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Home My WebLink About98-560 LaichakSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 21, 1998 Henry J. Laichak 229 Maplewood Dr. Johnstown, PA 15904 98 -560 Re: Public Employee; FIS; Staff Pharmacist; Department of Public Welfare (DPW). Dear Mr. Laichak: This responds to your Financial Interest disclosure appeal dated April 17, 1998, which will be treated as a request for advice from the State Ethics Commission. Issue: Whether as a Staff Pharmacist with the Commonwealth of Pennsylvania, Department of Public Welfare, hereinafter DPW, a position from which you retired on April 25, 1997, you would be considered a "public employee" subject to the Public Official and Employee Ethics Law and the Regulations of the State Ethics Commission, and particularly, the requirements for filing Statements of Financial Interests. Facts: You seek a determination as to whether, in your former capacity as a Staff Pharmacist with DPW, a position from which you retired on April 25, 1997, you would be considered a "public employee" subject to the Public Official and Employee Ethics Law (the "Ethics Law ") and the Regulations of the State Ethics Commission. You specifically question whether you are now required to file a Statement of Financial Interests. Copies of your job description, job classification specifications, and organizational chart for the aforesaid position have been obtained and are incorporated herein by reference. The duties and responsibilities of a person in your former position include the following: providing medications based upon physicians' prescription orders and nurses' requests; maintaining records of the supply and dispensing of narcotics, depressant and stimulant drugs, and alcohol; taking periodic inventories of pharmaceutical supplies, and preparing requisitions, records, and inventories of drugs, chemicals, antibiotics, biologicals, and other pharmaceutical preparations; conferring with administrative superiors and making recommendations regarding the purchase and control of new drugs and supplies; assisting the Chief Pharmacist in maintaining sufficient in -date pharmaceuticals by procuring said materials and products; assisting the Chief Pharmacist in inventory accountability and control by preparing requisitions for medications required and dispensed in order to maintain appropriate records in accordance with state, federal, and other agency approved pharmacy regulations; participating in the fiscal audit and processing of pharmaceutical invoices and making determinations about pharmaceutical cost accounting and volume procurement and Laichak, 98 -560 May 21, 1998 Page 2 dispensing, in conjunction with the superintendent or business manager; personally inspecting medications to ensure compliance with certain state, federal, and other agency approved pharmacy regulations; comparing pharmacy patient medication profiles and nursing medication administration records in order to comply with state, federal and other agency approved pharmacy regulations; maintaining pharmacy patient medication profiles and participating in individual annual medication reviews; evaluating selected individuals' prescribed medication and preparing reports to the attending physician in order to inform the attending physician of potential adversities that could occur with selected medications; participating, as appropriate, in clinical rounds, treatment team meetings and conferences; assisting, as appropriate, in developing drug treatment plans consistent with the physician's orders for the patient /resident; and performing numerous other related duties. Discussion: The Ethics Law defines the term "public employee" 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 minimis 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" and set forth the following additional criteria: (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of "public employe ": (A) The individual normally performs his responsibility in the field without onsite supervision. (B) The individual is the immediate supervisor of a person who normally performs his responsibility in the field without onsite supervision. (C) The individual is the supervisor of a highest level field office. (D) The individual has the authority to make final decisions. (E) The individual has the authority to forward or stop Laichak, 98 -560 May 21, 1998 Page 3 recommendations from being sent to the person or body with the authority to make final decisions. (F) The individual prepares or supervises the preparation of final recommendations. (G) The individual makes final technical recommendations. (H) The individual's recommendations or actions are an inherent and recurring part of his position. (I) The individual's recommendations or actions affect organizations other than his own organization. (iii) 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. (iv) Persons in the following positions are generally considered public employes: (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. (D) Engineers, managers and secretary- treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, administrative officers, housing and building inspectors, investigators, auditors, 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 superintendents, assistant superintendents, school business managers and principals. (G) Persons who report directly to heads of executive, legislative and independent agencies, boards and commissions except clerical personnel. (v) Persons in the following positions are generally not considered public employes: (A) City clerks, other clerical staff, road masters, secretaries, police officers, maintenance workers, construction workers, equipment operators and recreation directors. Laichak, 98 -560 May 21, 1998 Page 4 51 Pa. Code § 1 1.1. (B) Law clerks, court criers, court reporters, probation officers, security guards and writ servers. (C) School teachers and clerks of the schools. Status as a "public employee" subject to the Ethics Law is determined by applying the above definition and criteria to the position held. The focus is necessarily upon the position itself, and not upon the individual incumbent in the position, the variable functions of the position, or the manner in which a particular individual occupying the position may carry out those functions. See Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Commw. Ct. 1984); and Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982). Furthermore, the Commonwealth Court of Pennsylvania has directed that coverage under the Ethics Law be construed broadly and that exclusions under the Ethics Law be construed narrowly. See, Phillips, supra. Based upon the above judicial directives, the provisions of the Ethics Law, the State Ethics Commission Regulations, and the opinions of the State Ethics Commission, in light of your duties and responsibilities, the necessary conclusion is that you are a "public employee" subject to the financial reporting and disclosure requirements of the Ethics Law. It is clear that in your former capacity as a Staff Pharmacist for DPW, you had the ability to take or recommend official action with respect to subparagraphs (1) and (5) within the definition of "public employee" as set forth in the Ethics Law, 65 P.S. §402. Specifically, based upon your job description and job classification specifications, a person in your former position would be involved with contracting or procurement as well as making recommendations regarding the purchase and control of new drugs and supplies; inspecting medications to ensure compliance with certain laws and regulations; and assisting in developing drug treatment plans consistent with the physician's orders for the patient /resident. These activities would also meet the criteria for determining your status as a public employee under the Regulations of the State Ethics Commission, specifically at 51 Pa. Code §11.1, "public employee," subparagraph ii. The above conclusions as to your former status as a "public employee" subject to the Ethics Law are in conformity with the State Ethics Commission's ruling in Cwynar, Opinion No. 85 -023. In that Opinion, the Commission held that a Pharmacist for DPW 's Bureau of Utilization Review was a "public employee" subject to the Ethics Law. The Commission specifically noted Cwynar's discretionary authority, and the fact that his responsibilities had a greater than de rninimis economic impact. In your former capacity as a Staff Pharmacist for DPW, you, too, would be considered to exercise discretionary authority and to perform responsibilities that would have a greater than de minimis economic impact. Therefore, you would be considered a "public employee" subject to the Ethics Law. Having retired last year, you would be required to file a Statement of Financial Interests this year (1998), disclosing the requisite financial information for calendar year 1997. Conclusion: In your prior capacity as a Staff Pharmacist with the Commonwealth of Pennsylvania, Department of Public Welfare (DPW), you would be considered a "public employee" subject to the Public Official and Employee Ethics Law and the Regulations of the State Ethics Commission. Having retired from that position in 1997, you would be required file a Statement of Financial Interests this year (1998) Laichak, 98 -560 May 21, 1998 Page 5 disclosing the requisite financial information for calendar year 1997. If you have not already done so, a Statement of Financial Interests for calendar year 1997 must be filed within 30 days of this Advice. Pursuant to Section 7(11), 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal rely, incent Dop o Chief Counsel