HomeMy WebLinkAbout92-581Mr. Vincent C. Bianca, Jr.
319 North Lincoln Avenue
Scranton, PA 18407
Dear Mr. Bianca:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717)783 -1610
ADVICE OF COUNSEL
May 14, 1992
Re: Pharmacist; Public Employee; FIS.
92 -581
This responds to your Financial Interest disclosure appeal
dated April 8, 1992, which will be treated as a request for advice
from the State Ethics Commission.
Issue: You ask whether in your former capacity as a Pharmacist
with Fairview State Hospital of the Department of Public Welfare
(DPW), you would be considered a "public employee" as that term is
defined in the Public Official and Employee Ethics Law, and
therefore, whether you are required to file a Statement of
Financial Interests.
Facts: You question whether your activities and functions in your
former position as a Pharmacist for the Fairview State Hospital of
DPW fall within the purview of the definition of "public employee"
as that phrase is defined in the Ethics Law and the regulations of
this Commission. You state that you retired July, 1991, and that
in your former position you filled prescriptions for in- patients at
Fairview State Hospital. You state that you have never been a
candidate for public office and were never elected or appointed as
a public official at the state, county or local level.
In order to review the question presented, we will briefly
outline the duties and responsibilities associated with your
position as contained in your job description and the
classification specifications for this position, which documents
are incorporated herein by reference. The duties and
.responsibilities set forth in your job description for your former
position include but are not limited to the followings
1. Reviewing patient charts on a monthly basis, checking for
consistency between physician orders., medication cards,
k ardem *wad medicatios administration records,, and
Mr. Vincent C. Bianca, Jr.
May 14, 1992
Page 2
maintaining a log of the charts reviewed which is
submitted to the Director of the Pharmacy on a monthly
basis;
2. Compounding and dispensing physician's orders and ward
stock drugs;
3. Maintaining various inventory records and assisting in
semi - annual inventory;
4. Directing and assisting support personnel in distributing
drugs /medical supplies to ward areas on an as needed
basis;
5. Participating in providing in- service training to other
departments; and
6. Performing the duties of Acting Chief Pharmacist in his
absence.
Your job classification specification sets forth additional duties
and examples of work which include but are not limited to:
conferring with administrative superiors and making recommendations
regarding the purchase and control of -new drugs and supplies;
participating with doctors, nurses, and other professional
personnel as a member of an inter- disciplinary treatment team
charged with the responsibility of developing a comprehensive
treatment plan for each patient /resident at the facility;
participating as appropriate in clinical rounds, treatment team
meetings and conferences; and assisting, as appropriate, in
developing drug treatment plans which are consistent with the
physician's orders for the patient /resident.
Discussion: The question to be answered is whether you, in your
former capacity-as a Pharmacist for Fairview Hospital of DPW, would
be considered a "public employee." In this regard, it is noted
that public officials /public employees are required by the Ethics
Law to file Statements- of Financial Interests for each year -the
position is held and for the year following termination of service.
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
Mr. Vincent C. Bianca, Jr.
May 14, 1992
Page 3
65 P.S. 5402.
(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 minimus nature on the interests
of any person.
"Public employee" shall not include individ-
uals who are employed by the State br any
political subdivision thereof in teaching as
distinguished from administrative duties.
The regulations of the State Ethics Commission similarly
define the term public employee as above and also set forth that
the term includes any individual:
(B) Who meets the criteria of either
subclause (I) or (II):
(I) The individual is:
(a) a person who normally performs his
responsibility in the field without on-
site supervision;
(b) the immediate supervisor of a person
who normally performs his responsibility
in the field without on -site supervision;
or
(c) the supervisor of any highest level .
field office.
(II) The individual is a person:
(a) who:
(1) has the authority to make final
decisions;
(2) has the authority to forward or
stop recommendations from being sent
to the person or body with the
authority to make finai declaims)
Mr. Vincent C. Bianca, Jr.
May 14, 1992
Page 4
(3) prepares or supervises the
preparation of final recommen-
dations; or
(4) makes final technical recommen-
dations; and
(b) whose recommendations or
actions:
(1) are an inherent and recurring
part of his position; and
(2) affect organizations other than
his own organization.
(ii) 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.
(iii) Persons in the positions listed below
are generally considered public employees.
(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 before
the public.
(D) Solicitors, engineers,
managers, and secretary- treasurers
acting as managers, police chiefs,
chief Clerks, chief purchasing
agents, grant and contract managers,
housing and building inspectors,
sewer enforcement officers, and
zoning cfficers in all governmental
bodies.
Mr. Vincent C. Bianca, Jr.
May 14, 1992
Page 5
51 Pa. Code S1.1.
(E) Court administrators,
assistants for fiscal affairs, and
deputies for the minor judiciary.
(F) School business managers and
principals.
(iv) Persons in the positions listed below are
generally not considered public employees.
(A) City clerks, other clerical
staff, road masters, secretaries,
police officers, welfare case
workers, 'maintenance workers,
construction workers, detectives,
equipment operators, and recreation
directors.
(B) Law clerks, court criers, court
reporters, probation officers,
security guards, and writ servers.
(C) - School teachers and clerks of
the schools.
We must review the question you present under these provisions
of the statute and the regulations of the Commission in light of
your duties and obligations as described in your jpb description
and /or classification specifications, under which you operate. Our
inquiry necessarily focuses on the job itself and not on the
individual incumbent in the position, the variable functions of the
position, or the manner in which a particular individual occupying
a position may carry out those functions. See Phillips v. State
Ethics Commission, 79 Pa. Cmwlth. 491, 470 . 2d 659 (1964), act"
Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 19
Also, in reviewing your question, the Commonwealth Court in
its ruling in Phillips, supra, at page 661 directs us to construe
coverage of the Ethics Act broadly, .rather than narrowly, and
conversely, directs that exclusions from the Ethics Law -should be
narrowly construed. Based upon this directive and reviewing the
definition of "public employee" in the statute and the regulations
and opinions of this Commission, in light of your job functions and
the information available to us, we must conclude that in your
former capacity as a Pharmacist for Fairvievr State Hospital, you
would be a *public employee" subject to the financial reporting and
disclosure requirements of the Ethics Law.
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
Mr. Vincent C. Bianca, Jr.
May 14, 1992
Page 6
It is clear that in your former capacity as a Pharmacist for
Fairview State Hospital of DPW, you had the ability to take or
recommend official action with respect to subparagraph 5 within the
definition of "public employee" as set forth in the Ethics Law, 65
P.S. S402. Specifically, according to your job classification
specification, examples of your work may include conferring with
administrative superiors and making recommendations regarding the
purchase and control of new drugs and supplies. Furthermore, your
work may include participating with doctors, nurses, and other
professional personnel as a member of an inter - disciplinary
treatment team charged with the responsibility of developing a
comprehensive treatment plan for each patient /resident at the
facility. You may participate in clinical rounds, treatment team
meetings and conferences and assist in developing drug treatment
plans which are consistent with the physician's orders for the
patient /resident. Significantly, according to your job
description, you perform the duties of the Acting Chief Pharmacist
in his absence. These activities fall within the definition of
public employee as contained in the regulations of the Commission
in Section 1.1, subparagraphs (A) and (B)(II). 51 Pa. Code X1.1.
Under these circumstances and given your duties and
responsibilities in your former position as outlined above, you
would be a "public employee" as that term is defined in the Ethics
Law in your former position as a Pharmacist for the Fairview State
Hospital.
Conclusion: In your former capacity as a Pharmacist for the
Fairview State Hospital of the Department of Public Welfare (DPW),
you would be considered a "public employee" as defined in the
Ethics Law and the regulations of the State Ethics Commission.
Accordingly, you would be required to file a Statement of Financial
Interests for each year in which you held the position outlined
above and for the year following your termination of this service.
If you have' not already done so, such Statement(s) of
Financial Interests must be filed within 15 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
Mr. Vincent C. Bianca, Jr.
May 14, 1992
Page 7
will be scheduled and a formal Opinion from the Commission will be
issued. Any such appeal must be in writing and must be received at
the Commission within 15 days of the date of this Advice pursuant
to 51 Pa. Code S2.12.
ncerely,
viih)
Vincent J. Dopko
Chief Counsel