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HomeMy WebLinkAbout04-011 SpearI. ISSUE: OPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Donald M. McCurdy Michael J. Healey Paul M. Henry Raquel K. Bergen DATE DECIDED: 6/9/04 DATE MAILED: 6/22/04 04 -011 Samuel L. Spear, Esquire Spear, Wilderman, Borish, Endy, Spear & 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; Appeal of Advice. Dear Mr. Spear: This Opinion is issued in response to the appeal of Advice of Counsel, 04 -530, which was issued on April 16, 2004. Whether various medical /dental professionals employed with the Department 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. II. FACTUAL BASIS FOR DETERMINATION: By letter dated May 17, 2004, you appealed Advice of Counsel, 04 -530 issued April 16, 2004. Spear, 04 -011 June 22, 2004 Page 2 In the initial letter requesting an advisory, you presented the following facts and submissions. Your law firm represents 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, in June 2003 you submitted two separate letters to this Commission appealing separate determinations by the Department of Public Welfare ( "DPW ") and the Department of Corrections ( "DOC ") that members of the PDA employed by DPW and DOC are required to file Statements of Financial Interests pursuant to the Ethics Act. It was your contention that such PDA members would not fall within the Ethics Act's definition of "public employee." 65 Pa.C.S. § 1102. By letter dated June 10, 2003, Chief Counsel informed you that in order for your inquiry to be considered, you would have to: (1) confirm your legal standing to submit the inquiry; and (2) submit job descriptions, job classification specifications, and if applicable, organizational charts for the individuals whose conduct was in question. You submitted a subsequent request for an advisory dated March 12, 2004, wherein you questioned the status of the following eight DPW employees who 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 submitted job classification specifications that you identified as job descriptions for the above individuals. The job descriptions were incorporated by reference in the Advice. The job descriptions are likewise incorporated herein by reference. You noted that you would not be submitting any further information as to the PDA members employed by DOC. With regard to DPW, you stated that only professionals employed by DPW's Office of Mental Health and Substance Abuse Services ("OM ) have been required by DPW to file Statements of Financial Interests pursuant to the Ethics Act. You further stated that not all of the physicians working at OMHSAS- administered institutions have been asked to file the forms. Rather, DPW notified you that "the 'required to file' designation was assigned to all physicians, dentists and psychiatrists who write prescriptions, or who are involved in any wa with recommending or determining which drugs state hospitals should purchase and use. (Spear letter of March 12, 2004, at 3). Spear, 04 -011 June 22, 2004 Page 3 Based upon the submitted information, you asserted that Drs. Thomas, Grem, Czarnecki, Friedman, Corteza, Kirk, Franklin, and Kleponis are not "public employees" responsible for filing Statements of Financial Interests pursuant to the Ethics Act. Advice of Counsel, 04 -530 determined that all of the professionals enumerated above, with the exception of Dr. Thomas, are "public employees" subject to the Ethics Act and the Regulations of this Commission, and particularly the requirements for filing Statements of Financial Interests. The Advice determined that Drs. Grem, Czarnecki, Friedman, Corteza, Kirk, Franklin, and Kleponis, in their respective capacities, have the authority to take or recommend official action of a nonministerial nature that satisfies subparagraph (5) of the statutory definition of "public employee" (pertaining to "any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person" (65 Pa.C.S. § 1102)), as well as the criteria set forth in this Commission's Regulations for determining status as a public employee. 51 Pa. Code § 11.1. By letter dated May 17, 2004, you appealed a portion of Advice of Counsel, 04 -530, specifically with respect to the Advice's determination that Drs. Grem, Czarnecki, Friedman, Corteza, Kirk, Franklin, and Kleponis are "public employees" required to file Statements of Financial Interests pursuant to the Ethics Act. You stated that you were not appealing the Advice's determination that Dr. Thomas, in his capacity as a Staff Psychiatrist, is not a "public employee" within the meaning of the Ethics Act. By letter dated May 20, 2004, you were notified of the date, time and location of the public meeting at which your request would be considered. On June 3, 2004, this Commission received a submission from Thomas J. Burk, Program Office Representative of OM HSAS. Per the submission, OM HSAS agrees with the Advice of Counsel's determination that Drs. Grem, Czarnecki, Friedman, Corteza, Kirk, Franklin, and Kleponis are "public employees" required to file Statements of Financial Interests pursuant to the Ethics Act. However, OMHSAS disagrees with the Advice of Counsel's determination that Staff Psychiatrist Dr. Thomas is not a public employee subject to the financial disclosure requirements of the Ethics Act. The submission states that Dr. Thomas has the authority to prescribe indicated "treatment orders," including autonomy to prescribe medication to patients without interference from his supervisor. Additionally, the submission states that per the job description, a Staff Psychiatrist is a "Team Leader" with full responsibility and authority to make all decisions to provide psychiatric care to assigned patients. Noting the high cost to state hospitals, and consequently, to Pennsylvania taxpayers, of prescribed medications for patients in state hospitals, and the need to ensure that every check and balance is in place to hold the prescribing employees accountable, OMHSAS requests that this Commission issue a formal finding that Dr. Thomas, as a Staff Psychiatrist, is a public employee subject to the Ethics Act and the requirements for filing Statements of Financial Interests under the Ethics Act. At the public meeting on June 9, 2004, you and DPW representatives appeared and offered commentary, which may be fairly summarized as follows. On the procedural issue of whether this Commission may review the status of Dr. Thomas, you argued that: (1) DPW is neither an appellant nor an intervenor and lacks standing in this proceeding; and (2) this Commission lacks jurisdiction to consider the status of Dr. Thomas because Dr. Thomas did not appeal the Advice of Counsel. DPW Assistant Counsel Peter Garcia argued that: (1) DPW did not have notice in order to file a timely intervention; and (2) this Commission has discretion to review Dr. Thomas's status through its authority to conduct a de novo review of the entire Advice of Counsel and to correct any errors. With regard to the substantive issues, you argued that: Spear, 04 -011 June 22, 2004 Page 4 (1) Physicians who perform general medical work in the state institutions do not fall within the scope of the "public employee" definition; (2) Although the supervisory positions include duties that would probably bring such employees within the Ethics Act's definition of "public employee," this Commission should nevertheless determine that such employees are not covered by the Ethics Act because DPW did not require persons in such positions to file Statements of Financial Interests until approximately two years ago; (3) This Commission's Regulations do not list these positions among examples of positions typically covered or not covered by the Ethics Act; (4) Persons in these positions are insulted by the suggestion that their acceptance of a sandwich or tickets to a sporting event from a drug company would impact upon their prescription decisions; (5) Persons in these positions are subject to discipline by the Commonwealth as their employer and by licensing boards as to professional oaths /codes; and (6) If the Commonwealth does not want persons in these positions to accept anything from drug companies, the Commonwealth should issue a rule to that effect, rather than require persons in these positions to file Statements of Financial Interests. Thomas Burk of OMHSAS argued that: Persons in all of these positions have free reign to prescribe medications and to direct treatment; The exercise of such authority by persons in these positions has a large economic impact upon the Commonwealth; and Drug companies have become more aggressive in trying to push their medications, and persons in these positions should be required to provide disclosure by filing Statements of Financial Interests. III. DISCUSSION: It is initially noted that pursuant to Sections 1107(10) and 1107 (11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requestor based upon the facts that the requestor has submitted. In issuing the advisory based upon the facts that the requestor has submitted, this Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Our review of this matter is de novo: "De novo review entails, as the term suggests, full consideration of the case anew. The reviewing body is in effect substituted for the prior decision maker and redecides the case." D'Arciprete v. D'Arciprete, 323 Pa. Super. 430, 470 A.2d 995 (1984) (citations omitted). See also, Hayes v. Donohue Designerkitchen, Inc., 2003 Pa. Super. 84, 818 A.2d 1287 (2003); Commonwealth v. Krut, 311 Pa. Super. 64, 457 A.2d 114 (1983); In re Audit of School District, 354 Pa. 232, 47 A.2d 292 (1946). We shall first address the procedural issue, specifically, the issue of whether we may Spear, 04 -011 June 22, 2004 Page 5 review the status of Dr. Thomas, who did not appeal from the Advice of Counsel. Although an appeal from an Advice of Counsel is subject to de novo review, we consider the instant matter to essentially consist of multiple requests for advice consolidated and presented through you. Thus, the appeal by some such individuals does not force an unwanted appeal upon Dr. Thomas. Because the issue of Dr. Thomas' status under the Ethics Act is not properly before us, we shall not review it at this time. However, we would note that as Dr. Thomas employer, DPW is free to amend any inaccuracies in his job description and to seek further review by this Commission in a proper procedural posture. It is generally noted that amendment of ajob description may result in a change in status under the Ethics Act. The following provisions of the Ethics Act are pertinent to our review of the seven individuals who appealed from the Advice of Counsel. 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 Spear, 04 -011 June 22, 2004 Page 6 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. (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 theminorjudiciary. (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 Spear, 04 -011 June 22, 2004 Page 7 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 an objective test. The objective test applies the above definition and criteria to the powers and duties of the position itself. Typically, the powers and duties of the position are established by objective sources that define the position, such as the job description, job classification specifications, and organizational chart. Thus, the objective test considers what an individual has the authority to do in a given position, rather than the variable functions that the individual may actually perform in that position. See, Philips v. State Ethics Commission, 470 A.2d 659 (Pa. Commw. Ct. 1984); Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982); Shienvold, Opinion 04 -001; Shearer, Opinion 03 -011. 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. Applying the objective test, we shall now review the job descriptions for Drs. Grem, Czarnecki, Friedman, Corteza, Kirk, Franklin, and Kleponis. First, with respect to Dr. Grem and Dr. Czarnecki, it is clear that in their capacities as Staff Physicians 2, 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. This conclusion is supported by the following authority /responsibilities set forth in the job description: overseeing the clinical operations in a mental health hospital, mental retardation center or youth development center infirmary; participating on teams in formulating individual treatment program plans; assigning and reviewing the work of physicians and /or other professional and nonprofessional nursing care staff; making medical decisions regarding admissions or referrals of patients; prescribing medical treatment; ordering supplies; recommending referral of patients to medical specialists or to other health care facilities; and participating in the formulation of policies and procedures of medical care in accordance with appropriate accreditation, certification and regulatory authorities. While we need go no further to conclude that these individuals are public employees subject to the Ethics Act, we would parenthetically note that given the authority of Staff Physicians 2 to order supplies, subparagraph (1) of the definition of "public employee" (pertaining to contracting or procurement) would also be satisfied. The authority /responsibilities of Staff Physicians 2 would also meet the criteria for determining the status of these individuals as public employees under the Regulations of this Commission, specifically at 51 Pa. Code, § 11.1, "public employee," subparagraph (ii). Second, as to Dr. Friedman, a Physician Specialist in Internal Medicine, we determine that Dr. Friedman's job description establishes that 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. Examples of work that reflect that Dr. Friedman engages in activities where his official action has an economic impact of greater than a de minimis nature on the interests of person(s) include the following: assigning and reviewing the work of other physicians, interns, registered nurses, nursing assistants, physician assistants and other professional and non - professional personnel; examining and prescribing an appropriate course of medical care and treatment; prescribing necessary medical treatments; and making medical decisions and referrals of patients /individuals. The foregoing activities establish Dr. Friedman's status as a "public employee" under the definition of the term at Section 1102 of the Ethics Act as well as the Regulations of this Commission at 51 Pa. Code § 11.1, "public employee," subparagraph (ii). Third, with regard to Dr. Corteza, a Supervisory Physician, we determine that the job description of Dr. Corteza establishes that he has the ability to take or recommend official Spear, 04 -011 June 22, 2004 Page 8 action with respect to subparagraph (5) within the definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. § 1102. This conclusion is supported by the following authority /responsibilities set forth in the job description: supervising staff physicians or physician specialists and interns, and directing the issuance of standing orders for nursing and interdisciplinary direct care and treatment staff to implement the prescribed medical regime; assigning and reviewing the work of other physicians, interns, registered nurses and other professional and non - professional direct care and treatment personnel; establishing work schedules and assigning, directing, and evaluating the work performed by staff physicians or physician specialists and interns; examining and admitting new patients, making medical decisions and referrals on committed patients; referring patients /individuals requiring health care services not available on site to appropriate health care resources for treatment, and monitoring and evaluating medical services provided; receiving grievances and complaints, conducting initial investigation into causes and conditions, discussing with employee and resolving or recommending resolution to grievances or complaints; authorizing or assigning overtime; and supervising the preparation of reports and maintenance of medical records. The foregoing activities establish Dr. Corteza's status as a "public employee" under the definition of the term at Section 1102 of the Ethics Act as well as the Regulations of this Commission at 51 Pa. Code § 11.1, "public employee," subparagraph (ii). Fourth, with regard to Dr. Kirk, based upon a review of his job description, we determine that in his capacity as a Psychiatrist Supervisor, 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. This conclusion is supported by the following authority /responsibilities set forth in the job description: supervising the psychiatric care and treatment of patients in a component of a state hospital or community psychiatric program; directing the treatment team, making the psychiatric diagnosis and leading the treatment for an assigned group of patients; developing operational procedures; supervising, directing and instructing staff psychiatrists, physicians, resident physicians, nurses, medical students and other professional and non - professional staff in the care and treatment of the mentally ill; administering or directing the administration of treatment; participating in developing and coordinating policies and procedures related to psychiatric services; developing operational procedures pertinent to the conduct of psychiatric treatment programs within the assigned area(s); supervising staff psychiatrists, staff physicians, and /or resident physicians; preparing and signing employee performance evaluations; interviewing prospective employees and recommending employee selection or ranking applicants in terms of preferability of employment; investigating and resolving or recommending solutions to grievances or complaints; reviewing and identifying training needs of staff and initiating training recommendations; reviewing reports of subordinate staff and preparing and maintaining necessary administrative and clinical records and reports; and testifying as an expert psychiatric witness in legal proceedings regarding patients. The foregoing activities establish Dr. Kirk's status as a 'public employee" under the definition of the term at Section 1102 of the Ethics Act as well as the Regulations of this Commission at 51 Pa. Code § 11.1, "public employee," subparagraph (ii). Fifth, with regard to Dr. Franklin, a Podiatrist, we determine based upon his job description that 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. This conclusion is supported by the following authority /responsibilities set forth in the job description: making referrals for care and treatment; ordering various diagnostic procedures; prescribing a full range of medications; prescribing treatments and corrective footwear; and preparing and submitting medical billing documents for reimbursements of services provided. The foregoing activities establish Dr. Franklin's status as a "public employee" under the definition of the term at Section 1102 of the Ethics Act as well as the Regulations of this Commission at 51 Pa. Code § 11.1, "public employee," subparagraph (u). Sixth, with regard to Dr. Kleponis, a Dentist, we determine based upon a review of his Spear, 04 -011 June 22, 2004 Page 9 job description that 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. This conclusion is supported by the following authority /responsibilities set forth in the job description: supervising a dental clinic and its subordinate nonprofessional staff; participating in the formulation of dental clinic policies and procedures in the areas of patient services and worksite environment; providing input into the dental clinic's capital equipment and personnel needs; ordering necessary supplies and equipment; and supervising dental hygienists, technicians, assistants and /or clerical staff specifically with regard to completing performance evaluations and processing grievance /disciplinary activities, as appropriate. We parenthetically note that given the authority of Dentists to provide input into the dental clinic's capital equipment and personnel needs and to order necessary supplies and equipment, subparagraph (1) of the definition of "public employee" (pertaining to contracting or procurement) would also be satisfied. The foregoing activities establish Dr. Kleponis' status as a "public employee" under the definition of the term at Section 1102 of the Ethics Act as well as the Regulations of this Commission at 51 Pa. Code § 11.1, "public employee," subparagraph (ii). Thus, in applying the objective test approved by the Commonwealth Court of Pennsylvania, whereby coverage is determined based upon objective sources that define the position, such as the job description and job classification specifications, rather than claimed actual job performance, we determine that Advice of Counsel, 04 -530 correctly determined that Drs. Grem, Czarnecki, Friedman, Corteza, Kirk, Franklin, and Kleponis are "public employees" as that term is defined under the Ethics Act and the Regulations of this Commission. Therefore, as "public employees," Drs. Grem, Czarnecki, Friedman, Corteza, Kirk, Franklin, and Kleponis are subject to the Ethics Act and are required to file Statements of Financial Interests pursuant to the Ethics Act. We reject your arguments to the contrary. First, as detailed above, the job descriptions clearly establish that the positions held by Drs. Grem, Czarnecki, Friedman, Corteza, Kirk, Franklin, and Kleponis fall squarely within the statutory definition and regulatory criteria for determining status as a "public employee" subject to the Ethics Act. Second, your assertion that DPW has not required individuals in such positions to file the forms until recently is irrelevant. This Commission, not DPW, is the administrative agency with the authority to interpret, administer and enforce the Ethics Act. This Commission, not DPW, is the administrative agency with the statutory authority to determine status under the Ethics Act. The fact that until recently, these individuals have not been asked to comply with a statutory requirement that they are presumed to know does not operate to shield them from their duty to comply. As for the lists of examples of covered and non - covered positions in this Commission's Regulations, they are just that —a few examples. No credible argument may be made that they are anything else. As for other ethical requirements applicable to various professions, you are advised that the Ethics Act prevails and is not superseded by oaths or codes of ethics pertaining to medical /dental professions. See, 65 Pa.C.S. § 1112. Finally, as for the purported "insult" of requiring public employees in medical /dental professions to comply with the Ethics Act, we need only remind you that public service is a public trust, and the public trust is paramount over perceived privileges or private sensitivities. 530. Based upon the above analysis, we deny the appeal and affirm Advice of Counsel, 04- Spear, 04 -011 June 22, 2004 Page 10 Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. IV. CONCLUSION: Certain individuals employed by the Commonwealth of Pennsylvania, Department of Public Welfare at various state hospitals in the positions of Staff Physician 2, Physician Specialist in Internal Medicine, Supervisory Physician, Psychiatrist Supervisor, Podiatrist, and Dentist, who, based upon their job descriptions, are responsible for taking or recommending official action of a nonministerial nature that satisfies subparagraph (5) of the statutory definition of "public employee" (pertaining to "any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person" (65 Pa.C.S. § 1102)), are "public employees" subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act'), 65 Pa. C.S. § 1101 et seq. Accordingly, such individuals must file a Statement of Financial Interests each year in which they hold their positions and the year following their termination of such service. If such individuals have not already done so, they must file a Statement of Financial Interests within 30 days of the mailing of this Opinion. The appeal is denied. Advice of Counsel, 04 -530 is affirmed. The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). By the Commission, Louis W. Fryman Chair Commissioner Michael J. Healey concurs in part and dissents in part, concurring as to the status of the Physician Specialist in Internal Medicine, Supervisory Physician, Psychiatrist Supervisor, and Dentist as public employees subject to the Ethics Act, and dissenting as to the status of the two Staff Physician 2 positions and the Podiatrist position as public employees subject to the Ethics Act.