HomeMy WebLinkAbout06-005 BuenaventuraDr. M. P. Buenaventura
13 Windsor Way
Camp Hill, PA 17011 -1752
Dear Dr. Buenaventura:
I. ISSUE:
OPINION OF THE COMMISSION
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Paul M. Henry
Raquel K. Bergen
Nicholas A. Colafella
Reverend Scott Pilarz
DATE DECIDED: 5/31/06
DATE MAILED: 6/12/06
06 -005
This Opinion is issued in response to your Financial Disclosure Appeal Form dated
April 19, 2006, received April 24, 2006, which is being treated as a request for an advisory
opinion from the State Ethics Commission.
Whether a Staff Psychiatrist employed by the Commonwealth of Pennsylvania
Department of Public Welfare under Job Code 37500 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 Regulations of the State Ethics Commission, 51 Pa. Code §
11.1 et seq., and particularly, the requirements for filing a Statement of Financial Interests
each year the position is held and the year following termination of such service.
II. FACTUAL BASIS FOR DETERMINATION:
You have submitted a Financial Disclosure Appeal Form seeking a determination as
to whether, in your former capacity as a Staff Psychiatrist employed by the Commonwealth
of Pennsylvania Department of Public Welfare (DPW) under Job Code 37500, you were a
"public employee" subject to the Ethics Act and Regulations of this Commission and
particularly, the requirements for filing Statements of Financial Interests.
It is noted that this Commission received your Financial Disclosure Appeal Form
prior to the May 1, 2006, filing deadline applicable to current and former public officials
and public employees required to file the Statement of Financial Interests form for calendar
Buenaventura, 06 -005
June 12, 2006
Page 2
year 2005.
It is further noted that your Financial Disclosure Appeal Form does not indicate the
date you terminated service as a Staff Psychiatrist for DPW. However, given the timing of
your appeal, it shall be assumed that your departure from DPW was sufficiently recent
such that if, as a Staff Psychiatrist for DPW, you were a public employee subject to the
Ethics Act, you would now be required to file a Statement of Financial Interests form for
calendar year 2005 as a former public employee.
As for your status, you present the following arguments in support of your view that
as a Staff Psychiatrist for DPW, you were not a public employee subject to the
requirements for filing Statements of Financial Interests:
Position duties & responsibilities do not meet the
definition of a public employee because I was not responsible
for taking or recommending official action of a non - ministerial
nature with regard to contracting or procurement,
administering or monitoring grants or subsidies, planning or
zoning, 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. I did not have authority to make final decisions. I
did not have authority to forward or stop recommendations
from being sent to the person or body with the authority to
make final decisions. I did not prepare or supervise the
preparation of final recommendations, did not make final
technical recommendations or did not have authority to affect
any organizations.
I have [sic] a supervisor who was on site all the time
who made the decisions & recommendations.
April 19, 2006, Financial Disclosure Appeal Form of Dr. Buenaventura, Section III.
In addition to your Financial Disclosure Appeal Form, you have submitted copies of
the position description and job classification specifications for your former position as a
Staff Psychiatrist with DPW, both of which documents are incorporated herein by
reference. Per the position description, your former duties and responsibilities included the
following:
• Responsibility 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;
• Examining patients to determine the presence of mental illness, obtaining medical
histories, diagnosing illness and prescribing and carrying out the course of
treatment;
• Making ward rounds and checking on the care and progress of treatment of
patients;
• Administering or directing the administration of treatments using somatic, group, or
milieu therapy and other psychotherapeutic methods and medications;
• Conferring with and advising members of the medical staff and allied hospital
personnel, agencies, relatives and other interested persons on the care, treatment
and prognosis of patients;
Buenaventura, 06 -005
June 12, 2006
Page 3
• Serving 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;
• Formulating the psychiatric component of the treatment plan, including goals and
objectives for individual patients as appropriate;
• Preparing comprehensive diagnostic, progress evaluation, and prognostic status
reports on individual patients;
• Directing and instructing psychiatric residents, medical students, nurses, and other
professional and non - professional staff in the care and treatment of mentally ill patients;
• Attending and participating in staff conferences for the discussion of the diagnosis,
treatment, and discharge of patients;
• Testifying as an expert psychiatric witness in legal proceedings regarding patients;
and
• Reviewing reports of patients' laboratory tests to determine levels and effectiveness
of medications.
June 2004 Position Description of Buenaventura, Position Number 00117353, at 1 -2.
The job classification specifications document for your former position as a Staff
Psychiatrist with DPW includes duties and responsibilities that are similar to those set forth
in your position description. However, there are a few noteworthy differences between the
two documents.
First, the position description states that your duties /responsibilities included
admission and discharge procedures for mentally ill patients. June 2004 Position
Description of Buenaventura, Position Number 00117353, at 1. In contrast, the job
classification specifications do not specifically mention any involvement as to admission
procedures and only mention discharge of patients in the context of
attendance /participation at staff conferences for the discussion of the diagnosis, treatment
or discharge of patients. Job Classification Specifications for Job Code 37500, at 1 -2.
Second, the position description states that the Staff Psychiatrist is supervised and
evaluated by a designated Psychiatrist Supervisor or by the Chief of Clinical Services, MH,
but further states that "[t]he 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."
June 2004 Position Description of Buenaventura, Position Number 00117353, at 1 -2. In
contrast, the job classification specifications document, while referencing "full professional
responsibility for the diagnosis, determination of treatment methods and leadership in the
implementation of treatment plans," further states:
Work is performed under 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 during performance, and evaluation of
results.
Job Classification Specifications for Job Code 37500, at 1.
Buenaventura, 06 -005
June 12, 2006
Page 4
Having summarized the above factual submissions, at this juncture we take
administrative notice of the following facts.
This is the first instance in which this Commission has considered the question of
whether a Staff Psychiatrist employed by DPW is a public employee subject to the Ethics
Act. This Commission's Chief Counsel has considered the question on two prior
occasions, specifically in Spear, Advice 04 -530 and Keffer, Advice 04 -553. Those Advices
of Counsel, which are not binding upon us, reached conflicting results, apparently due to
the particular information submitted by the respective requesters.
Advices of Counsel as well as Opinions of this Commission are issued based upon
the factual information submitted by the requester. 65 Pa. C. S. §§ 1107(10) -(11); see also,
51 Pa. Code §§ 13.1(b)(5), 13.2(k). It is the duty of the requester to submit all of the
material facts pertaining to the advisory request. Id. An advisory only affords a defense to
the extent the requester has truthfully disclosed all of the material facts. See, 65 Pa.C.S.
§§ 1107(10) -(11); 51 Pa. Code § 13.2(k). This Commission's Regulations specifically
direct that requesters are to submit the nature and duties of the subject's office or job,
including the subject's job description. 51 Pa. Code § 13.1(b)(4).
With regard to Spear, Advice 04 -530, the requester, Samuel L. Spear, Esquire,
initially wrote in June 2003 requesting an advisory as to the status under the Ethics Act of
numerous physicians employed by the Commonwealth of Pennsylvania. In responding to
the initial request letter, Chief Counsel informed Mr. Spear that Mr. Spear needed to: (1)
establish his standing to submit the advisory request as to each physician about whom he
was inquiring; and (2) submit job descriptions, job classification specifications, and if
applicable, organizational charts for such individuals. (June 10, 2003, letter from Chief
Counsel to Spear). Nine months later, by letter dated March 12, 2004, Mr. Spear renewed
contact with Chief Counsel, submitting job classification specifications but not position
descriptions for various individuals holding various positions, including Dr. Alex T.
Thomas, a Staff Psychiatrist at Allentown State Hospital. (It is noted that although Spear,
Advice 04 -530 refers to the submitted documentation as job descriptions, the
documentation was in fact limited to job classification specifications.) In issuing Spear,
Advice 04 -530 based upon the information that had been submitted, Chief Counsel
concluded that as a Staff Psychiatrist at Allentown State Hospital, Dr. Thomas would not
be considered a "public employee" subject to the requirements for filing Statements of
Financial Interests pursuant to the Ethics Act. The following language quoted from the
Advice reflects that the determination as to Dr. Thomas was based upon an implication in
the job classification specifications that at his level, Dr. Thomas did not have the authority
to take or recommend official action of a non - ministerial nature:
Spear, Advice 04 -530 at 5.
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.
Buenaventura, 06 -005
June 12, 2006
Page 5
Subsequently, by letter dated May 17, 2004, Attorney Spear appealed Spear,
Advice 04 -530, limiting the appeal to the status of certain individuals excluding Dr. Thomas
who had also been subjects of the Advice.
During the pendency of the Spear appeal, Thomas J. Burk, Program Office
Representative of DPW's Office of Mental Health and Substance Abuse Services
("OMHSAS "), submitted written and verbal arguments to this Commission (summarized in
Spear, Opinion 04 -011) in support of the position of OMHSAS that Dr. Thomas was a
public employee subject to the financial disclosure requirements of the Ethics Act. Mr.
Burk noted that: (1) 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; (2) Dr. Thomas had the authority to prescribe indicated "treatment orders,"
including autonomy to prescribe medication to patients without interference from his
supervisor; (3) there is a high cost to state hospitals, and consequently, to Pennsylvania
taxpayers, of prescribed medications for patients in state hospitals; (4) there is an
economic impact upon the Commonwealth resulting from the exercise of the aforesaid
authority to prescribe medications and to direct treatment; (5) drug companies
aggressively market their medications; and (6) there is a need to ensure that every check
and balance is in place to hold the prescribing Commonwealth employees accountable.
While we noted Mr. Burk's arguments, we ultimately determined that the appeal by
other individuals whose status had been addressed in Spear, Advice 04 -530 could not
force an unwanted appeal upon Dr. Thomas. Because the issue of Dr. Thomas' status
under the Ethics Act was not properly before us, we did not review it at that time. See,
Spear, Opinion 04 -011 at 3 -5. However, we noted that as Dr. Thomas' employer, DPW
was free to amend any inaccuracies in his job description and to seek further review by this
Commission in a proper procedural posture. Id. at 5. We further noted that amendment of
a job description may result in a change in status under the Ethics Act. Id.
Meanwhile, on May 25, 2004 — following the issuance of Spear, Advice 04 -530, but
prior to this Commission's determination that an unwanted appeal could not be imposed
upon Dr. Thomas in the Spear matter —Chief Counsel issued an Advice of Counsel
regarding the status of Rosemary M. Keffer, a Staff Psychiatrist at Harrisburg State
Hospital. In Keffer, Advice 04 -553, based upon Dr. Keffer's submitted position description,
Chief Counsel determined that as a Staff Psychiatrist with Harrisburg State Hospital, Dr.
Keffer was a public employee subject to the Ethics Act and the requirements for filing
Statements of Financial Interests pursuant to the Ethics Act. The Advice's summary of Dr.
Keffer's duties and responsibilities noted that per the position description, "[t]he 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." Keffer, Advice 04 -553 at 2.
With the above historical background and the existence of two conflicting Advices of
Counsel regarding the status of Staff Psychiatrists employed by DPW, the instant matter is
now before this Commission for disposition. It is noted that in the instant matter, you have
submitted both your position description and job classification specifications, with your
position description being virtually identical to the position description previously submitted
by Dr. Keffer, and your job classification specifications being virtually identical to those
previously submitted by Attorney Spear as to Dr. Thomas.
By letter dated May 11, 2006, you were notified of the date, time and location of the
May 31, 2006, public meeting at which your request would be considered. You did not
appear at the meeting.
Peter Garcia, Esquire, Assistant Counsel of DPW, appeared at the May 31, 2006,
public meeting of this Commission and offered commentary on behalf of DPW. Mr. Garcia
informed this Commission of a more recent version of the position description for DPW
Buenaventura, 06 -005
June 12, 2006
Page 6
Staff Psychiatrists than the version you submitted. Mr. Garcia stated that in or about
December 2004, following the issuance of Spear, Opinion 04 -011, DPW changed the
position description for the DPW Staff Psychiatrist to state that the Staff Psychiatrist is
responsible for the overall treatment of patients and has full authority to make medication
selections appropriate for treatment. Mr. Garcia noted that medication is a significant
portion of patient treatment and comes at a very significant cost to the Commonwealth. Mr.
Garcia stated that the revised Staff Psychiatrist position descriptions would have been
issued in early 2005.
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 requester based upon the
facts that the requester has submitted. In issuing the advisory based upon the facts that
the requester 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 requester 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 requester has truthfully disclosed all of the material facts.
It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics
Act, an opinion /advice may be given only as to prospective (future) conduct. If the activity
in question has already occurred, this Commission may not issue an opinion /advice but
any person may then submit a signed and sworn complaint, which will be investigated by
this Commission if there are allegations of Ethics Act violations by a person who is subject
to the Ethics Act. To the extent you have inquired as to conduct that has already occurred,
such past conduct may not be addressed in the context of an advisory opinion. However,
to the extent you have inquired as to future conduct, your inquiry may, and shall be
addressed.
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.
Buenaventura, 06 -005
June 12, 2006
Page 7
The Regulations of this 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.
(G) The individual makes final technical recommen-
dations.
(H) The individual's recommendations or actions are
an inherent and recurring part of his position.
(1) 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.
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(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.
In order to be a "public employee" subject to the Ethics Act, an individual must stand
in an employer - employee relationship with the Commonwealth or a political subdivision of
the Commonwealth. Ver Ellen, Opinion 03 -005. Additionally, status as a "public
employee" subject to the Ethics Act is determined by an objective test, which applies the
statutory and regulatory definitions 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, Phillips v. State Ethics Commission, 470 A.2d 659
(Pa. Commw. Ct. 1984); Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982); Eiben,
Opinion 04 -002; 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.
The first portion of the statutory definition of "public employee" includes individuals
with authority to take or recommend official action of a nonministerial nature. 65 Pa.C.S. §
1102. Likewise, the regulatory criteria for determining status as a public employee, as set
forth in 51 Pa. Code § 11.1( "public employee ")(ii), include not only individuals with
authority to make final decisions but also individuals with authority to forward or stop
recommendations from being sent to final decision - makers; individuals who prepare or
supervise the preparation of final recommendations; and individuals who make final
technical recommendations.
As a Staff Psychiatrist for DPW, you were responsible for diagnosing mental illness
and caring for and treating mentally ill patients. You were not limited to making
recommendations, but rather, you made decisions regarding diagnosis, treatment and
discharge planning for patients. You were responsible for formulating the psychiatric
component of treatment plans, determining treatment methods, and providing leadership in
the implementation of treatment plans. You served as treatment team director with
responsibility for directing and coordinating team members in the implementation of
patients' comprehensive individual treatment plans. You prescribed and carried out
courses of treatment, administering treatments or directing the administration of treatments
Buenaventura, 06 -005
June 12, 2006
Page 9
by others. Such treatments included somatic, group, or milieu therapy and other
psychotherapeutic methods and medications.
The necessary conclusion is that as a Staff Psychiatrist for DPW, your authority
included responsibility for taking or recommending official action of a nonministerial nature
with regard to categories (1) and (5) of the Ethics Act's definition of "public employee,"
specifically, "contracting or procurement" and 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. This conclusion is based upon your authority to diagnose
mental illness, resulting in the admission and treatment of patients within a State hospital,
and to make decisions regarding treatments for mentally ill patients, resulting in the
procurement of treatments such as particular medications prescribed by you. Such actions
would clearly have a significant economic impact upon the interests of any person," which
would include Pennsylvania taxpayers and drug companies.
With your former position description definitively establishing that as a Staff
Psychiatrist for DPW, you were a public employee subject to the Ethics Act, any nuances
between the language of your former position description and yourformerjob classification
specifications are legally irrelevant. Furthermore, while the language of the position
description is more clear than the language of the job classification specifications as to the
level of authority of the Staff Psychiatrist, we find that both documents establish that a Staff
Psychiatrist for DPW under Job Code 37500 would be considered a "public employee"
subject to the Ethics Act and Regulations of this Commission and particularly the
requirements for filing a Statement of Financial Interests each year the position is held and
the year following termination of such service.
Based upon the above, we hold that as a Staff Psychiatrist for DPW, you were a
public employee subject to the provisions of the Ethics Act and specifically the
requirements for filing a Statement of Financial Interests each year you held the position
and the year after leaving the position. This official ruling of this Commission supersedes
the ruling of Chief Counsel in Spear, Advice of Counsel 04 -530 as to the status under the
Ethics Act of a Staff Psychiatrist for DPW under Job Code 37500. Therefore, in light of our
ruling in the instant matter, the portion of Spear, Advice of Counsel 04 -530 pertaining to
the status under the Ethics Act of a Staff Psychiatrist for DPW under Job Code 37500 has
no precedential effect.
We note that our review of this matter has been based upon the documents that you
have submitted. However, the language that, according to Mr. Garcia, has recently been
added to the position description for DPW Staff Psychiatrists would have the effect of
further supporting our decision in this matter.
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. Specifically not addressed herein is the applicability of the
Governor's Code of Conduct.
IV. CONCLUSION:
A Staff Psychiatrist employed by the Commonwealth of Pennsylvania Department of
Public Welfare (DPW) under Job Code 37500 is a "public employee" as that term is
defined by the Public Official and Employee Ethics Act ( "Ethics Act "). Accordingly, such a
Staff Psychiatrist is subject to the financial disclosure requirements of the Ethics Act and is
required to file a Statement of Financial Interests each year the position is held and the
year following termination of service in the position. This official ruling of this Commission
supersedes the ruling of Chief Counsel in Spear, Advice of Counsel 04 -530 as to the
status under the Ethics Act of a Staff Psychiatrist for DPW under Job Code 37500. In light
Buenaventura, 06 -005
June 12, 2006
Page 10
of our ruling in the instant matter, the portion of Spear, Advice of Counsel 04 -530
pertaining to the status under the Ethics Act of a Staff Psychiatrist for DPW under Job
Code 37500 has no precedential effect.
If the former Staff Psychiatrist requesting this advisory Opinion left the employment
of DPW in 2005 and has not already filed a Statement of Financial Interests for calendar
year 2005 as a former public employee, she must do so within 30 days of the date of
mailing of this Opinion.
Act.
The propriety of the proposed conduct has only been addressed under the Ethics
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