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HomeMy WebLinkAbout92-580Ms. Christine Griffith 92 -580 304 Lyman Lane Conemaugh, PA 15909 • Re: Public Employee, FIS, Pharmacist, Department of Public Welfare. Dear Ms. Griffith: STATE ETHICS COMMISSION 30~ CE :BUILDING F. BOX 11470 HARRISBURG, PA 0108-1470 TELEPHONE'(711) 783 -1$10 ADVICE'OF COUNSEL May 14, 1992 This responds to your Financial Interest. Disclosure Appeal 'of April 6, 1992 - , which will be treated as a request for advice from the State Ethics Commission. Issuer Whether a dispensing' Pharmacist with the Department of Public Welfare is to be considered a "public employee" under the Ethics Law, and therefore, required to comply with the financial reporting and disclosure provisions o -f`the Ethics Law. Facts: As a former Pharmacist for the Ebensburg Center of the Department of Public Welfare (DPW), you question whether your activities and functions in that position would fall within the purview of the definition of "public employee" as defined in the Ethics Law and the Regulations of this Commission. You state that you had no connection with contracting or purchasing at the Center and do not feel that you should fill out a financial disclosure statement. You note that in April of 1991 you submitted an Appeal form for financial disclosure, and that at time, you were granted a waiver from filing the form. A copy of a letter dated June 7, 1991, from John Lylo, Director, to you has been obtained from DPW, which document is incorporated herein by reference. The said letter indicates that the Governor's Office of Administration and. DPW granted your prior appeal from the requirement to file Statements of Financial Interests under the Ethics Law based upon previous decisions of this Commission, because your duties and responsibilities were those of a dispensing pharmacist. Neither the job description nor the job classification specification for your former position at the Ebensburg Center have been submitted for review. A copy of the organizational chart fbr the Ebensburg Center has been Obtained and is incorporated herein by reference. Ms. Christine Griffith May 14, 1992 Page 2 Discussion: You question the requirements that you comply with the financial reporting and disclosure provisions of the Ethics Law. You do not believe your duties and responsibilities in your former position as a Pharmacist for the Ebensburg Center of DPW are within the definition of "public employee" or "public official ". Accordingly, we have been asked to review the question of whether you would be subject to the financial reporting and disclosure requirements of the Ethics Law. In this regard, it is noted that a public official /public employee is required by the Ethics Law to file a Statement of Financial Interests for each year that the position is held and the year following termination of service. This advisory is without the benefit of the job description or job classification specification for your former position at the Ebensburg Center, and the sole information submitted to the Commission which characterizes the nature of your former duties as a Pharmacist at the Ebensburg Center is Mr. Lylo's incorporated letter of June 7, 1991. That letter states a conclusion, without factual detail, that your duties were those of a dispensing pharmacist as opposed to a pharmacist involved in utilization review. - Conditioned upon the assumption that in your former position as a Pharmacist with the Ebensburg Center your duties were limited to those of a dispensing pharmacist only, you would not be considered a "public employee" as defined in the Ethics Law, and therefore you would not be required to file a Statement of Financial Interests. This conclusion is based upon the assumption that your duties were relatively ministerial and more clerical than discretionary such that they would not be sufficient to bring you within the definition of "public employee" and therefore would not subject you to the filing requirements of the Ethics Law. See, McGee, Advice 83 -613. However, you are cautioned that an advisory only affords protection to the extent that the requestor has truthfully disclosed all of the material facts. See, 65 P.S. SS407(10),(11). Furthermore, determinations of the status of an individual as a public official/public employee are necessarily based upon the duties and responsibilities of the job itself and are not dependent upon whether the individual holding that position actually performs all of the functions of the position. It is recommended that you review the Commission's Opinion in Cwvnar, Opinion 85 -023, wherein a pharmacist in the Bureau of utilization Review within DPW was found to be a public employee within the purview of the Ethics Act and was required to file a Statement of Financial Interests based upon that individual's job description. See also, Bianca, Advice 92 -581 issued this date. Pot your information, you are advised that Sections 3(b) and 3(c) apply to everyone regardless of their status as a public official /public employee. Sections 3(b) and 3(c) of the Ethics Law Ms. Christine Griffith May 14, 1992 Page 3 provide in part that no person shall "offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: In your former position as a Pharmacist with the Ebensburg Center of the Department of Public Welfare (DPW), you would not be considered a public employee as defined in the Ethics Law. Accordingly, you would not be subject to the reporting and disclosure requirements of the Ethics Law and need not file a Statement of Financial Interests. This Advice is expressly conditioned upon the assumption that the duties and responsibilities of said former position were those of a dispensing pharmacist only and were ministerial and clerical in nature rather than discretionary. Sections 3(b) and (c) of the Ethics Law are applicable to everyone. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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 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 in writing and mutat be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. • . cerely, Vincent . Dopko Chief Counsel