HomeMy WebLinkAbout96-561 BellockSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
June 3, 1996
Edward Bellock, P.E.
304 East Main Street
Roaring Spring, PA 16673
Re: Township Engineer; Public Official; FIS
Dear Mr. Bellock:
96 -561
This responds to your undated letter received May 2, 1996, in which you
requested advice from the State Ethics Commission.
Issue: You ask whether in your capacity as a Township Engineer for Taylor
Township in Blair County, Pennsylvania, you are to be considered a public official or
public employee as defined in the Public Official and Employee Ethics Law, and
therefore, whether you are required to file a Statement of Financial Interests.
Facts: You question whether, as Township Engineer for Taylor Township in Blair
County, Pennsylvania, you are a public official /public employee as defined in the Ethics
Law and the regulations of this Commission. Specifically, you state that your
assignments have been for deriving estimated costs for projects and grants, review of
subdivision ordinances before enactment, advising supervisors of DEP procedures,
review of major subdivisions and commercial developments in regard to existing
ordinances and engineering practice, and determining weight limits to post on
Township roads. It is your belief that you would be exempt from the FIS filing
requirement because your position is advisory in nature. You state that you are neither
elected nor are you an employee of the Township. You have a contract with the
Township which provides for hourly billing on an as- needed basis. Payments for
calendar year 1995 were Tess than $ 1,000.
Discussion: There is no question that as an individual who has been appointed
Township Engineer for Taylor Township in Blair County, Pennsylvania, you are a public
official /public employee subject to the Ethics Law. The terms "public official" and
"public employee" are defined in the Ethics Law as follows:
Section 2. 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 the State or any political subdivision thereof,
Beliock, 96 -561
June 3, 1996
Page 2
65 P.S. §402.
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.
"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.
"Public employee" shall not include individuals who are
employed by the State or any political subdivision thereof in
teaching as distinguished from administrative duties.
The regulations of the State Ethics Commission similarly define the term "public
official" as above with the additional following criteria:
(i) The following criteria will be used to determine if the
exception in this paragraph is applicable:
(A) The body will be deemed to have the power to expend
public funds if the body may commit funds or may otherwise make
payment of monies, enter into contracts, invest funds held in
reserves, make loans or grants, borrow money, issue bonds,
employ staff, purchase, lease, acquire or sell real or personal
property without the consent or approval of the governing body
and the effect of the power to expend public funds has a greater
than de minimis economic impact on the interest of a person.
(B) The body will be deemed to have the authority to
otherwise exercise the power of the Commonwealth or a political
subdivision if one of the following exists:
Bellock, 96 -561
June 3, 1996
Page 3
(I) The body makes binding decisions or orders adjudicating
substantive issues which are appealable to a body or person other
than the governing authority.
(II) The body exercises a basic power of government and
performs essential governmental functions.
(III) The governing authority is bound by statute or ordinance
to accept and enforce the rulings of the body.
(IV) The body may compel the governing authority to act in
accordance with the body's decisions or restrain the governing
authority from acting contrary to the body's decisions.
(V) The body makes independent decisions which are
effective without approval of the governing authority.
(VI) The body may adopt, amend and repeal resolutions,
rules, regulations or ordinances.
(VII) The body has the power of eminent domain or
condemnation.
(VIII) The enabling legislation of the body indicates that the
body is .established for exercising public powers of the
Commonwealth or a political subdivision.
(ii) The term does not include judges and inspectors of
elections, notary publics and political party officers.
(iii) The term generally includes persons in the following
offices:
(A) Incumbents of offices filled by nomination of the
Governor and confirmation of the Senate.
(B) Heads of executive, legislative and independent
agencies, boards and commissions.
(C) Members of agencies, boards and commissions
appointed by the General Assembly or its officers.
(D) Persons appointed to positions designated as officers
by the Commonwealth or its political subdivisions.
(E) Members of municipal, industrial development, housing,
parking and similar authorities.
(F) Members of zoning hearing boards and similar quasi -
judicial bodies.
Bellock, 96 -561
June 3, 1996
Page 4
51 Pa. Code § 1 1.1.
(G) Members of the public bodies meeting the criteria in
paragraph (i)(A).
The State Ethics Commission Regulations define the term "public employee" as
follows:
Section 1.1. Definitions.
Public employe - --
(i) The term includes an individual:
(A) Who is employed by the Commonwealth or a
political subdivision and who is responsible for taking or
recommending official action of a nonministerial nature with
regard to:
(I) Contracting or procurement.
(II) Administering or monitoring grants or
subsidies.
(III) Planning or zoning.
(IV) Inspecting, licensing, regulating or auditing a
person.
(V) An activity where the official action has
greater than a de minimis economic impact.
(B) who meets the criteria of either subclause (I) or (II):
(1) The individual is:
( -a -) A person who normally performs his
responsibility in the field without on -site
supervision.
( -b -) The immediate supervisor of a person
who normally performs his responsibility in the
field without on -site supervision.
( -c -) The supervisor of a highest level field
office.
(II) The individual is a person:
( -a -) who:
Bellock, 96 -561
June 3, 1996
Page 5
( -1 -) Has the authority to make final
decisions.
( -2 -) Has the authority to forward or
stop recommendations from being sent
to the person or body with the authority
to make final decisions.
( -3 -) Prepares or supervises the
preparation of final recommendations.
( -4 -) Makes the final technical
recommendations.
( -b -) whose recommendations or actions:
( -1 -) Are an inherent and recurring part
of his position.
( -2 -) Affect organizations other than
his own organization.
(ii) The term does not include individuals who are employed by
the Commonwealth or a political subdivision of the Commonwealth in
teaching as distinguished from administrative duties.
(iii) Persons in the positions listed in subparagraphs
(A) -(F) are generally considered public employees.
(A) Executive and special directors or
assistants reporting directly to the agency
head or governing body.
(B) Commonwealth bureau director, division
chiefs, or heads of equivalent organization elements
and other governmental body department heads.
(C) Staff attorneys engaged in representing
the department, agency, or other governmental
bodies before the public.
(D) Solicitors, engineers, managers, and secretary-
treasurers acting as managers, police chiefs, chief clerks,
chief purchasing agents, grant and contract managers,
housing and building inspectors, sewer enforcement officers
and zoning officers in governmental bodies.
(E) Court administrators, assistants for
fiscal affairs and deputies for the minor judiciary.
(F) School business managers and principals.
Bellock, 96 -561
June 3, 1996
Page 6
(iv) Persons in the positions listed in subparagraphs (A)-
(C) are generally not considered public employes.
(A) City clerks, other clerical staff, road masters,
secretaries, police officers, welfare case workers,
maintenance workers, construction workers, detectives,
equipment operators and recreation directors.
(B) Law clerks, court criers, court reporters,
probation officers, security guards and writ servers.
(C) School teachers and clerk of the schools.
51 Pa. Code §1.1 (Emphasis added).
In reviewing your question, the Commonwealth Court in its ruling in Phillips v.
State Ethics Commission, 79 Pa.Commw. 491, 470 A.2d 659 (1984), directs that
coverage under the Ethics Act be construed broadly, rather than narrowly, and that
exclusions from the Ethics Act be narrowly construed. An objective test is used which
focuses on the job itself and not on the individual incumbent in the position, the
variable functions of the position, or the manner in which a particular individual
occupying a position may carry out those functions.
Taylor Township is a Township of the Second Class. The Second Class
Township Code provides that the Supervisors may appoint a Township Engineer, who
serves at the pleasure of the Supervisors. §1201, Act 60 of 1995. The duties of a
Second Class Township Engineer are statutorily provided as follows:
Section 1202. Engineer's Duties; Preparation of Plans. -- The
township engineer shall perform duties as the board of supervisors may
direct for the construction, reconstruction, maintenance and repair of
streets, roads, pavements, sanitary sewers, bridges, culverts and other
engineering work. The township engineer shall prepare plans,
specifications and estimates of the work undertaken by the township and
furnish the board of supervisors with reports, information or estimates on
any township engineering work or on questions submitted by the board
of supervisors.
§1202, Act 60 of 1995. The township engineer is also responsible for providing
certifications of the date of commencement and of completion of certain municipal
improvements. § 1203, Act 60 of 1995. (See former sections at 53 P.S. §§65586,
65587).
As a Second Class Township Engineer, you are appointed by a governmental
body, to perform statutorily - provided duties. The advisory board exception does not
apply to you as an individual who serves as a Township Engineer. Furthermore, your
duties fall directly within the parameters set forth in the definition of "public
employee." Under these circumstances and given your duties and responsibilities as
outlined above, the necessary conclusion is that you are a public official /public
employee subject to the Ethics Law.
BeHock, 96 -561
June 3, 1996
Page 7
Conclusion: You are to be considered a public official /public employee in your
capacity as Township Engineer for Taylor Township in Blair County, Pennsylvania.
Accordingly, you must file a Statement of Financial Interests for each year in which
you hold the position outlined above and for the year following your termination of this
service. If you have not already done so, a Statement of Financial Interests must be
filed within 30 days of this Advice.
Pursuant to Section 7(11), 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 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.
rely,
erko
Vincent J. Dopko
Chief Counsel