Requestor: Thomas B. Hayner, Esq., County Attorney County of Schenectady County Office Building 620 State Street Schenectady, N.Y. 12305-2114
Written by: James D. Cole, Assistant Attorney General in Charge of Opinions
You have asked whether several positions in your municipality have the status of public offices.
In a prior opinion of this office, we defined the characteristics of a public office as distinguished from a position of employment.
"A determination of whether an appointee is an officer subject to the provisions of section 3 of the Public Officers Law rather than an employee requires a review of the powers, duties, qualifications and other characteristics of his position. The distinction between a public office and public employment is not always clear (Matter of Dawson v Knox, 231 A.D. 490, 492 [3d Dept, 1931]). The duties of a public official involve some exercise of sovereign power while those of a public employee do not (ibid.; Matter of Haller v Carlson, 42 A.D.2d 829 [4th Dept, 1973]). A public officer is a person whose position is created, and whose powers and duties are prescribed by statute and who exercises a high degree of initiative and independent judgment (Matter of County of Suffolk v State of New York, 138 A.D.2d 815, 816 [3d Dept, 1988], affd 73 N.Y.2d 838 [1988]; Matter of Lake v Binghamton Housing Authority, 130 A.D.2d 913, 914 [3d Dept, 1987]). Other indicia of a public office are the requirement to take an oath of office or file bonds, appointments for a definite term and receipt of a commission of office or an official seal (Macrum v Hawkins, 261 N.Y. 193, 200-201 [1933])."
Op Atty Gen 90-F8.
Therefore, it is necessary to review the powers and duties of each position to determine whether the position is an office. To be an officer, it is clear that the individual must exercise sovereign powers of government. In other words, the position must be endowed with discretionary duties and the ability to make governmental decisions.
You have forwarded the job description for the positions under examination. The "Director of Prevention and Patient Services" is a position in the County Public Health Service having responsibility for planning, organizing, directing, coordinating and evaluating patient care services provided by the certified home health agency and other nursing services related to public health care programs. Among the specific duties of the position are the provision of sufficient numbers of nurses to ensure proper patient care; regulating and supervising of necessary staff; evaluation of patient care programs; evaluation of employee performance; and the development of agreements and contracts to provide department services.
The "Director of Special Clinical Services" is responsible for planning, organizing, directing, coordinating and evaluating patient care services provided in the Schenectady County Jail and other medical services in public health care programs. Among the specific duties of the position are to organize, direct and supervise health care services in the jail; assume direct supervisory responsibility for all jail medical staff activities; assume responsibility for maintenance of policies in accordance with pertinent regulations; and to communicate with corrections officers to ensure integration of medical care into jail operations.
The "Director of Community Mental Health Services" is the executive officer of the county agency responsible for the Community Mental Health Program, with responsibility for administering comprehensive programs in delivery of mental health and mental retardation services. Among the activities of the position is to identify needs for services, oversee the development of programs and evaluate compliance with program objectives; work closely with private health care facilities and non-profit agencies to provide services on a centralized basis; analyze annual budget requests from providers; review and monitor program operations for compliance with treatment plan objectives; make application for government and private funding for existing or proposed community mental health services; and direct treatment of patients in services and facilities provided by the mental health agency.
The "Deputy Director of Administration and Planning" assists the Public Health Director in the administration of all activities of the County Public Health Services. The incumbent, along with the Public Health Director, has primary administrative responsibility for the public health system. Among the specific duties of the position is to assume the responsibilities of the Public Health Director in his or her absence; assist in the administration of Schenectady County Public Health Services; establish and carry out departmental policies at the direction of the Public Health Director; and assume responsibility for the day-to-day operations of Schenectady County Public Health Services.
In our judgment the above positions should be considered public offices. The incumbents have been granted broad discretion in the making of governmental decisions with respect to the specific programs for which they have responsibility. They direct the activities of persons under their supervision and have responsibility for ensuring that services are properly provided. We believe that they exercise sovereign powers of government.
Finally, you have asked whether the position of dietician is a public office. The dietician is responsible for nutritional care of the residents at a nursing facility. The dietician exercises direct supervision over the dietary technician and a variety of support staff. Among the activities of the position are to visit residents upon admission to Glendale Nursing Home, to evaluate their present nutritional status and prescribe an appropriate diet while identifying possible eating problems, food intolerance or dislikes; establish goals for each resident in order to maintain or improve their nutritional status; visit residents at mealtime and evaluate the resident's acceptance of food items served; monitor the nutritional care of residents via Patient Care Plan Meetings which are held every three months or more frequently when necessary; and work closely with the nursing department to monitor the quality of medical care at Glendale Home.
In our judgment, this position is not a public office. While the dietician is responsible for supervision of some support staff, the primary duties of the position are to assess the nutritional needs of nursing home residents, to ensure that these needs are being met, and to coordinate dietary concerns with overall health care services. We believe that this position involves the exercise of professional responsibilities but does not represent an exercise of sovereign powers of government. Unlike the other positions, which involve the establishment and monitoring of broad programs for provision of health services, the dietician exercises professional judgment in determining the dietary needs of patients. While the position involves same supervisory responsibility, this standing alone does not, in our opinion, give the position officer status.
The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office.