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Home My WebLink About81-562 DeNinnoCharles V. DeNinno 517 County Office Building Forbes Avenue - Ross Street Pittsburgh, PA 15219 Dear Mr. DeNinno: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120- April 28, 1981 ADVICE OF COUNSEL 81 -562 RE: Service Purchase Contracts, Section 3(e) Restrictions This responds to your letter of January 8, 1981, in which you requested an opinion from the Ethics Commission. Issue: In your letter you requested advice as to the restric- tions the Ethics Act imposes on a public employee who desires to work under a Service Purchase Contract. Facts: You informed us that you are currently employed by Allegheny County as a Program Manager in the Department of Engineering and Construction. The Program Manager monitors all projects in the Department of Engineering - Construction. You wish to leave employment as a Program Manager and return to work for the County as a Construction Manager. You plan to head your own corporation and work for Allegheny County on a Service Purchase Contract basis. As a Construction Manager your duties will include examining the economics of a project, holding pre- construction conferences, issuing notices to proceed, managing the construction and closing out the contract. Discussion: The Ethics Act, 65 P.S. §401 et seq., defines public employee as any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending non - ministerial official action with regard to contracting or procurement Id §402. As a program manager your duties brought you within tf ambit of the term public employee, Status as a public employee depends upon the scope of the employee's duties not upon the method of payment. As the Commission explained in its Opinion in Massiah- Jackson, 80 -036, "The Ethics Act does not by its very term or its intent... exempt individuals... solely on the bases that their relationship is based on a Service Purchase Contract." Therefore, the mere fact that you will be paid by a Service Purchase Contract does not necessarily mean that you will not remain a public employee subject to the Ethics Act. Charles V. DeNinno April 28, 1981 Page 2 In Massiah- Jackson the Commission held that "...if a person is employed in a position of public trust which could be abused, the Ethics Act would apply regardless of the formal basis (service purchase contract, employed at will, common law servant) for that relationship." This concept was upheld in similar arguments made by solicitors that they were 'indepen- dent contractors." See Ballou v. State Ethics Commission, Pa. Cmwlth. , 424 A.2d 983 (1981). Several tactors are to be considered whether you are employed in a position of public trust, including whether the work performed is identical to or similar to the work performed by full -time regular employees; whether or not a person expects to continue in such service or has a history of such service, whether or not the person is supervised by the political subdivision and whether the person assumes a relationship which implicates the public trust. Massiah-Jackson, 80 -036. Applying these factors to the situation you describe indicates that you remain subject to the Ethics Act even though your work as a Construction Manager would be performed under a Service Purchase Contract. The work you will do as Construction Manager appears substantially indentical to the work you are presently performing as a Program Manager. You have a history of working for Allegheny County and an expectation of continuing to work for the County as a Construction' Manager. The work you will do as Construction Manager is subject to the ultimate approval of the County, just as the w, ;rk you do as a Program Manager is subject to County approval; you remain under County supervision. Finally, as a Construction Manager you enjoy a position of public trust in managing expenditure of public funds on contracts and in seeing that the contract is properly performed. As a public employee you are not prohibited from entering into a Service Purchase Contract with Allegheny County valued at more than $500 so long as the contract is awarded in an open and public process. 65 P.S. §403(c). The Commission held that an open and public process is characterized by: (1) Prior public notice; and (2) prior public disclosure of all proposals considered; (3) public disclosure of the award of the contract. A reasonableness test is ern1oyed in deciding if the process meets these criteria. Tie process is open and public if a reasonable and prudent competitor of yours, interested in the position of Construction Manager, has time to avail himself of tae employment opportunity. See Howard, 70 -044. You must also remember that the Ethics Act forbids you from using your status as Project or Construction Manager to obtain financial gain other than the compensation provided by Charles V. DeNinno April 28, 1981 Page 3 law, for yourself, your family or a business with which you are associated. 65 P.S. §403(a). Nor may any person offer you anything of value, including future employment based on any understanding that your actions as Project or Construction Manager would be influenced thereby. b5 P.S. §403(b). Conclusion: You are currently a public employee subject to the Ethics Act and will remain so even though you will be paid by a Service Purchase Contract for work as Construction Manager. This is so because you will do work normally done by,regular employees, subject to County supervision and remain in a position of public trust. As a public employee you may enter into a Service Purchase Contract with the governmental body with which you are associated, Allegheny County, Department of Engineering and Construction, valued at more than $500 so long as the contract is awarded in an open and public process. Such a process provides for: (1) Prior public disclosure; and (2) prior public disclosure of all proposals considered ;. (3) public disclosure of the award of the contract. A prudent competitor of yours for the job of Construction Manager paid through Service Purchase Contract should have access to this employment opportunity. Further, you may not use your position as Project or Construction Manager or confidential information received as Project or Construction Manager to obtain financial gain for yourself, your family or a business with which you are associated. No one may offer you anything of value, including a promise of future employment, based on any understanding that your actions as Project or Construction Manager would be influenced thereby. 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 tacts 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 Charles V. DeNinno April 28, 1981 Page 4 the Commission may be scheduled and a formal Opinion from the Commission will be issued. You should make such a request or indicate your disapproval of this Advice within the next 30 days. SW /rdp Sincerely, andra General C ris ianson unsel