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Home My WebLink About589 DuFallaMr. Michael DuFalla 501 Floral Hill Drive Washington, PA 15301 Re: 86 -164 -C Dear Mr. DuFalla: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 589 DATE DECIDED: July 21, 1987 DATE MAILED: July 28, 1987 I. Allegation: That you, a North Franklin Township Engineer, violated Section 4(a) of the Ethics Act which states that each public employee shall file a Statement of Financial Interests with the governing authority of the political subdivision by which he is employed no later than May 1 of each year that he holds such a position and of the year after he leaves such a position and Section 4.4(b) which states that incumbent public officials in other governmental bodies who are not candidates shall file their Statements of Financial Interests only with their governmental body, in that you failed to file Statements of Financial Interests in 1981, 1982, 1983, 1984, 1985, and 1986. A. Findings: 1. You serve as an Engineer for North Franklin Township, Washington County, Pennsylvania. a. You have served in this position since February, 1981. 2. A review of the Statements of Financial Interests on file with the township indicate that there are no statements for you. 3. You are employed by- Englehardt and Powers and serve as the president and treasurer of that entity. 4. You are retained by the township as an engineering consultant on an as needed basis. a. You are not on salary with the township. Mr. Michael DuFalla Page 2 b. Your firm has no retainer with the township. 5. You advise that you only attend one or two township meetings each year. a. You advise that you believed that you had, on one occasion, filed a Statements of Financial Interests but did not file for other years. b. You do not believe that you were required to file as you are not a township employee and only serve as a consultant. B. Discussion: The State Ethics Act provides as follows: Section 4. Statement of financial interests required to be filed. (a) Each public employee employed by the Commonwealth shall file . a statement of financial interests for the preceding calendar year with the department, agency or bureau in which he is employed no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed no later than May 1 of each year that he holds such a position and of the year after. he leaves such a position. 65 P.S. §404(a). The Regulations of the State Ethics Commission further provide that §4.4.Incumbent and former public officials. (b) Incumbent public officials in governmental bodies other than those specified in subsection (a) who are not candidates shall file their Statement of Financial Interests only with their governmental body. 51 Pa. Code §4.4(b). In the instant situation, we must determine whether you, serving as an engineer on an as needed basis with North Franklin Township, are to be considered a public employee within the definition of the State Ethics Act. Mr. Michael DuFalla Page 3 The Ethics Act defines 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 minimus 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. 65 P.S. 402. In addition to the foregoing, the Regulations of the Commission provide as follows: Section 1.1. Definitions. Public employee - -- (i). The term includes any 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; Mr. Michael DuFalla Page 4 (IV) inspecting, licensing, regulating, or auditing any person; or (V) any other activity where the official action has greater than a de mir,imus economic impact; and (B) who meets the criteria of either subclause (I) or (Ii): (I) 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; or ( -c -) the supervisor of any highest level field office. (II) The individual is a person: ( -a -) who: ( -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; or ( -4 -) makes the final technical recommendations; and Mr. Michael DuFalla Page 5 ( -b -) whose recommendations or actions: ( -1 -) are an inherent and recurring part of his position; and ( -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 below are generally considered public employees. (A) Executive and special directors or assistants reporting directly to the agency head or governing body. (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 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 all governmental bodies. (E) Court administrators, assistants for fiscal affairs, and deputies for the minor judiciary. (F) School business managers and principals. Mr. Michael DuFalla Page 6 This Commission, in the past, has determined that individuals who are privately employed as engineers but are on retainer serving as the regularly retained township engineers would be required to file Statements of Financial Interests in accordance with the provisions of the State Ethics Act. See Byran, 80 -014. Specifically, the Commission held, in that opinion, that those engineers covered by the disclosure requirements of Section 3(c) of the State Ethics Act are engineers who are regularly employed by the governmental body whether on retainer or on an as needed basis. Those engineers, not regularly employed by the township, would not be covered by that provisions of the State Ethics Act. In the instant situation, it is clear, that you only served the township on several occasions. You do not regularly attend township meetings and do not perform services for the township on a routine basis. In light of this situation, it is clear that you would not be considered a public employee within definitions of the State Ethics Act, the Regulations of the State Ethics Commission and the opinions interpreting those terms. As such, there would be no requirement that you file a Statement of Financial Interests in accordance with the provisions of the State Ethics Act. We do note, however, in closing that in the event that your position as a consultant to the township should in any way conflict with your services as a private engineer to individuals or clients serviced by your firm, then you may need to seek the advice of this Commission prior to taking any action on behalf of the township or making recommendations therefor. C. Conclusion and Order: An engineer who is not regularly employed by the township and who performs very limited services as a consultant, is not required to file Statements of Financial Interests in accordance with the provisions of the State Ethics Act. In the event that any conflict should arise between your official consulting services to the township and your Activities as a private engineer, an opinion of this Commission should be obtained prior to participating in any township matter wherein such a conflict may exist. Our files in this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. 408(a). However, this Order is final and will be made available as a public document 15 days after service (defined as mailing) unless you file documentation with the Commission which justifies reconsideration and /or challenges pertinent factual findings. See 51 Pa. Code 2.38. During this 15 -day period, no one, including the Respondent unless he waives his right to challenge this Order, may violate this confidentiality by releasing, discussing or circulating this Order. Mr. Michael DuFalla Page 7 Any person who violates the confidentiality of a Commission proceeding is guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned for not more than one year or both, see 65 P.S. 409(e). By the Commission, G. Sieber Pancoast Chairman