HomeMy WebLinkAbout04-530 SpearSamuel L. Spear, Esquire
Spear, Wilderman, Borish, Endy,
Spear and Runckel
Suite 1400, 230 South Broad Street
Philadelphia, PA 19102
Re: Public Employee; FIS; Staff Psychiatrist; Staff Physician 2; Physician Specialist
in Internal Medicine; Supervisory Physician; Psychiatrist Supervisor; Podiatrist;
Dentist; Department of Public Welfare; Pennsylvania Doctors Alliance.
Dear Mr. Spear:
ADVICE OF COUNSEL
April 16, 2004
04 -530
This responds to your letters dated June 5, 2003, and March 12, 2004, by which
you requested advice from the State Ethics Commission.
Issue: Whether various medical /dental professionals employed with the
Up rtment of Public Welfare would be considered "public employees' subject to the
Public Official and Employee Ethics Act (the "Ethics Act "), 65 Pa.C.S. § 1101 et seq.,
and the Regulations of the State Ethics Commission, and particularly, the requirements
for filing Statements of Financial Interests.
Facts: Your law firm serves as counsel to the Pennsylvania Doctors Alliance
("PDA "), the certified representative of collective bargaining and meet - and - discuss units
of physicians and dentists employed by the Commonwealth of Pennsylvania.
Procedurally, on June 5, 2003, you submitted two separate letters to the State
Ethics Commission appealing separate determinations of the Department of Welfare
( "DPW ") and the Department of Corrections ( "DOC ") which found that members of the
PDA employed by those Departments are required to file Statements of Financial
Interests ( "SFI's ") pursuant to the Ethics Act. You submitted copies of the determinations
of DPW and DOC, which are incorporated herein by reference.
In your June 5 letter pertaining to PDA members employed by DPW, you argued
inter alia, that such individuals do not fall within the statutory definition of "public
employee" because they are not "responsible for taking or recommending official action of
a non - ministerial nature with regard to "any of the five subdivisions of that definition,
including "inspecting, licensing, regulating or auditing any person" or "any other activity
where the official action has an economic impact of greater than a de minimis nature on
the interests of any person." You stated that the duties of the PDA members employed
by DPW are to serve as staff physicians for inmates in the Department and that such staff
Spear 04 -530
April 16, 2004
Page 2
physicians do not perform functions which bring them within the definition of "public
employee" as that term is defined in Section 1102 of the Ethics Act. You made nearly
identical arguments in your June 5" letter pertaining to PDA members employed by DOC.
In response to your June 5 appeal letters, you were advised that you lacked
legal standing to request an advisory on behalf of the PDA members employed by DPW
and DOC because such individuals had not authorized you to seek an advisory on their
behalf. You were requested to confirm your legal standing and to submit job
descriptions, job classification specifications, and if applicable, organizational charts for
the individuals whose conduct you were questioning.
You have most recently submitted a request for an advisory by letter dated
March 12, 2004. In your advisory request, you note that you will not be submitting any
further information as to the PDA members employed by DOC; however, you question
the status of the following eight DPW employees who have authorized you to seek an
advisory on their behalf:
1. Dr. Alex T. Thomas ( "Dr. Thomas "), Staff Psychiatrist, Allentown State Hospital.
2. Dr. Judy F. Grem ( "Dr. Grem "), Staff Physician 2, Harrisburg State Hospital.
3. Dr. Thomas R. Czarnecki ( "Dr. Czarnecki "), Staff Physician 2. It is administratively
noted that Dr. Czarnecki is employed at the Harrisburg State Hospital.
4. Dr. Ronald H. Friedman ( "Dr. Friedman "), Physician Specialist in Internal
Medicine, Norristown State Hospital.
5. Dr. Benjamin A. Corteza ( "Dr. Corteza"), Supervisory Physician, Danville State
Hospital.
6. Dr. Allen Kirk ( "Dr. Kirk "), Psychiatrist Supervisor, Harrisburg State Hospital.
7. Dr. Alan S. Franklin ( "Dr. Franklin "), Podiatrist, Norristown State Hospital.
8. Dr. J.A. Kleponis ( "Dr. Kleponis "), Dentist, Danville State Hospital.
As to the foregoing individuals, you have submitted job descriptions, which job
descriptions are incorporated herein by reference.
You state that professionals employed only by DPW's Office of Mental Health
and Substance Abuse Services ("OMHSAS") have been required by DPW to comply
with the requirement to file a Statement of Financial Interests ("SFI"). You further state
that there are currently nine institutions administered by OMHSAS: Allentown State
Hospital, Mayview State Hospital, Norristown State Hospital, Torrance State Hospital,
Warren State Hospital, and Wernersville State Hospital.
You state that not all of the physicians working at the above institutions have been
requested to submit SFI's. You further state that DPW notified your office on December
10, 2003, that the "required to file" designation "was assigned to all physicians, dentists
and psychiatrists who write prescriptions, or who are involved in any way with
recommending or determining which drugs state hospitals should purchase and use."
You state your belief that the above individuals lack the capacity to do what
OMHSAS has described and, in any event, such a function would not, under the
applicable law and regulations, trigger an obligation to file an SFI.
Discussion: The Ethics Act defines the term "public employee" as follows:
Spear 04 -530
April 16, 2004
Page 3
65 Pa.C.S.
The
employee"
§ 1102. 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.
The term shall not include individuals who are employed by
this Commonwealth or any political subdivision thereof in
teaching as distinguished from administrative duties.
§ 1102.
Regulations of the State Ethics Commission similarly define the term "public
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 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 recommen-
dations.
(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.
Spear 04 -530
April 16, 2004
Page 4
(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.
(B) Law clerks, court criers, court reporters, probation
officers, security guards and writ servers.
(C) School teachers and clerks of the schools.
51 Pa. Code § 11.1.
Status as a "public employee" 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, Phillips v. State Ethics Commission, 470
A.2d 659 (Pa. Commw. Ct. 1984); and l�mmau 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.
Spear 04 -530
April 16, 2004
Page 5
Having set forth the relevant provisions of the Ethics Act and the State Ethics
Commission Regulations, the job descriptions for each of the individuals enumerated
above shall now be reviewed.
First, with regard to Dr. Thomas, in applying the definition of "public employee"
and the related regulatory criteria to the functions of his position as a Staff Psychiatrist
at Allentown State Hospital, the necessary conclusion is that he is not to be considered
a "public employee" as that term is defined in the Ethics Act. Based upon an objective
review, Dr. Thomas is not responsible for taking or recommending official action of a
non - ministerial nature with regard to any of the five categories set forth in the Ethics
Act's definition of the term "public employee." Dr. Thomas' work is performed "under
the general direction of a higher level psychiatrist for clinical supervision or other
administrative supervisor for administrative issues and is reviewed for conformance to
current, accepted psychiatric and medical principles and techniques through staff
conferences, case report observation and during performance, and evaluation of
results." Thus, Dr. Thomas is not subject to the disclosure requirements of the Ethics
Act, and he is not required to file Statements of Financial Interests.
The only provisions of the Ethics Act which apply to Dr. Thomas are Sections
1103(b) and 1103(c) which apply to everyone. For your information, Sections 1103(b)
and 1103(c) of the Ethics Act provide in part that no person shall offer to a public
official /public employee anything of monetary value and no public official /public
employee shall solicit or accept anything of monetary value based upon the
understanding that the vote, official action, or judgment of the public official /public
employee would be influenced thereby. Reference is made to these provisions of the
law not to imply that there has been or will be any transgression thereof but merely to
provide a complete response to the question presented.
Second, as to Dr. Grem and Dr. Czarnecki, in their capacities as Staff Physicians
2 at Harrisburg State Hospital, they have 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 Act, 65 Pa.C.S. § 1102. Specifically, Drs. Grem and Czarnecki have the
power and duty to generally perform work with limited or no professional supervision. In
addition, Drs. Grem and Czarnecki make medical decisions regarding admissions or
referrals of patients; recommend referral of patients to medical specialists or to other
health care facilities; oversee the operation of a clinic by assigning and reviewing work
of staff which may include lower level physicians or other professional or nonprofessional
staff; order supplies; and participate in the formulation of policies and procedures of
medical care in accordance with appropriate accreditation, certification and regulatory
authorities. These activities would also meet the criteria for determining Drs. Grem and
Czarnecki's statuses as public employees under the Regulations of the State Ethics
Commission, specifically at 51 Pa. Code § 11.1, "public employee," subparagraph (ii).
Third, as to Dr. Friedman, in his capacity as a Physician Specialist in Internal
Medicine at Norristown State Hospital, he has 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 Act, 65 Pa.C.S. § 1102. Specifically, Dr. Friedman has the power to
perform work independently. In addition, Dr. Friedman is authorized to provide
comprehensive consultations in the medical specialty of internal medicine by updating the
previous diagnosis /medical treatments and examining and prescribing an appropriate
course of medical care and treatment; make medical decisions and referrals of patients/
individuals; and assign duties to lower level professional and /or nonprofessional direct
care staff and review completed work for general adequacy and compliance with
instructions. These activities would also meet the criteria for determining Dr. Friedman's
status as a public employee under the Regulations of the State Ethics Commission,
specifically at 51 Pa. Code § 11.1, "public employee," subparagraph (ii).
Fourth, as to Dr. Corteza, in his capacity as a Supervisory Physician at Danville
State Hospital, he has the ability to take or recommend official action with respect to
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April 16, 2004
Page 6
subparagraph (5) within the definition of "public employee" as set forth in the Ethics Act,
65 Pa.C.S. § 1102. Specifically, Dr. Corteza has the power to perform professional
medical and supervisory work in the care and treatment of patients /individuals with a
physical or mental illness, injury and /or developmental disability; supervise staff
physicians or physician specialists and interns, and direct the issuance of standing
orders for nursing and interdisciplinary direct care and treatment staff to implement the
prescribed medical regime; establish work schedules and assign, direct and evaluate
the work performed by staff physicians or physician specialists and interns to assure
efficient and adequate medical coverage; supervise and participate in the examination
of patients /individuals to diagnose disease, illness, injuries or disabilities, and assume
responsibility for their subsequent medical care and treatment; refer patients /individuals
requiring health care services not available on site to appropriate health care resources
for treatment; receives grievances and complaints, conduct initial investigation into
causes and conditions, discuss with employee and resolve or recommend resolution to
grievances or complaints; approve leave, schedule personnel and authorize or assign
overtime; and supervise the preparation of reports and maintenance of medical records.
These activities would also meet the criteria for determining Dr. Corteza's status as a
public employee under the Regulations of the State Ethics Commission, specifically at
51 Pa. Code § 11.1, "public employee," subparagraph (ii).
Fifth, as to Dr. Kirk, in his capacity as a Psychiatrist Supervisor at Harrisburg State
Hospital, he has 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 Act,
65 Pa.C.S. 1102. Specifically, as a Psychiatrist Supervisor, Dr. Kirk has the power to
perform professional medical and supervisory work in the field of psychiatry or child
psychiatry. Dr. Kirk is authorized to supervise the psychiatric care and treatment of
patients in a component of a state hospital or community psychiatric program; participate
in developing and coordinating policies and procedures related to psychiatric services;
develop operational procedures pertinent to the conduct of psychiatric treatment
programs within assigned area(s); supervise staff psychiatrists, staff physicians, and /or
resident physicians; prepare and sign employee performance evaluations; interview
prospective employees and recommend employee selection or rank applicants in terms of
preferability of employment; approve leave, schedule work assignments, and investigate
and resolve or recommend solution to grievances or complaints; and review reports of
subordinate staff. These activities would also meet the criteria for determining Dr. Kirk's
status as a public employee under the Regulations of the State Ethics Commission,
specifically at 51 Pa. Code § 11.1, "public employee," subparagraph (ii).
Sixth, as to Dr. Franklin, in his capacity as a Podiatrist at Norristown State
Hospital, he has 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 Act,
65 Pa.C.S. § 1102. Specifically, Dr. Franklin has the power to perform work
independently in accordance with professional standards; makes appropriate referrals for
care and treatment, as necessary; orders various diagnostic procedures; and prescribes
medications and treatments. These activities would also meet the criteria for determining
Dr. Kirk's status as a public employee under the Regulations of the State Ethics
Commission, specifically at 51 Pa. Code § 11.1, "public employee," subparagraph (ii).
Last, as to Dr. Kleponis, in his capacity as a Dentist at Danville State Hospital, he
has 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 Act, 65 Pa.C.S. §
1102. Specifically, as a Dentist, Dr. Kleponis's work includes the supervision of a dental
clinic and its subordinate nonprofessional staff. Dr. Kleponis is authorized to provide
coordination with hospital staff for contract vendors for patient, client or inmate referrals
for patient, client or inmate referrals for dental treatments, including the evaluating of
need and payment of contracted services; participate in the formulation of dental clinic
policies and procedures in the areas of patient services and worksite environment, such
as sanitation and universal precautions; provide input into dental clinic's capital
equipment and personnel needs; order necessary supplies and equipment; and
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April 16, 2004
Page 7
supervise dental hygienists, technicians, assistants and /or clerical staff by completing
performance evaluations, processing leave requests and grievance /disciplinary
activities. These activities would also meet the criteria for determining Dr. Kirk's status
as a public employee under the Regulations of the State Ethics Commission,
specifically at 51 Pa. Code § 11.1, "public employee," subparagraph (ii).
Based upon the above judicial directives, the rovisions of the Ethics Act, the State
Ethics Commission Regulations, and the opinions of the State Ethics Commission, in light
of the duties and responsibilities of Drs. Grem, Czarnecki, Friedman, Corteza, Kirk,
Franklin, and Kleponis, the necessary conclusion is that such individuals are a "public
employees" subject to the financial reporting and disclosure requirements of the Ethics Act.
Conclusion: In Dr. Thomas' capacity as a Staff Psychiatrist at the Allentown
State Hospital, he is not to be considered a ' public employee' as that term is defined by
the Public Official and Employee Ethics Act ('Ethics Act "). Accordingly, in that capacity,
Dr. Thomas is not subject to the disclosure requirements of the Ethics Act and he is not
required to file Statements of Financial Interests. Sections 1103(b) and 1103(c) of the
Ethics Act apply to everyone.
Drs. Grem, Czarnecki, Friedman, Corteza, Kirk, Franklin, and Kleponis are
"public employees" in their respective capacities as delineated above, and are subject to
the Public Official and Employee Ethics Act and the Regulations of the State Ethics
Commission; accordingly, in their respective capacities, they must file a Statement of
Financial Interests each year in which they hold their aforesaid positions and the year
following their termination of such service.
If Drs. Grem, Czarnecki, Friedman, Corteza, Kirk, Franklin, and Kleponis have not
already done so, they must file a Statement of Financial Interests within 30 days of this
Advice.
Pursuant to Section 1107(11), an 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, provided 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.
Sincerely,
Vincent J. Dopko
Chief Counsel