4 Conclusion: As a Medical Assistance Pharmaceutical Program Examiner, you are a public employee subject to the provisions of the Ethics Act. Under the circumstances outlined above, there is no inherent prohibition under the Ethics Act for you to serve both as a public official and /or employee and as a retail licensed pharmacist. Accordingly, you may, consistent with the Ethics Act, serve in these capacities simultaneously, subject to the limitations as noted above. 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 w i l l 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 ncerely, Q Vincent J'. Dopko General Counsel