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HomeMy WebLinkAbout23-538 Benner PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL June 15, 2023 To the Requester: Candace Benner 23-538 Dear Ms. Benner: This responds to your emails received June 9, 2023, and June 12, 2023, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: Whether, in your former capacity as a Registered PRN Nurse with the Pennsylvania Department of Human Services (“Department of Human Services”), you were considered a “public employee” subject to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq., such that the post-employment restrictions of Section 1103(g) of the Ethics Act — which apply to former public officials/public employees — would now be applicable to you. Brief Answer: NO. Upon review of the submitted Commonwealth position description, as a Registered PRN Nurse with the Department of Human Services, you were not considered a “public employee” subject to the provisions of the Ethics Act and the Regulations of the State Ethics Commission. Consequently, the post-employment restrictions of Section 1103(g) of the Ethics Act did not become applicable to you upon termination of your employment with the Department of Human Services. Facts: You were employed with the Department of Human Services as a Registered PRN Nurse, in which capacity you worked at the Selinsgrove Center. Your employment with the Department of Human Services ended on March 20, 2023. You seek guidance as to whether the one-year post- Benner, 23-538 June 15, 2023 Page 2 employment restrictions of Section 1103(g) of the Ethics Act became applicable to you upon termination of your Commonwealth employment. In particular,you ask whether Section 1103(g) of the Ethics Act would prohibit you from being employed at the Selinsgrove Center by a nursing agency during the first year following termination of your Commonwealth employment. You have submitted a copy of a Commonwealth position description (“Position Description”) for the position of Registered PRN Nurse with the Department of Human Services, Selinsgrove Center, which document is incorporated herein by reference. Per the Position Description, you performed as a charge nurse by directing and coordinating nursing care delivery on an assigned shift, in multiple living areas. Your job duties and responsibilities included: Setting priorities for assigned shift/area and delegating nursing unit activities; Participating in the interdisciplinary process and the development, implementation, evaluation, and modification of the comprehensive Active Treatment Plan; Attending ISP/annual reviews for those in assigned caseload and completing an annual nursing assessment packet to be presented at the ISP/annual review; Maintaining a cooperative relationship with staff from all disciplines serving the unit’s population in order to maximize communication and ensure the most comprehensive and meaningful habilitation program for each individual; Acting as a liaison to physicians, providing information and reporting observations, and assisting with examinations as needed; Completing rounds with consultants as needed and participating in special health care interventions as indicated; Following procedures established for taking, implementing, and documenting physician’s orders to ensure that medical care is being provided as ordered on assigned shift; Completing professional nursing functions, as described by Nursing Standards of Practice, for the healthcare needs of individuals in the unit; Performing related duties according to standards and target dates determined at the time of each assignment; Screening individuals daily for signs and symptoms indicating a need for change in the treatment plan and reports to the appropriate physician; Completing assessment and follow-up of any reported illnesses; Observing, interpreting, recording, and reporting the effects of pharmacological agents and therapeutic treatments; Reviewing results of diagnostic procedures/evaluations and reporting any abnormality to physician; Completing a nursing summary every 90 days on each individual in assigned caseload; Maintaining nursing responsibilities for assigned caseload in accordance with policies and procedures, applying nursing techniques required for the continued care and treatment of the individuals in assigned areas, and completing documentation timely, legibly, and in accordance with established policies and procedures; Receiving oral/written report at the beginning of shift and giving oral/written report to oncoming nurses; Benner, 23-538 June 15, 2023 Page 3 Assuring completion of 24 Hour Nursing Report on assigned shift; Communicating any changes in health status to community nursing supervisor and providing input on the Selinsgrove Center 24 Hour Report; and Making rounds with the community nursing supervisor as needed to screen for obvious health problems. Position Description, at 1-2. 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, the 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. 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”: Benner, 23-538 June 15, 2023 Page 4 (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 recommendations. (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 Benner, 23-538 June 15, 2023 Page 5 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. The following terms are relevant to your inquiry and are defined in the Ethics Act as follows: § 1102. Definitions “Ministerial action.” An action that a person performs in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of the person’s own judgment as to the desirability of the action being taken. “Nonministerial actions.” An action in which the person exercises his own judgment as to the desirability of the action taken. 65 Pa.C.S. § 1102. Status as a “public employee” subject to the Ethics Act is determined by an objective test. The objective test applies the Ethics Act’s definition of the term “public employee” and the related regulatory criteria to the powers and duties of the position itself. Typically, the powers and duties Benner, 23-538 June 15, 2023 Page 6 of the position are established by objective sources that define the position, such as the job description, job classification specifications, and organizational chart. The objective test considers what an individual has the authority to do in a given position based upon these objective sources, rather than the variable functions that the individual may actually perform in the position. See, Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion 04-002; Shienvold, Opinion 04-001; Shearer, Opinion 03-011. The Commonwealth Court of Pennsylvania has specifically considered and approved this Commission’s objective test and has directed that coverage under the Ethics Act be construed broadly and that exclusions under the Ethics Act be construed narrowly. See, Quaglia v. State Ethics Commission, 986 A.2d 974 (Pa. Cmwlth. 2010), amended by, 2010 Pa. Commw. LEXIS 8 (Pa. Cmwlth. January 5, 2010), allocatur denied, 607 Pa. 708, 4 A.3d 1056 (2010); 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; individuals who make final technical recommendations; and individuals whose recommendations are an inherent and recurring part of their positions. See, e.g., Reese/Gilliland, Opinion 05-005. Conclusion: In applying the definition of "public employee" and the related regulatory criteria to the submitted facts as to the duties of your former position, the necessary conclusion is that in your former capacity as a Registered PRN Nurse with the Department of Human Services, you were not considered a "public employee" as that term is defined in the Ethics Act. Based upon an objective review of the Position Description, you were 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.” The post-employment restrictions of Section 1103(g) of the Ethics Act apply only to former public officials/public employees: § 1103. Restricted activities (g) Former official or employee.--No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 Pa.C.S. § 1103(g). Because the duties and responsibilities of your former position would not bring you within the definition of “public employee” as set forth in the Ethics Act, Section 1103(g) of the Ethics Benner, 23-538 June 15, 2023 Page 7 Act did not become applicable to you upon termination of your employment with the Department of Human Services. Accordingly, Section 1103(g) of the Ethics Act would not restrict you with regard to being employed at the Selinsgrove Center by a nursing agency during the first year following termination of your Commonwealth employment. The only provision of the Ethics Act that applies to you is Section 1103(b), which applies to everyone. For your information, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer or give 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. 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. Pursuant to Section 1107(11) of the Ethics Act, 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 requester 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 receivedat 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. Respectfully, Bridget K. Guilfoyle, Chief Counsel