Loading...
HomeMy WebLinkAbout00-540 MillerSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL March 14, 2000 Daniel L. Miller, P.E. Project Manager BCM Engineers 777 Penn Center Boulevard, Suite 200 00 -540 Pittsburgh, PA 15235 Re: Public Official; FIS; Appointed; Engineer; Municipal Authority. Dear Mr. Miller: This responds to your letter dated February 9, 2000, by which you requested advice from the State Ethics Commission. Issue: Whether an engineer /project manager who is employed by an engineering firm that is appointed by municipal authorities is required to file Statements of Financial Interests. Facts: You are employed as an Engineer /Project Manager by ATC Associates, Inc., BCM Engineers Division (BCM). BCM is an engineering firm that provides engineering, environmental, and contruction management services to both the private and public sectors and performs work for many water, sewer and municipal authorities. In a telephone conversation on March 14, 2000, you clarified that BCM was, in fact, appointed by the various municipal authorities to serve as engineer. You personally act as BCM's representative to a water authority, sewer authority, and joint water and sewer authority. You typically attend each u br ny meeting to: (1) keep apprised of the authority's current affairs and issues; back any work assignments that BCM may be given; and (3) occasionally provide technical expertise. You state that you are not personally employed by the public sector. Further, you have no voting capacity. Finally, you do not provide any governmental service. e the Statement of In light of the above, you believe that filing il constitutes a gross oss Financial Interests (FIS form). You feel g the FIS form opposed to other employee invasion of your privacy. You question why you, as opp any at BCM who works on a project assignment or attends a meeting in your absence, have to file t rm. the You state municipal that your orr role is to act as a regular liaison between your employ 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 requestor based upon the facts which the requestor has submitted. In issuing the FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Miller, 00 -540 March 14, 2000 Page 2 advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor 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 requestor has truthfully disclosed all of the material facts. The term "public official" is defined in the Ethics Act as follows: Section 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. 65 Pa.C.S. §1102. The term "person" is defined in the Ethics Act as follows: Section 1102. Definitions. "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. The regulations of the State Ethics Commission similarly define the term "public official" and set forth the following additional criteria that are used to determine whether the advisory board exception applies: (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: Miller, 00 -540 March 14, 2000 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. (!I) The body overnmentalfunctions. power of government and performs essential g (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 ofSenate. offices eby nomination of the Governor and confirmation (B) Heads of executive, legislative and independent agencies, boards and commissions. (C) Members of appointed by the General As embly obrtsr commissions PP 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. (G) Members of the public bodies meeting the criteria in paragraph (i)(A). Miller, 00 -540 March 14, 2000 Page 4 51 Pa. Code §11.1. Status as a "public official" subject to the Ethics Act is determined by applying the above definition and criteria to the position held. The focus is necessarily upon the position itself, and not upon the individual incumbent in the position, the variable functions of the position, or the manner in which a particular individual occupying the position may carry out those functions. See, Philips v. State Ethics Commission, 470 A.2d 659 (Pa. Commw. Ct. 1984); Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982). Furthermore, 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, Phillips, supra. Based upon the above judicial directives, the provisions of the Ethics Act, the State Ethics Commission Regulations, and the opinions of the State Ethics Commission, the necessary conclusion is that BCM is a "public official" as that term is defined in the Ethics Act and the regulations of the State Ethics Commission. First, BCM is the appointed engineer for the municipal authorities. Second, BCM is a "person" as that term is defined in the Ethics Act. Since BCM is designated as the pursuant to Section 15.2 authorities, the FIS form (h) of the of the State Ethics Commission which P provides: §15.2. Public officials and public employes. (h) If a law firm or engineering firm is designated solicitor or engineer, the persons primarily responsible for providing such services in the firm are responsible for filing a Statement of Financial Interests. 51 Pa. Code §15.2(h). Conclusion: As the appointed engineer to various municipal authorities, BCM is a "public official" subject to the Public Official and Employee Ethics Act and the Regulations of the State Ethics Commission. Because you are the person at BCM who is primarily responsible for providing services to the municipal authorities, you are responsible for filing a Statement of Financial Interests. Accordingly, you must file a Statement of Financial Interests for each year in which you hold the position of Engineer /Project Manager and for the year following your termination of such 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 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 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. Miller, 00 -540 March 14, 2000 Page 5 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. erely, Vincent 7. Dopko Chief Counsel