The URL can be used to link to this page

Home My WebLink About81-006 CampJames G. Camp, Chairman Beaver County Commissioners Beaver County Beaver, PA RE: County Engineers 'Dear Mr. Camp: a. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 June 24, 1981 OPINION OF THE COMMISSION You. requested an opinion from the Ethics Commission as to whether: 1. An engineering firm which has performed the functions of a county engineer for ten years without an official appointment may be subject to the Ethics Act; and 2. Such an engineering firm must file a Statement of Financial Interests with the County. II. Factual Basis for Determination: 81 -006 Beaver County is a county of the second class. Beaver County has not appointed an official county engineer, but the engineering firm of Michael J. Baker, Jr. (Baker) has provided engineering services to the County for ten years. Baker is a large firm headquatered in Beaver, Pennsylvania. Typically, Baker's duties involve designing various public works. For example, Baker contracted with the County to design the reconstruction of several bridges in the County. Once Baker prepared a suitable design the firm frequently contracted with the County to perform construction phase services. These services consist of visits to the work site and reports to the County on the progress of the work. The inspections are to insure that the County is protected against defects and deficiencies in the construction. As part of its construction phase services Baker attended bid openings., assisted in the selection of contractors, reviewed shop drawings for conformity to the engineering design, inspected the final product, and recommended final payment to the contractors. James G. Camp, Chairman June 24, 1981 Page 2 III. Applicable Law: The following sections of the Ethics Act are relevant to the issues presented: Section 402 Public Employee: Any individual employed by the Common- wealth 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) inspecing, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimus nature on the interests of any person. Section 403(c): No public official or public employee or a member of his immediate family or any business in which the person or a member of the person's immediate family is a director, officer, owner or holder of stock exceeding 5% of the equity at fair market value of the business shall enter into any contract valued at $500 or more with a governmental body unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. Any contract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of making the contract. James G. Camp, Chairman June 24, 1981 Page 3 Code: Additionally, applicable law is found in the County IV. Discussion: Section 404: No public official shall be allowed to take the oath of office or enter or continue upon his duties, nor shall he receive compensation from public funds, unless he has filed a Statement of Financial Interests with the Commission as required by this Act. §1001. County engineer; appointment; term The county commissioners of any county may appoint a professional engineer in civil engineering, who shall be styled the county engineer. Such engineer shall serve at the pleasure of the commissioners. §1002. Duties The County engineer shall: (1) prepare plans, specifications, and estimates of all engineering work undertaken by the county, and, whenever required, shall furnish the commissioners with reports, information, or estimates on any such work and, in general, shall perform all such duties with reference to any county engineering work as the county commissioners may from time to time prescribe; (2) perform all duties relating to surveying as may be assigned to him by county commissioners or by law; and (3) perform all duties heretofore imposed on county surveyors. The Ethics Act defines a public official as any elected or appointed offical in the Executive, Legislative or Judicial branch of a subdivision of the Commonwealth. 65 P.S. §402. Baker has not been appointed county engineer James G. Camp, Chairman June 24, 1981 Page 4 even though the County Code, 61 P.S. §1001,;authorizes such an appointment. Yet if Baker is not an appointed public official it may be amenable to the provisions of the Ethics Act as a public employee. According to the Act, a public employee is any indivi- dual employed by a political subdivision responsible for taking or recommending official action of a nonministerial " nature with regard to contracting, inspecting or taking any other action that has an economic impact of greater than a ' de minimus nature on the interests of any person. 65 P.S. §402. Even though engineers have independent contractor status at common law under the Ethics Act, they take or recommend nonministerial actions that have such an economic impact and are, therefore, public employees, Bryan, 80 -014. Baker's duties include making recommendations with regard to County contracting. Baker inspects the work of building contractors and its assistance in the selection of contractors has a greater than de minimus impact on the economic interests of those contractors. While Baker was paid on a contract -by- contract basis, that fact alone is not dispositive. As the Ethics Commission has stated: When an engineering firm is brought in for a particular job because of its unique expertise in a particular area... and is not the regular consul- ting engineer employed by the township, that engineering firm is not considered a public employee... An engineering firm employed... as needed, is subject to the State Ethics Act as a public employee, whether on retainer, or on a "per job" basis. Bryan, 80 -014 (emphasis added). Baker was the regular consulting engineer employed by the County to perform many, if not all, of the functions of an appointed engineer. Therefore, Baker is a public employee. As a public employee Baker must file Statements of Financial Interest as required by the Act. 65 P.S. §404. Additionally, Baker must not use its public employee status to obtain compensation other than that provided by law. Baker may not contract with the County if the contract is valued at more than $500 unless the contract is awarded in an open and public process. 65 P.S. §403(c). An open and public process meets these criteria: James G. Camp, Chairman June 24, 1981 Page 5 (1) Prior public notice; and (2) public disclosure of all proposals considered; and (3) public disclosure of the award of the contract. Howard, 79 -044. V. Conclusion: An engineering firm that is not a formally appointed county engineer is nevertheless a public employee subject :to the Ethics Act because it recommends nonministerial official action with regard to contracting and inspecting on a continuing basis. As a public employee Baker must file a Statement of Financial Interests with the County. If Baker desires to contract with the County, the contract, if in excess of $500, must be awarded in an open and public process allowing for: (1) Prior public notice; and (2) public disclosure of all proposals considered; and (3) public disclosure of the award of the contract. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any 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. PJS /rdp cc: Michael Baker, III, P.E. Chairman & Chief Executive Officer 6 PAUL J . /�MfTH Chairman