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HomeMy WebLinkAbout84-562 McNeilDonald McNeil III, P.E. Donald M. McNeil & Associates, Inc. 100 McKre Building 1097 North Avenue Pittsburgh, PA 15209 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 April 30, 1984 ADVICE OF COUNSEL 8.4 -562 RE: Traffic Engineering Consultant firm, filing a Statement of Financial Interests Dear Mr. McNeil: This responds to your letter of March 26, 1984, in which you requested an Advice from the State Ethics Commission. Issue: You ask whether your firm which has been retained as a Traffic Engineering Consultant firm by various municipalities is to be considered a "public employee" for purposes of filing a Statement of Financial Interests under the State Ethics Act. Facts: You indicate that you are the President of a corporation known as Donald M. McNeil and Associates, Incorporated, located in Pittsburgh, Pennsylvania. This firm is a consultant engineering firm. As such, your firm has been retained as a traffic engineering consultant to various public parking authorities in the Commonwealth including authorities in Erie, Butler, Greensburg, McKeesport, New Kensington, Altoona, and St. Marys, Pennsylvania. As the traffic engineering consultant to these authorities, your firm is called upon to render suggestions and evaluations relating to the public parking systems and the maintenance of same on behalf of these authorities. In many instances, your firm is retained in compliance with the trust indentures of these authorities which require that they evaluate their financial position from year to year and you are called upon to advise the authorities as to rate adjustments that may be required for the future parking programs of the authority. This fuction may involve a visual inspection of an authority's facilities so that maintenance programs can be estimated and repairs coordinated for the yearly budget. In most instances, the municipal engineer is responsible for these yearly detailed inspections and his report, coupled with your suggestions and Donald McNeil III, P.E. April 30, 1984 Page 2 recommendations, are presented to the authority for instructions as to implementation of any suggestions that your firm might make. We assume that you are not appointed as the general engineer for an authority, but are retained specifically for this particular project or study as needed. Discussion: The State Ethics Act requires that public employees and officials shall file Statements of Financial Interests with the governing authority of the political subdivision by which he is employed no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. See 65 P.S. 404(a). Whether an engineering firm such as yours, employed by a political subdivision, in this case the authorities that you contract with, is a "public employee" for purposes of the Ethics Act depends on the nature of your firms employment, the duties and responsibilities of your firm and the application of these concepts under the Ethics Act. When an engineer is brought in for a particular job because of its unique expertise in a particular area and is not the regular consulting engineering firm employed by the political subdivision to handle the general engineering work and to provide overall supervision of the entity's engineering needs, the engineering firm is not generally considered to be a "public employee ". If this is the case, no member of the firm or person hired by that firm is required by the State Ethics Act to furnish a Statement of Financial Interests as set forth above. If, on the other hand, a firm is retained as the engineering firm to provide service to an authority or political subdivision with respect to the general engineering needs of the authority, they may be considered a "public employee ". See Bryan, 80 -014 and Hemsley, 80 -034. After reviewing the information that you have provided, however, it appears that your firm is hired on a project basis, as needed, and is not serving as the general engineering firm for these authorities. Your firm is hired to perform a particular job or task because of its unique expertise in a particular area. Thus, under the facts as you present them, neither your firm nor any member thereof should be considered a "public employee" because of its relationship and service as traffic engineering consultant to these parking authorities. Compare Cashman, 82 -534. Conclusion: Under the facts as you have presented them, neither your firm nor any member thereof should be considered a "public employee" as a result of this service to these authorities. Donald McNeil III, P.E. April 30, 1984 Page 3 Pursuant to Section 7(9)(ii), this 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, providing the requestor 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will -be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. CW /rdp Sincerely, Sandra S. Chi s General Counsel