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HomeMy WebLinkAbout82-501 BaranMr. Walter Baran, Secretary Department of General Services Room 515, North Office Bldg. Harrisburg, PA 17120 Dear Secretary Baran: Mailin Address STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 January la, 1982 ADVICE OF COUNSEL 82 -501 RE: Applicability of Act 170, DGS Selections Committee This responds to your letter of January 8, 1982, in which you, as Secretary of the Department of General Services, requested advice for the State Ethics Commission. Issue: Are members of the Governor's Architect /Engineer Selection Committee public officials subject to the require - ments and restrictions established in the Ethics Act? Must Committee members file Statements of Financial Interests with the State Ethics Commission? Facts: The Architects /Engineers Selection Committee (here- inafter the Committee) of the Department of General Services, established in 1975 pursuant to the Department's powers set forth in the Administrative Code, 71 P.S. 631.1(19), is an independent board comprised of five members. The Committee provides public notice of Commonwealth non - transportation projects requiring the services of architects and engineers. The Committee selects and publicly recommends to the Depart- ment three qualified architects and /or engineers in order of its preference for each project. The Department is then obligated to select or appoint one of the recommended persons or firms to receive the contract. The Department has this duty to select one of the three architects or engineers named by the Committee by virtue of law. See 71 P.S. 631.1(19). The Committee also sets the fee to be paid to architects and engineers for the pre - planning, design and contract administration of any project, within the limits set by the Department. 4 Pa. Code 64.9. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Walter Baran, Secretary January 19,. 1982 Page 2 Members of the Selections Committee receive compen- sation for reasonable travel and other expenses incident to their work on the Committee. Members also receive a $125.00 per diem allowance. Additionally, pursuant to its enabling power granted in 71 P.S. §631.1(19), the Department of General Services has ruled that: - The members of the Committee shall be considered Commonwealth employees in the service of the Department and subject to the State Adverse Interest Act (71 P.S. 776.1 - 776.8) - The members of the Selections Committee shall file a Statement of Financial Interest for the preceding calendar year with the Department no later than May 1 of each year that they hold the position and of the year after they leave the position under the Ethics Act. See 4 Pa. Code §64.6(1) and (4). Discussion: The Ethics Act of 1978, 65 P.S. §401 et. seq., defines public official as including any: ... appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public monies, or to otherwise exercise the power of the State or any political sub- division thereof..." 65 P.S. 402 Clearly members of this Committee are "appointed" to positions within the Executive Branch of the State govern- ment. They are not merely advisory. In making formal recommendations to the Department of General Services the Committee exercises the power of the State through the Department of General Services. It also exercises the power of the State in setting the fee to be paid to architects and Mr. Walter Baran, Secretary January 19, 1982 Page 3 engineers for the pre - planning, design and contract admini- stration of any project. In addition, although the Commit- tee recommends and ranks three applicants because the Secretary is bound to accept one of the three ranked recommendations of this Committee, we must conclude that their role is other than advisory. This conclusion is further supported because the Committee, by this process, has the power to exclude applicants from the Secretary's consideration and selection. Committee members are thus public officials for the purposes of the Ethics Act. Section 4 of the Ethics Act, State Ethics Commission regulations, and decisions require public officials to file a Statement of Financial Interests with the Commission (white copy) and a copy (yellow copy) with the agency in which they serve no later than May 1 of each year that he holds such a position and a year after he leaves such a position. 65 P.S. 1404(a) and 51 Pa. Code 4.4(a). As public officials, members of the Selections Commit- tee must fulfill these requirements. However, the site of their filing would be the State Ethics Commission and the Department of General Services. This is consistent with the provisions of the Ethics Act as well as the regulations established by the State Ethics Commission and by the Department of General Services itself in 4 Pa. Code 64.6. Conclusion: Members of the Selections Committee of the Department of General Services are public officials under the Ethics Act. As public officials they must file a Statement of Financial Interests with the State Ethics Commission and a copy with the Department of General Services no later than May 1 of each year they serve and of the year after they leave such positions. 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. Mr. Walter Baran, Secretary January 15, 1982 Page 4 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 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. BF /rdp Sincerely, andra S. istianson General Co. sel