HomeMy WebLinkAbout96-004 MyersOPINION OF THE COMMISSION
G. William Myers, P.E., J.D.
Sr. Vice President & General Counsel
L. Robert Kimball & Associates, Inc.
615 West Highland Avenue
PO Box 1000
Ebensburg, PA 15931
I. ISSUE:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
Before: Daneen E. Reese, Chair
Austin M. Lee, Vice Chair
Roy W. Wilt
Allan M. Kluger
Rev. Joseph G. Quinn
DATE DECIDED: 5/31/96
DATE MAILED: 6/12/96
96 -004
Re: State Consultant; Township Engineer; Engineering Firm; Corporation; Contract;
Public Employee; FIS; Appeal of Advice.
Dear Mr. Myers:
This Opinion is issued pursuant to the appeal of Advice of Counsel, No. 96 -507
issued February 5, 1996.
Whether a corporate engineering firm or its employees may be considered
"public employees" required to file Statements of Financial Interests pursuant to the
Public Official and Employee Ethics Law, where the firm contractually performs
engineering services for a second class township but has not been designated "the
Township Engineer."
II. FACTUAL BASIS FOR DETERMINATION:
By letter dated February 16, 1996, you have appealed Advice of Counsel, No.
96 -507 issued on February 5, 1996.
Myers, 96 -004
June 12, 1996
Page 2
Advice of Counsel No. 96 -507 concluded that those employees of L. Robert
Kimball & Associates (Kimball) who are primarily responsible for providing its
engineering services to Cambria Township are "public employees" and are responsible
for filing Statements of Financial Interests (FIS) pursuant to the Ethics Law, even
though the services are provided pursuant to a contract and neither the firm nor its
employees have been labelled "the Township Engineer."
The Advice of Counsel reached the above conclusion based upon a review of
the facts, the Ethics Law, the Commission Regulations and the cases of Rogers v.
State Ethics Commission, 80 Pa.Commw. 43, 470 A.2d 1120 (1984); Ballou v. State
Ethics Commission, 496 Pa. 127, 436 A.2d 186 (1981); and Cerino v. Palmer, 265
Pa.Super. 1, 401 A.2d 770 (1979).
Kimball is a firm of architects and engineers which employs approximately 500
people. The firm is under contract with Cambria Township and with many other
boroughs, townships and municipalities.
Kimball's contractual services are set forth in its 1994 contract with Cambria
Township, which you have submitted and which is incorporated herein by reference.
You state that the contracts for the other years are substantially the same. The
services which Kimball provides to Cambria Township are as follows:
Article 1: Retainer Services of the ENGINEER
1.1 The OWNER agrees to employ the ENGINEER on a retainer
basis, and the ENGINEER agrees to perform and furnish the following
professional consulting services and other related engineering services for
the fees paid on a retainer basis.
1.1.1 Attendance by the Engineer at 12 meetings of the OWNER
per year, once per month.
1.1.2 Unlimited telephone consultation with the engineer on
routine OWNER matters.
1.1.3 Upon request, inspection of the OWNER's facilities on an
annual basis, and submitting a summary report on the facility's condition
with any recommended improvements.
1.1.4 Upon request, provide advice and recommendations as to
the maintenance, repair and operation of the townships [sic] roads, parks,
buildings and other facilities and property.
1.1.5 Upon request, assist with the townships [sic] budget each
fiscal year which shall reflect the recommendations made in said report
pursuant to paragraph (1.1.4) above.
1.1.6 Upon request, advise and recommend as to any capital
improvements that should be made during the next fiscal year, and
estimate the amounts of money necessary for such purposes.
Myers, 96 -004
June 12, 1996
Page 3
1.1.7 Provide technical assistance to the township in support of
funding applications.
Article 2: Additional Services of the ENGINEER
2.1 The OWNER may request and the ENGINEER shall provide
Additional Services which may be required from time to time in
implementation of projects which require a scope of work or type of
service beyond that expressed in Article 1 above.
2.2 The OWNER shall authorize ENGINEER to provide Additional
Services in writing which should include a precise scope of work,
schedule of deliverables, OWNER and ENGINEER responsibilities,
timetable and basis of compensation. Typical non - routine projects would
include but not be limited to: engineering design projects; system
rehabilitation projects; construction monitoring projects; feasibility
studies; permit applications; preparation and witness in legal matters;
surveys; mapping; architectural designs; extensive field studies;
environmental assessments and studies; preparation and attendance for
special meetings and public hearings.
Articles of Agreement for Provisions of Annual Professional Services, Articles 1 and
2, page 2.
We note that during the course of this matter, the Second Class Township Code
has been reenacted and amended. The Township Engineer is still appointed and serves
at the pleasure of the board of supervisors. §1201, Act 60 of 1995. The statutory
duties of a township engineer for a second class township have substantively remained
the same:
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).
Through your written submissions, and through a presentation at the public
meeting where this matter was considered, you have proffered numerous arguments
to support your view. Those arguments may be fairly summarized as follows:
First, you believe that Kimball is neither a "public official" nor a "public
employee" under the Ethics Law but is instead an independent contractor serving as
Mver , 96 -004
June 12, 1996
Page 4
a "state consultant." The term "state consultant" is defined in the Ethics Law as
follows:
Section 2. Definitions
"State consultant." A person who, as an
independent contractor, performs professional, scientific,
technical or advisory service for a State agency, and who
receives a fee, honorarium or similar compensation for such
services. A "State consultant" is not an executive -level
employee.
65 P.S. §402. You state that Kimball is a "state consultant" because it provides
professional, scientific, technical and advisory services (engineering and related
services) to Cambria Township, PennDOT and other governmental bodies. You state
that there is no requirement within the Ethics Law that a "state consultant" Tile a
Statement of Financial Interests, as to which you cite Ballou v. State Ethics
Commission, 496 Pa. 127, 436 A.2d 186 (1981) and PJS v. State Ethics
Commission, No. 230 M.D. 1995 (Pa. Commw. Ct., Opinion filed January 8, 1996).
You believe that the exclusion of "state consultants" from the disclosure
provisions of the Ethics Law is compatible with the Ethics Law's purpose.
Furthermore, you liken "state consultants" to members of advisory boards who are
excluded from being considered "public officials" if the board has no authority to
expend public funds (other than reimbursement for personal expense) or to otherwise
exercise the power of the state or political subdivision. (See, 65 P.S. §402). You
contend that Kimball tells people how to design things — it doesn't govern.
The Advice of Counsel determined that with regard to its services to Cambria
Township, Kimball could not be a "state consultant" because Cambria Township is not
a "state agency." You argue that the term "state agency" is not defined in the Ethics
Law and could therefore include a political subdivision such as a township. You
contend that it would make no sense to draw a distinction based upon the level of
governmental body served.
You cite Ballou v. State Ethics Commission, as stating that a municipal solicitor
"closely resembles" such a consultant. You feel that the Ballou decision is very much
alive and is not limited by its footnote commentary where the Court states:
Our decision is limited to the application of the Ethics Act to
attorneys serving in appellee's capacities. Not presented on this record
is the application of the act to any others serving in the public sector as
attorneys. See, e.g., Knup v. City of Philadelphia, 386 Pa. 350, 353,
126 A.2d 399, 400 (1956) ( "a court ... does not undertake to decide
academically the unconstitutionality or other alleged invalidity of
legislation until it is brought into operation so as to impinge upon the
rights of some person or persons ").
¢allou v. State Ethics Commission, 496 Pa. 127, , 436 A.2d 186, 187 (1981)
(Note 3). You believe this to be merely stating the ruism" that the Court was only
deciding the case before it. You state that you cite Ballou for its reasoning rather than
Myers, 96 -004
June 12, 1996
Page 5
for some ma judicata purpose. You believe that Rogers v. State Ethics Commission,
470 A.2d 1120 (1984), 80 Pa.Commw. 43, also differentiates "consultants" from
"public employees" and since it involved a municipality, lends support to your view
that the term "state agency" includes political subdivisions of the state. However, you
acknowledge that in Rogers, the consultant provided more limited services than your
firm provides to Cambria Township.
Your second argument is that Kimball is not a "public official" or "public
employee" subject to the Ethics Law because its services may be terminated at will,
upon 30 days written notice. Again, you cite Ballou, supra.
Your third argument is that Kimball may act only at the Township's
authorization. The firm is entirely subordinate to the Township. The Township may
follow or disregard the firm's advice. The firm cannot control the actions of the
Township.
Your fourth argument is that Kimball is responsible only to Cambria Township.
It owes no independent duty to the public and exercises none of the powers of
sovereignty. You cite Ballou, supra, and Rogers v. State Ethics Commission, 80
Pa.Commw. 43, 470 A.2d 1120 (1984).
Your fifth argument is that Kimball may not be deemed the township engineer
by default, i.e., simply because no other firm or individual has been so designated.
You note that there is no requirement that a township have a township engineer.
Your sixth argument is that the label of "township engineer" does not make one
a "public official" or "public employee." You cite Cerino v. Palmer, 265 Pa.Super. 1,
401 A.2d 770 (1979), a sovereign immunity case, as holding that a township engineer
performs "no policy making function but merely administers mandatory duties at the
operational level because a township engineer may only perform supervisory tasks as
directed by the township supervisors. Cerino, 265 Pa.Super. at , 401 A.2d at
774.
Your seventh argument is that Kimball cannot be a "public employee" because
it is a corporation, not an individual, and the Ethics Law defines a "public employee"
as an "individual." You state that if the Legislature had intended to include
corporations as "public employees" it would have used the term "person" instead,
since the Ethics Law defines "person" to include both individuals and corporations.
65 P.S. §402.
Although your firm's contract with Cambria Township uses the verb "employ"
in denoting the engagement of your firm, you state that semantics will not overcome
the problem that the definition of "public employee" does not include a corporation as
a possible "public employee."
Your eighth argument is that your firm's employees cannot be "public
employees" because they are not employed by the Commonwealth or a political
subdivision. Rather, they are Kimball's employees, and they are supervised and
compensated by Kimball. You state that as a matter of contract law, they are not in
privity of contract with Cambria Township. You note that the Advice of Counsel
states that the Ethics Law does not dictate the payment arrangements made between
Myers, 96 -004
June 12, 1996
Page 6
a township and its township engineer. You contend that the issue of the method of
payment "begs the question." You contend that the question is who is employing the
alleged "public employees." You state that your firm is the employer and that it is not
supplying people but rather professional services to the governmental body. In sum,
you state that the contract in question is between a governmental body (Cambria
Township) and a corporation (Kimball) and that those who provide the services are
employed by the corporation and not the governmental body.
Your ninth argument is that the Ethics Law was not intended to require the bulk
of your firm's more than 500 employees, including - draftspersons and secretaries, to
file FIS forms.
Finally, in your tenth argument, you contend that the Advice of Counsel
misquotes the Commission Regulations as including township engineers as among
those typically included as public employees, while the regulation actually lists
"engineers." It is your belief that neither Kimball nor its employees are "acting as" any
of the officials listed in the aforesaid regulations. You further note that Kimball has not
been denoted the Township Engineer and that Cambria Township contracts with other
engineering consulting firms.
III. DISCUSSION:
The issue before us is whether the Advice of Counsel correctly concluded that
L. Robert Kimball & Associates ( "Kimball ") and /or certain individuals employed by that
corporation are "public employees" within the Ethics Law's definition of that term and
are therefore required to file Statements of Financial Interests.
The Ethics Law defines the term "public employee" as follows:
Section 2. Definitions
"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.
Myers, 96 -004
June 12, 1996
Page 7
65 P.S. §402.
"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 this Commission repeat the statutory definition of "public
employee" and further expound upon the term as follows:
(ii) The following criteria will be used, in part, to determine
whether an individual is within the definition of "public employee ":
(A) The individual normally performs his responsibility in the
field without onsite supervision.
(B) The individual is the immediate supervisor of a person'who
normally performs his responsibility in the field without onsite
supervision.
office.
(C) The individual is the supervisor of a highest level field
(D) The individual has the authority to make final decisions.
(E) The individual has the authority to forward or stop recommen-
dations from being sent to the person or body with the authority to make
final decisions.
(F) The individual prepares or supervises the preparation of final
recommendations.
(G) The individual makes final technical recommendations.
(H) The individual's recommendations or actions are an inherent
and recurring part of his position.
(1) The individual's recommendations or actions affect
organizations other than his own organization.
(iii) 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.
(iv) Persons in the following positions are generally considered
public employes:
(A) Executive and special directors or assistants reporting
directly to the agency head or governing body.
Myers, 96 -004
June 12, 1996
Page 8
(B) Commonwealth bureau directors, 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.
(D) Engineers, managers and secretary .treasurers acting as
managers, police chiefs, chief clerks, chief purchasing agents, grant and
contract managers, administrative officers, housing and building
inspectors, investigators, auditors, sewer enforcement officers and
zoning officers in all governmental bodies.
(E) Court administrators, assistants for fiscal affairs and
deputies for the minor judiciary.
(F) School superintendents, assistant superintendents, school
business managers and principals.
(G) Persons who report directly to heads of executive, legislative
and independent agencies, boards and commissions except clerical
personnel.
(v) Persons in the following positions are generally not considered
public employes:
(A) City clerks, other clerical staff, road masters, secretaries,
police officers, maintenance workers, construction workers, equipment
operators and recreation directors.
(B) Law clerks, court criers, court reporters, probation officers,
security guards and writ servers.
(C) School teachers and clerks of the schools.
51 Pa. Code §11.1.
There is no precedent under Act 9 of 1989. We reviewed a similar issue as to
a County engineer under Act 170 of 1978. In Camp, Opinion 81 -006, we determined
that the engineering firm of Michael Baker, Jr., which had provided engineering
services to a county for ten years without being officially designated "the county
engineer," was nevertheless a public employee subject to the Ethics Act because it
recommended nonministerial official action with regard to contracting and inspecting
on a continuing basis.
We must decide your question under Act 9 of 1989. Having reviewed the
statutory and regulatory provisions, and having weighed the Advice of Counsel and the
arguments which you have raised, and based upon the unique and unusual facts in this
case, it is our opinion that Advice of Counsel No. 96 -507 must be reversed. Kimball
is not within the definition of "public employee" in that Kimball is a corporation and
is not an "individual." Kimball is not required to file Statements of Financial Interests.
Myers, 96 -004
June 12, 1996
Page 9
Based upon the above, there is no need to address the remaining arguments
which you have raised. Advice of Counsel No. 96 -507 is reversed.
IV. CONCLUSION:
As to the requirement for filing Statements of Financial Interests under the
Ethics Law, a corporation, not being an individual, is not within the definition of "public
employee" as set forth in the Ethics Law and therefore is not within that filing status.
Advice of Counsel No. 96 -507 is reversed.
Pursuant to Section 7(10), the person who acts in good faith on this opinion
issued to him shall not be subject to criminal or civil penalties for so acting provided
the material facts are as stated in the request.
This letter is a public record and will be made available as such.
Finally, any person may request the Commission to reconsider its Opinion. The
reconsideration request must be received at this Commission within thirty days of the
mailing date of this Opinion. The person requesting reconsideration should present a
detailed explanation setting forth the reasons why the Opinion requires reconsideration.
By the Commission,
eZ . 12111.0.-
Daneen E. Reese
Chair