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HomeMy WebLinkAbout02-007 MuscalusOPINION OF THE COMMISSION Robert S. Muscalus, D.O. Physician General Department of Health Commonwealth of Pennsylvania P.O. Box 90 Harrisburg, PA 17108 Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Frank M. Brown Susan Mosites Bicket Donald M. McCurdy Michael J. Healey DATE DECIDED: 9/5/02 DATE MAILED: 9/25/02 Re: Public Official; Member, Board of Directors; Patient Safety Authority. Dear Dr. Muscalus: This Opinion is issued in response to your advisory request of July 19, 2002. I. ISSUE: 02 -007 Whether Members of the Board of Directors of the Patient Safety Authority established by Pennsylvania's Medical Care Availability and Reduction of Error Act ( "MCARE Act "), 40 P.S. § 1303.101 et seq., are "public officials" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. II. FACTUAL BASIS FOR DETERMINATION: As Chair of the Board of Directors ( "Board ") of the Patient Safety Authority ( "Authority "), you request an advisory opinion on behalf of the Members of the Authority Board as to whether they are "public officials" subject to the Ethics Act. The MCARE Act, enacted March 20, 2002, created the Authority as a body corporate and politic. Per the MCARE Act, all powers and duties of the Authority are vested in the 11- Muscalus 02 -007 September 25, 2002 Page 2 Member Board. 40 P.S. §§ 1303.303(a), (b). The Board Members include the Physician General or a physician appointed by the Governor and six other gubernatorial appointees. The President pro tempore of the Senate, the Minority Leader of the Senate, the Speaker of the House of Representatives, and the Minority Leader of the House of Representatives each appoint one of the remaining four Members. 40 P.S. § 1303.303(b). The powers and duties of the Authority include applying for, soliciting, receiving, establishing priorities for, allocating, disbursing, contracting for, administering and spending funds in the "Patient Safety Trust Fund" as well as other funds made available to the Authority. 40 P.S. § 1303.304(a)(4). The Patient Safety Trust Fund is a separate account established in the State Treasury, consisting of surcharges on the licensing fees of medical facilities covered by the MCARE Act, together with interest earned thereon, which moneys are not considered general revenue of the Commonwealth but are to be used only to effectuate the purposes of Chapter 13 of the MCARE Act, as determined by the Authority. 40 P.S. §§ 1303.305. The powers and duties of the Authority also include, inter alia, the following: adopting bylaws; employing staff; entering into contracts; contracting with entities other than health care providers for analyses and recommendations for changes in health care practices /procedures designed to reduce the number and severity of "serious events" and "incidents" involving the clinical care of patients; receiving, evaluating, and reporting such recommendations to the Pennsylvania Department of Health; and, following consultation and approval by the Department of Health, issuing recommendations to medical facilities on a facility- specific or Statewide basis for the purpose of reducing the number and severity of serious events and incidents. 40 P.S. § 1303.304(a). Additionally, the Authority has the power /duty to receive and conduct reviews as to reports regarding serious events at medical facilities, and to refer medical facilities and involved licensees to the Department of Health for failure to report a serious event or infrastructure failure as required by Sections 313(e), (f) of the MCARE Act. See, 40 P.S. §§ 1303.302; 1303.304(b); 1303.313(e), (f). By letter dated August 1, 2002, you were notified of the date, time and location of the public meeting at which your request would be considered. At the public meeting on September 5, 2002, you appeared and offered commentary, which may be fairly summarized as follows. You stated that to the extent the Members of the Authority Board are responsible for making decisions regarding the disbursement of funds that come into the Patient Safety Trust Fund, it would appear that the Members are covered by the Ethics Act. You opined that the Authority Board is not an advisory board because it must make decisions that have financial implications and also potential licensure implications for facilities licensed through the Department of Health. III. DISCUSSION: It is initially noted that pursuant to Sections 1107(10) and 1107 (11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, this Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. The term "public official" is defined in the Ethics Act as follows: § 1102. Definitions Muscalus 02 -007 September 25, 2002 Page 3 "Public official." Any person elected by the public or elected or appointed by a governmental body or an appointed official in the executive, legislative or judicial branch of this Commonwealth or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. 65 Pa.C.S. § 1102. The regulations of the State Ethics Commission define the term "public official" as follows: Public official —A person elected by the public or elected or appointed by a governmental body, or an appointed official in the Executive, Legislative or Judicial Branch of the Commonwealth or a political subdivision thereof. The term does not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense, or to exercise otherwise the power of the Commonwealth or a political subdivision thereof. (i) The following criteria will be used to determine if the exception in this paragraph is applicable: (A) The body will be deemed to have the power to expend public funds if the body may commit funds or may otherwise make payment of monies, enter into contracts, invest funds held in reserves, make loans or grants, borrow money, issue bonds, employ staff, purchase, lease, acquire or sell real or personal property without the consent or approval of the governing body and the effect of the power to expend public funds has a greater than de minimis economic impact on the interest of a person. (B) The body will be deemed to have the authority to otherwise exercise the power of the Commonwealth or a political subdivision if one of the following exists: (I) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (11) The body exercises a basic power of government and performs essential governmental functions. (III) The governing authority is bound by statute or ordinance to accept and enforce the rulings of the body. (IV) The body may compel the governing authority to act in accordance with the body's decisions or restrain the governing authority from acting contrary to the body's decisions. (V) The body makes independent decisions which are effective without approval of the governing authority. Muscalus 02 -007 September 25, 2002 Page 4 (VI) The body may adopt, amend and repeal resolutions, rules, regulations or ordinances. (VII) The body has the power of eminent domain or condemnation. (VIII) The enabling legislation of the body indicates that the body is established for exercising public powers of the Commonwealth or a political subdivision. (ii) The term does not include judges and inspectors of elections, notary publics and political party officers. (iii) The term generally includes persons in the following offices: (A) Incumbents of offices filled by nomination of the Governor and confirmation of the Senate. (B) Heads of executive, legislative and independent agencies, boards and commissions. (C ) Members of agencies, boards and commissions appointed by the General Assembly or its officers. (D) Persons appointed to positions designated as officers by the Commonwealth or its political subdivisions. (E) Members of municipal, industrial development, housing, parking and similar authorities. (F) Members of zoning hearing boards and similar quasi- judicial bodies. (G) Members of the public bodies meeting the criteria in paragraph (i)(A). 51 Pa. Code § 11.1. Status as a "public official" subject to the Ethics Act 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, Philips v. State Ethics Commission, 470 A.2d 659 Pa. Commw. Ct. 1984); Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982. Furthermore, the Commonwealth Court of Pennsylvania has directed that coverage under the Ethics Act be construed broadly and that exclusions under the Ethics Act be construed narrowly. See, Phillips, supra. In considering the statutory definition of "public official," we note that as a result of the codification of the Ethics Act, certain changes were made to the definition. The prior definition as it appeared in Act 9 of 1989 is reproduced below, with underlining denoting where the changes occurred: Muscalus 02 -007 September 25, 2002 Page 5 "Public official." Any person elected by the public or elected or appointed by a governmental body or an appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. Act 9 of 1989, 65 P.S. § 402 (Underlining added). In comparing the current statutory definition to the prior statutory definition, the only change which could potentially affect the meaning of the term "public official" is the removal of the comma following the words "governmental body." The threshold question to be resolved by this Commission before applying the definition to Members of the Authority Board is whether the removal of the aforesaid comma was a mere editorial change or was intended to change the meaning of the term "public official" from that which has been in effect since 1989. We determine that the removal of the comma following the words "governmental body" was in fact a mere editorial change and was not intended to change the meaning of the term "public official." This determination is supported by both Act 93 of 1998 and the legislative debate as to Senate Bill 254. First, Act 93 of 1998 itself provides: Section 2. (a) Except as otherwise specifically provided in this act it is the intention of this act to continue existing law. (b) All litigation, hearings, investigations and other proceedings whatsoever under any statute repealed by this act shall continue and remain in full force and effect and may be completed under the provisions of this act. All orders regulations or rules made under any statute repealed by this act and in full force and effect upon the effective date of such repeal shall remain in full force and effect until revoked, vacated or modified under the provisions of this act... . Act 93 of 1998, Sections 2(a), (b). There is nothing in Act 93 of 1998 indicating a specific intention to change the meaning of the term "public official." Additionally, the legislative debate as to Senate Bill 254 reveals that only a few substantive changes were intended as to the Ethics Act, and this was not one of them. See, Legislative Journal of House, 1998 Session, No. 45 at 1664. Therefore, it was the General Assembly's intention that the meaning of the term "public official" continue as it was under Act 9 of 1989 as well as the Commission Regulations which remain in full force and effect. Having concluded that the substantive meaning of the definition of "public official" has not changed, our application of the above judicial directives, the provisions of the Ethics Act, and the Regulations and opinions of this Commission results in the necessary conclusion that Members of the Authority Board are "public officials" subject to the provisions of the Ethics Act. In applying the first portion of the definition, a public official is a person who: (1) is elected by the public; (2) is elected or appointed by a governmental body; or (3) is an appointed official in the executive, legislative or judicial branch of the Commonwealth or a political subdivision of the Commonwealth. Members of the Authority would at the very least fall within the third category above. The Authority has been created by the General Assembly as a governmental body within the executive branch of the Commonwealth. Therefore, Members of the Authority Board are appointed officials in the executive branch of the Muscalus 02 -007 September 25, 2002 Page 6 Commonwealth. Such status satisfies the first portion of the definition. As for the remainder of the definition, it is the determination of this Commission that Members of the Authority Board would not fall within the statutory exception for members of purely advisory boards lacking authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or a political subdivision. Per the MCARE Act, the Authority Board goes beyond a purely advisory function, particularly as to the administration of the Patient Safety Trust Fund. Moreover, the activities of the Authority Board do, in our view, constitute the exercise of the power of the State. The State, having undertaken this legislation to reform the law on medical professional liability, has ipso facto established that these activities of the Authority Board Members are within the power of the State. Therefore, Members of the Authority Board are "public officials" subject to the Ethics Act and the Regulations of the State Ethics Commission. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. IV. CONCLUSION: Members of the Board of Directors of the Patient Safety Authority established by Pennsylvania's Medical Care Availability and Reduction of Error Act ( "MCARE Act "), 40 P.S. § 1303.101 et sect., are "public officials" subject to the Public Official and Employee Ethics Act ( " Ethics Act'), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission. The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). By the Commission, Louis W. Fryman Chair