HomeMy WebLinkAbout95-004 GromisJudy Gromis
RR2, Box 162B
McVeytown, PA 17051
Re: Public Health Nutritionist ,II; Section 3(g); Department of
Health; Former Public Employee; Public Employee; Appeal of
Advice.
Dear Ms. Gromis:
I. ISSUE:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
OPINION OF THE COMMISSION
Before: Daneen E. Reese, Chair
Austin M. Lee, Vice Chair
Roy W. Wilt
Allan M. Kluger
Boyd E. Wolff
DATE DECIDED: 05/05/95
DATE MAILED: 05/16/95
95 -004
This Opinion is issued pursuant to the appeal of Advice of
Counsel, No. 95 -520 issued March 1, 1995.
Whether a former Public Health Nutritionist II for the
Department of Health is to be considered a "public employee"
subject to the restrictions of Section 3(g) of the Public Official
and Employee Ethics Law following termination of service.
II. FACTUAL BASIS FOR DETERMINATION:
By letter dated March 15, 1995, you appealed Advice of
Counsel, 95 -520 issued March 1, 1995.
Advice of Counsel, 95 -520 concluded that you as a former
Public Health Nutritionist II for the Department of Health (DH),
were to be considered a "public employee" subject to the
representation restrictions before your former governmental body
Gromis, Judy, 95 -004
Page 2
for a period of one year following your resignation. It was also
determined that your job description included duties /powers to
"take or recommend official action of a nonministerial nature with
respect to contracting, procurement, planning, inspecting,
administering or monitoring grants, leasing, regulating, auditing
or other activities where the economic impact was greater than de
minimis on the interests of another person."
While you concede that "planning" and the very broad "other
activities" categories may apply to your situation, you state that
you did not have any other duties relating to contracting,
administering grants, or other activities of a financial nature.
Furthermore, your planning and program monitoring activities were
limited to the WIC Program, which is a federally regulated and
funded program. Your activities were directed toward improving
program efficiency and effectiveness for a program in which
participants are determined to be program eligible to receive
program benefits based upon federal regulations. Your nutrition
surveillance activities involved the collection and reporting of
program data to federal agencies, as well as activities undertaken
to ensure the adequacy of collected data.
Your annual program reviews of local agencies involved the
completion of "checklist" types of forms to determine whether
program regulations had been followed relative to assessing program
eligibility and the issuance of program benefits. The reviews did
not include audits of any financial records or expenditures.
Furthermore, you did not recommend any "corrective action" as to
program reviews in that staff within another program unit were
responsible for evaluating the reviews and recommending action
based upon the information collected.
You question the premise that your job duties had an economic
impact upon the interests of another person. Since you state that
you had no duties that involved contracting, procurement,
administering or monitoring grants, or auditing as related to the
WIC Program (or any other program), you conclude that you had no
power to take or recommend official action in the areas in which
the "public employee" restrictions would be justified.
You have requested a full Commission review of your case on
the issue of whether you should be considered a "public employee"
subject to the restrictions detailed in Advice of Counsel, 95 -520.
At the public meeting of May 5, 1995, you appeared and argued
that you were not a public employee. You stated that you had no
decision making authority in that everything you did was directed
by your superiors. Since policy making came from the federal level
and since you rewrote rather than developed that policy, you
conclude that you had no authority for policy making. You were
responsible for program data which had to be signed by your
Gromis, Judy, 95 -004
Page 3
superiors. The program reviews of local agencies you conducted
were done by utilizing a provided form. You had no authority to
take action while in the field. Although your activities might
fall under planning, you believe that you were not at a level to
make decisions which had an economic impact.
From your submitted job description, the following duties and
responsibilities are listed in part:
Proposes, develops and implements program surveys
and studies; monitors the quality of participant
information in the WIC Data System by periodically
analyzing reports; conducts annual program reviews of
local WIC agencies as well as prepares and submits
reports of findings; participates in the planning,
implementation and in ongoing operations in the nutrition
surveillance programs; provides technical assistance to
local agencies; prepares drafts of new and revised
policies and procedures; acts as the state contact person
in coordinating state and local agency participation in
WIC studies conducted by USDA; travels to local WIC
agencies to review clinic operations for compliance;
prepares and submits written reports on local agency
review findings; monitors the quality of participant
information in WIC data system and recommends corrective
action; develops and implements program surveys and
studies using the WIC participant database; and
coordinates ongoing participation in the pediatric
nutrition surveillance system.
The classification /specification for a Public Health
Nutritionist II provides in part as follows:
Professional work of an educational and consultive nature
whereby the employee is responsible for planning,
integrating and coordinating the nutritional program in
an assigned region in various fields with work performed
with considerable independence under the general
supervision of an administration or technical superior
subject to review for conformance to established
policies, techniques and procedures through conferences,
reports and analyses of results obtained.
Examples of the work performed consist of providing
technical assistance and consultant services in nutrition
or food administration; determining nutritional needs and
resources in a specified field; assisting in the
formulation of policies and standards pertaining to
nutrition services; organizing and carrying out in-
service training programs; preparing or assisting in the
preparation of educational materials; cooperating with
Gromis, Judy, 95 -004
Page 4
government agencies to coordinate the nutrition program
with other programs; supervising the field training for
graduates students; cooperating with public /private
agencies and organizations in planning and carrying out
training institutes; conducting surveys of food
administration practices, preparing reports of surveys
and making recommendations for improvement in various
areas; preparing budget estimates, food cost analysis;
reviewing therapeutic diet practices; consulting with
architects on efficient food service layouts; and
performing such other duties as is required.
III. DISCUSSION:
We must determine whether you, as a Public Health Nutritionist
II for the Department of Health (DH), are a public employee as
defined under the Ethics Law so as to be subject to Section 3(g) of
the Ethics Law as a former public employee. Since you only
challenge the Advice of Counsel on the issue of whether you were a
public employee, we shall limit our review to that specific
question.
The Ethics Law defines the term "public employee" as follows:
Section 2. 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.
"Public employee" shall not include
Gromis, Judy, 95 -004
Page 5
individuals who are employed by the State or
any political subdivision thereof in teaching
as distinguished from administrative duties.
65 P.S. 5402.
The Regulations of this Commission provide that the term
"public employee" includes:
(i) The term includes an individual who is employed
by the Commonwealth or a political subdivision and who is
responsible for taking or recommending official action of
a nonministerial nature with regard to one or more of the
following:
CA) Contracting or procurement.
(B) Administering
subsidies.
(C) Planning or zoning.
(D) Inspecting, licensing, regulating or auditing
a person.
(E) Other activities in which the official action
has greater than a de minimis economic impact.
(ii) The following criteria will be used, in part,
to determine whether an individual is within the
definition of "public employee ":
(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
level field office.
(D) The individual has
decisions.
or monitoring grants or
the supervisor of a highest
the authority to make final
(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.
Gromis, Judy, 95 -004
Page 6
(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.
Gromis, Judy, 95 -004
Page 7
51 Pa. Code §11.1.
(B) Law clerks, court criers, court reporters,
probation officers, security guards and writ servers.
(C) School teachers and clerks of the schools.
Our review of this matter must focus upon your duties and
responsibilities as set forth in your job description and
classification specification rather than upon any assertions as to
the duties actually performed. The test utilized by this
Commission in determining whether a given individual is a public
official /public employee is an objective test whereby the
controlling element is the grant of powers, duties, and
responsibilities rather than the powers, duties, or
responsibilities actually exercised. See, Phillips v. State
Ethics Commission, 79 Pa. Cmmw. Ct. 491, 470 A.2d 659 (1984), which
specifically upheld the utilization of this objective test.
Also, in reviewing your question, the Commonwealth Court in
its ruling in Phillips, supra, at page 661, directs us to construe
coverage of the Ethics Act broadly, rather than narrowly, and
conversely, directs that exclusions from the Ethics Law should be
narrowly construed. Based upon this directive and reviewing the
definition of "public official" in the statute and the regulations
and opinions of this Commission, in light of your duties and
responsibilities, we must conclude that you are a "public employee"
subject to the Ethics Law and in particular the requirements of
Section 3(g) following termination of service.
As to the statutory definition of public employee, it is clear
that your duties include planning, regulation and activities where
the official action has an economic impact of greater than a de
minimis nature on the interests of any person. As to our
Regulations, it is clear that your duties and responsibilities fall
within Section ii (A) , (E) , (H) , and (I) of the definition of public
employee.
Your assertion that you do not have an economic impact greater
than a de minimis nature on the interests of any person is simply
belied by your above responsibilities. Your assertion that you do
not have the authority to make recommendations ( "corrective
action ") is contrary to your job description in that you have the
authority to recommend official action which would clearly have an
economic impact of greater than a de minimis nature on the
interests of other persons.
Based upon the above, it is clear that as a Public Health
Nutritionist II for DH, you were a "public employee" and hence are
now a former employee subject to the restrictions of Section 3(g)
of the Ethics Law as delineated in the Advice of Counsel. Advice
Gromis, Judy, 95 -004
Page 8
of Counsel 95 -520 is affirmed.
IV. CONCLUSION:
A Public Health Nutritionist II for the Department of Health
is a "public employee" and as a former public employee is subject
to the restrictions of Section 3(g) of the Ethics Law.
Pursuant to Section 7(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.
such.
This letter is a public record and will be made available as
Finally, any person may request the Commission to reconsider
its Opinion. The reconsideration request must be received at this
Commission within fifteen days of the mailing date of this Opinion.
The person requesting reconsideration should present a detailed
explanation setting forth the reasons why the Opinion requires
reconsideration.
By the Commission,
4 Ua4U& 421W...)
Daneen E. Reese
Chair