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Home My WebLink About04-547 RuschakAlyssa Cilia 22 Lobel! Drive Washington, PA 15301 Carolyn Kelly 2417 High Oak Drive Pittsburgh, PA 15220 ADVICE OF COUNSEL May 14, 2004 H. Ronald Fray 135 Pennsylvania Avenue Bridgeville, PA 15017 Thomas Ruschak 142 Adams Street Monongahela, PA 15063 04 -547 Re: Public Employee; Statement of Financial Interests ( "SFI "); Staff Pharmacist; Mayview State Hospital. Dear Ms. Cilia, Ms. Kelly, Mr. Fray, and Mr. Ruschak: This responds to your letters dated April 14, 2004, by which you collectively requested advice from the State Ethics Commission. Issue: Whether a Staff Pharmacist employed by the Department of Public Welfare at Mayview State Hospital would be considered a "public employee" 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: You are all employed by the Department of Public Welfare ( "DPW" ) as Staff �macists at Mayview State Hospital. Each of you have submitted a copy of your job description, which copy is incorporated herein by reference. All of your job descriptions contain the exact same job duties and responsibilities, some of which include reviewing and interpreting physician orders; maintaining and reviewing patient medication profile records; screening physician drug orders prior to dispensing; preparing and dispensing medications; maintaining records; visiting the Nursing Medicine Stations; performing Drug Regimen Reviews and preparing reports; and assisting in the inventory process. In identical request letters, you state the following facts. You are under the constant supervision of the Chief Pharmacist. You are in no position to approve or negotiate any service contracts or purchases for the Commonwealth. You are not directly involved in purchasing any goods or services for the Commonwealth nor do you participate in any committees involved in business decisions of the Commonwealth. Your Cilia /Fray /Kelly /Ruschak 04 -547 May 14, 2004 Page 2 financial interests have no bearing on the Commonwealth since you have no ability to influence any Commonwealth related business decisions. Based upon the foregoing, you argue that you do not meet the definition of "public official" or "public employee' as those terms are defined in the Ethics Act, and therefore, do not have to file a Statement of Financial Interests. Discussion: The Ethics Act defines the term "public employee" as follows: § 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. 65 Pa.C.S. § 1102. 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 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. Cilia /Fray /Kelly /Ruschak 04 -547 May 14, 2004 Page 3 51 Pa. Code § 11.1. (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. (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. Cilia /Fray /Kelly /Ruschak 04 -547 May 14, 2004 Page 4 In applying the definition of "public employee" and the related regulatory criteria to the functions of your position, the necessary conclusion is that in your capacity as a Staff Pharmacist at Mayview State Hospital, DPW, you are not to be considered a "public employee" as that term is defined in the Ethics Act. Based upon an objective review, you are 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." Thus, you are not subject to the disclosure requirements of the Ethics Act, and you are not required to file Statements of Financial Interests. As to the above conclusion, it is noted your job duties and responsibilities as contained in your job description are unlike those of other Commonwealth pharmacists who have been determined to fall within the definition of "public employee." See, Cwynar, Opinion 85 -023 (wherein the Commission determined that a Pharmacist in the Bureau of Utilization Review of DPW was required to file a Statement of Financial Interests where the Pharmacist was authorized to recommend and formulate policy and information relating to the Medical Assistance Program, recommend the removal of persons from the Program, and assist in developing a cost containment and control program for drugs and pharmaceuticals. See, also, Bianca, Advice of Counsel 92 -581 (wherein it was determined that aarmacist with Fairview State Hospital was required to file a Statement of Financial Interests where she was authorized to make recommendations regarding the purchase and control of new drugs and supplies, and perform the duties of the Acting Chief Pharmacists in his absence); Laichak, Advice of Counsel, 98 -560 (wherein it was determined that a former Staff Pharmacist with DPW was required to file a Statement of Financial Interests where his job responsibilities included contracting or procurement, making recommendations as to the purchase and control of new drugs and supplies, and assisting in developing drug treatment plans). The only provisions of the Ethics Act which apply to you 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. Lastly, 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. Conclusion: In your capacity as a Staff Pharmacist with Mayview State Hospital, Department of Public Welfare, you are 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, you are not subject to the disclosure requirements of the Ethics Act and you are not required to file Statements of Financial Interests. Sections 1103(b) and 1103(c) of the Ethics Act apply to everyone. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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. Cilia /Fray /Kelly /Ruschak 04 -547 May 14, 2004 Page 5 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