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HomeMy WebLinkAbout07-576 WIDMERDavid H. Widmer, P.L.S. President Widmer Engineering Inc. 806 Lincoln Place Beaver Falls, PA 15010 Dear Mr. Widmer: ADVICE OF COUNSEL August 24, 2007 07 -576 This responds to your letter dated July 19, 2007, by which you requested advice from the State Ethics Commission. Issue: Whether an engineering firm that serves various governmental bodies as an engineering consultant, borough engineer, city engineer, township engineer, or authority engineer, would in such capacities be considered a "public official" or "public employee" subject to the Public Official and Employee Ethics Act (the "Ethics Act "), 65 Pa.C.S. § 1101 et seq., and particularly, the requirements for filing Statements of Financial Interests. Facts: As President of Widmer Engineering Inc. ( "the Firm "), a Pennsylvania business corporation, you seek an advisory from the State Ethics Commission on behalf of the Firm, based upon the following submitted facts. You state that when reorganization occurs every year or every other year, various governmental bodies appoint the Firm to serve as engineering consultant, borough engineer, city engineer, authority engineer, or township engineer. For some such governmental clients the Firm does not attend any public meetings, and for other such clients the Firm is asked to attend planning commission meetings, township supervisor meetings, and other advertised public meetings. The Firm has four offices within the Commonwealth. You state that for most of the Firm's governmental clients, many different Firm employees provide professional services based upon the type of project to be worked on by the Firm. You state that for years, the Firm President completed and signed the Statements of Financial Interests that governmental clients would provide yearly to the Firm. You state that you have received conflicting information from the State Ethics Commission as to whether you /the Firm must file Statements of Financial Interests. You have submitted copies of relevant correspondence as well as a copy of Myers, Opinion 96 -004. You state that pursuant to the Regulations of the State Ethics Commission, Widmer, 07 -576 August 24, 2007 Page 2 specifically, 51 Pa. Code § 15.2(h), it would appear that where a corporation is the appointed engineer for a governmental body, the persons primarily responsible for providing such services in the firm are responsible for filing a Statement of Financial Interests. Based upon the above submitted facts, you request guidance as to whether the Firm's service in the aforesaid capacities would require the filing of Statements of Financial Interests, and if so, by whom. 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. 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. To the extent that your inquiries relate to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent that your inquiries relate to future conduct, your inquiries may and shall be addressed. Section 1104(a) of the Ethics Act provides that each public official /public employee must file a Statement of Financial Interests for the preceding calendar year, each year that the position is held and the year following termination of service in the position: § 1104. Statement of financial interests required to be filed (a) Public official or public employee. - -Each public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the commission no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee or public official shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Persons who are full -time or part -time solicitors for political subdivisions are required to file under this section. 65 Pa.C.S. § 1104(a). The term "public official" and the related term "person" are defined in the Ethics Act as follows: Widmer, 07 -576 August 24, 2007 Page 3 § 1102. Definitions "Public official." Any person elected by the public or elected or appointed by a governmental body or an appointed official in the executive, legislative or judicial branch of this Commonwealth or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. 65 Pa.C.S. § 1102 (Emphasis added). The term "public employee" is defined in the Ethics Act 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 terms "governmental body" and "political subdivision," which are contained within the above definitions, are themselves specifically defined in the Ethics Act as follows: § 1102. Definitions "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body or other establishment in the executive, legislative or judicial Widmer, 07 -576 August 24, 2007 Page 4 branch of a state, a nation or a political subdivision thereof or any agency performing a governmental function. "Political subdivision." Any county, city, borough, incorporated town, township, school district, vocational school, county institution district, and any authority, entity or body organized by the aforementioned. 65 Pa.C.S. § 1102. See also, 51 Pa. Code § 11.1 (definitions of "public official," "public employee," and "political subdivision "). 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, Philips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984). In applying the Ethics Act's definition of the term "public official," the first portion of the definition provides that a public official is a "person" (defined to include a corporation or firm) which is: (1) elected by the public; (2) elected or appointed by a governmental body; or (3) an appointed official in the executive, legislative or judicial branch of the Commonwealth of Pennsylvania or a political subdivision of the Commonwealth. Muscalus, Opinion 02 -007. When the first portion of the definition is met, status as a public official subject to the Ethics Act is established, unless the exclusion for members of purely advisory boards is applicable. Eiben, Opinion 04 -002. In order to be a "public employee" subject to the Ethics Act, one must be an "individual" and must stand in an employer- employee relationship with the Commonwealth or a political subdivision of the Commonwealth. Eiben, supra. In Myers, Opinion 96 -004, the State Ethics Commission determined that a corporate engineering firm that contractually performed engineering services for a township- -but that had not been designated as the township engineer - -would not be considered a "public employee" as defined by the Ethics Act because it was not an "individual." In the instant matter, the Firm would not be considered a "public employee" as that term is defined by the Ethics Act because the Firm is not an individual. Myers, supra. However, the Firm would be considered a "public official" subject to the Ethics Act as to each position to which it is appointed: (1) by a governmental body; or (2) within the executive, legislative or judicial branch of the Commonwealth of Pennsylvania or a political subdivision of the Commonwealth. Appointment of the Firm to the position of borough engineer, city engineer, township engineer, or authority engineer would bring the Firm within the definition of "public official" and would trigger the financial disclosure reporting requirements of the Ethics Act. As to each such position, the persons primarily responsible for providing such services in the Firm would be responsible for filing Statements of Financial Interests. 51 Pa. Code § 15.2(h). Under the submitted facts, it cannot be determined whether the Firm's service as a consulting engineer as to any particular governmental body /political subdivision would bring the Firm within the definition of "public official." Therefore, this advisory must be limited to providing the following general guidance. Where the Firm would not be appointed to a position but would only be hired to do occasional projects for a governmental body /political subdivision, the Firm would not be considered a "public official" as that term is defined by the Ethics Act. Cf., Rogers v. State Ethics Commission, 470 A.2d 1120 (Pa. Cmwlth. 1984). Under such circumstances, requirements for filing Statements of Financial Interests pursuant to the Ethics Act would not be applicable. Conclusion: Widmer Engineering Inc. ( "the Firm ") would not be considered a "public employee" as that term is defined by the Public Official and Employee Ethics Act (the "Ethics Act "), 65 Pa.C.S. § 1101 et seq., because the Firm is not an individual. The Widmer, 07 -576 August 24, 2007 Page 5 Firm would be considered a `` ublic official" subject to the Ethics Act as to each position to which it is appointed: (1) by a governmental body; or (2) within the executive, legislative or judicial branch of the Commonwealth of Pennsylvania or a political subdivision of the Commonwealth. Appointment of the Firm to the position of borough engineer, city engineer, township engineer, or authority engineer would bring the Firm within the definition of "public official" and would trigger the financial disclosure reporting requirements of the Ethics Act. As to each such position, the persons primarily responsible for providing such services in the Firm would be responsible for filing Statements of Financial Interests. Under the submitted facts, it cannot be determined whether the Firm's service as a consulting engineer as to any particular governmental body /political subdivision would bring the Firm within the definition of "public official." As general guidance, where the Firm would not be appointed to a position but would only be hired to do occasional projects for a governmental body /political subdivision, the Firm would not be considered a 'public official" subject to the financial disclosure reporting requirements of the Ethics Act. Pursuant to Section 1107(11), 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 received at 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. Sincerely, Robin M. Hittie Chief Counsel