HomeMy WebLinkAbout04-553 KefferRosemary M. Keffer, Staff Psychiatrist
Harrisburg State Hospital
Cameron and Maclay Streets
P.O. Box 61260
Harrisburg, PA 17105
Dear Ms. Keffer:
ADVICE OF COUNSEL
May 25, 2004
Re: Public Employee; FIS; Staff Psychiatrist; Harrisburg State Hospital.
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04 -553
This responds to your Financial Interest Disclosure Appeal dated April 14, 2004,
which will be treated as a request for advice from the State Ethics Commission.
Issue: Whether as a staff psychiatrist with the Harrisburg State Hospital,
i inafter Hospital, you 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 seek a determination as to whether, in your capacity as a staff
ps with the Hospital, ou are a "public employee" subject to the Ethics Act and
the Regulations of the State Ethics Commission. See, 65 Pa.C.S. §1102; 51 Pa. Code
11.1. You specifically question whether you are required to file Statements of
Financial Interests.
You have supplied a copy of your job description which will be incorporated
herein by reference. Your duties and responsibilities include the following:
"The Staff Psychiatrist is responsible for the care and treatment of mentally ill patients
in a designated service to include admission and discharge procedures, determination of
treatment methods, and leadership in the implementation of treatment plans.
The Staff Psychiatrist is supervised and evaluated by the designated Psychiatrist
Supervisor who is under the direction of the Chief of Clinical Services, MH, or is directly
supervised by the Chief of Clinical Services, MH.
Keffer, 04 -553
May 25, 2004
Page 2
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- Examines patients to determine the presence of mental illness, obtains medical
histories, diagnoses illness and prescribes and carries out the course of treatment.
- Makes ward rounds and checks on the care and progress of treatment of patients.
- Administers or directs the administration of treatments using somatic, group, or
milieu therapy and other psychotherapeutic methods and medications.
- Confers with and advises members of the medical staff and allied hospital
personnel, agencies, relatives and other interested persons on the care, treatment
and prognosis of patients.
- Serves as treatment team director responsible for the direction and coordination of
team members from various hospital disciplines in the implementation of patients'
comprehensive individual treatment plans.
- Formulates the psychiatric component of the treatment plan, including goals and
objectives for individual patients as appropriate.
- Prepares comprehensive diagnostic, progress evaluation, and prognostic status
reports on individual patients.
- Directs and instructs psychiatric residents, medical students, nurses, other professional
and non - professional staff in the care and treatment of mentally ill patients.
- Attends and participates in staff conferences for the discussion of the diagnosis,
treatment, and discharge of patients.
- Testifies as an expert psychiatric witness in legal proceedings regarding patients.
Reviews reports of patients' laboratory tests to determine levels and effectiveness of
medications.
- Maintains professional competency by attending and participating in in- service
training sessions and Continuing Medical Education in order to provide patients with
current treatment methods.
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The incumbent of this position makes decisions regarding diagnosis, treatment and
discharge planning for patients in this hospital, in accordance with her license to
practice medicine and the clinical privileges granted at this hospital."
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
Keffer, 04 -553
May 25, 2004
Page 3
65 Pa.C.S.
The
employee"
(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.
(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.
Keffer, 04 -553
May 25, 2004
Page 4
(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 I�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.
Based upon the above judicial directives, the provisions of the Ethics Act, the
State Ethics Commission Regulations, and the opinions of the State Ethics
Commission, in light of your duties and responsibilities, the necessary conclusion is that
you are a "public employee" subject to the financial reporting and disclosure
requirements of the Ethics Act.
It is clear that in your capacity as a staff psychiatrist, you 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. Factors in the job
description which establish that you engage in activities where the official action has an
Keffer, 04 -553
May 25, 2004
Page 5
economic impact of greater than de minimis nature on the interest of any person include
but are not limited to the following: diagnosing illnesses; prescribing and carrying out a
course of treatment; administering or directing the administration of treatments; serving
as the treatment team director responsible for the direction and coordination of
individualized treatment plans; directing and instructing psychiatric residents, medical
students, nurses and other professionals as to the treatment and care of patients;
testifying as an expert psychiatric witness at legal proceedings regarding patients and
making decisions regarding diagnosis, treatment, and discharge as to patients. In
following the objective test and enunciated by Commonwealth Court where coverage is
determined based upon what is set forth in the job description rather than any limitations
as to the actual job performance, you are a public employee as that term is defined
under the Ethics Act and the regulations of this Commission. These activities meet the
criteria for determining your status as a public employee under the Regulations of the
State Ethics Commission, specifically at 51 Pa. Code § 11.1, "public employee,"
subparagraph (ii). Therefore, you are a "public employee" subject to the Ethics Act and
you are required to file Statements of Financial Interests pursuant to the Ethics Act.
Conclusion: In your capacity as a staff psychiatrist with the Harrisburg State
Hospital, you are a "public employee" subject to the Public Official and Employee Ethics
Act and the Regulations of the State Ethics Commission. Accordingly, you must file a
Statement of Financial Interests each year in which you hold the aforesaid position and
the year following your termination of such service.
If you have not already done so, a Statement of Financial Interests must be filed
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