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HomeMy WebLinkAbout600 ElliottMr. James C. Elliott 250 North 27th Street Camp Hill, PA 17011 Re: 87 -134 -C Dear Mr. Elliott: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 600 DATE DECIDED: October 14, 1987 DATE MAILED: October 20, 1987 The State Ethics Commission has received a complaint regarding you and a possible violation of Act 170 of 1978. The Commission has now completed its investigation. The individual allegations, conclusions, and findings on which those conclusions are based are as follows: I. Allegation: That you, a Consulting Engineer for the Harrisburg Sewerage Authority (HSA), violated Section 4(a) of the Ethics Act which states that 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 and 4.7 of the Regulations, which state that where a law firm or engineering firm is designated solicitor or engineer, the governmental body shall designate the individuals in the firm responsible for filing a Statement of Financial Interests. The individual so designated shall be a public employee as defined in §1.1 relating to definitions (definition of "public employee ") in that you, as Project Manager for the Harrisburg Sewerage Authority since 1981, have failed to file a Statement of Financial Interests on an annual basis. A. Findings: 1. Records of the Harrisburg Sewerage Authority (HSA) confirm that the Authority has employed the firm Gannett, Fleming, Corddry and Carpenter as consulting engineers since August 14, 1972. 2. Records of the Authority also confirm that you were designated by Gannett - Fleming as Project Manager for HSA since at least January, 1981. 3. Correspondence dated July 7, 1987, from HSA solicitor John Sullivan to Robert Young disclosed the following: Mr. James C. Elliott Page 2 a. The letter acknowledged receipt of a request for an opinion whether the Authority's consulting engineers must file the annual Statement of Financial Interests. b. The letter stated... Based upon our review of the law, the Commission's regulations and the above mentioned advisory opinion, it is our opinion that both consulting engineers retained on an annual basis and those employed for a "single project" must.comply with the reporting requirements. c. The letter added... Two further caveats: Only those engineers making the recommendation to the Authority are required to file. Engineers making recommendations to the Authorities consulting engineers would not be required to file, in our opinion. Secondly, under 51 Pa. Code 4.7, when a firm of engineers is employed, the Authority can designate the single individual in that firm responsible for filing the annual statement. Under the above cited regulation the designated individual is the "public employee" under the Act and the regulations. 4. Minutes of the HSA meeting of July 16, 1987, disclosed the following: a. The Chairman reported that he had received an opinion letter from the Authority's Legal Counsel regarding the filing of financial interest . statements by the Authority's Consulting Engineers. The Legal Counsel issued the opinion that the Authority's Consulting Engineers retained on an annual basis and those employed for a "single project" must comply with the reporting requirements by filing an annual Statement of Financial Interests with the Secretary of the Authority. The Legal Counsel also opined that when an engineering firm is employed by the Authority, the Authority can designate the single individual in that firm responsible for filing the annual statement. After discussion, the Authority designated David A. Brinjac, project manager for Brinjac - Chester and James C. Elliott, project manager for Gannett Fleming as the individuals in their respective engineering firms responsible for filing the annual statements. b. You were not present at that meeting. 5. By memo dated July 22, 1987, Authority Chairman Robert Young notified you end David Brinjac of Brinjac, Kambic Associates, also a consulting engineer, of a State Ethics Commi ssior, ruling (80 -014) regarding engineers covered by ■ Mr.. James C. Elliott Page 3 disclosure requirements, and the solicitor's opinion of July 7, 1987. Young also informed you that the Authority designated you, project manager for Gannett Fleming as the individual responsible for filing the annual statement. - a. The memo directed you to file with the Secretary of the Authority within (15) days. 6. You provided the following information: a. You were unaware of the filing requirement until late July, 1987. b. You checked with your firm and learned that in other municipalities where your firm is employed as consulting engineer the company president will file the form. This is done because the president is required to sign all official documents. c. During a late August, 1987 meeting with Authority Chairman Young, you informed him that the company president would file, but you were told that you would be required to file the Statement of Financial Interests. d. You filed a Statement of Financial Interests with the Authority on September 14, 1987. You believed this complied with the (15) day requirement since you talked with Young in late August. 7. Authority records confirm that you filed a Statement of Financial interests on September 14, 1987. 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). Mr. James C. Elliott Page 4 The Regulations of the State Ethics Commission further provide that: §4.1.Public employes. (a) Each public employe employed by the Commonwealth shall file a Statement of Financial Interests, Form SEC -1, for the preceding calendar year with the department, agency, or bureau with 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. 51 Pa. Code 4.1(a). §4.1.Public employes. (d) The governing authority of the political subdivisions will designate the location of the Statements of Financial Interests for their employes. 51 Pa. Code 4.1(d). There is no doubt that as a Project Manager for Harrisburg Sewage Authority, hereinafter HSA you are within the purview of the above provisions of the State Ethics Act. See Opinion 80 -014. 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 mi nimus 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. Mr. James C. Elliott Page 5 A review of your duties and functions as Project Manager for HSA indicates that you are within the above definition. The filing requirement, as set forth in the Ethics Act has been determined to apply equally to public employees and public officials. Kremer v. State Ethics Commission, 56 Pa. Commw. Ct. 160, 424 A.2d 968, (1981); Carter, 79 -066. The Ethics Act provides penalities for failure to file a Statement of Financial Interests as follows: Section 9. Penalties. (b) Any person who violates the provisions of Section 4 is guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned for not more than one year, or be both fined and imprisoned. 65 P.S. 409(b). This Commission has been mandated to make recommendations to law enforcement officials either for criminal prosecution or dismissal of charges arising out of violations of the Act. 65 P.S. §409(11). The State Ethics Act also provides that: Section 4. Statement of financial interests required to be filed. (d) 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. 65 P.S. 404(d). Pursuant to this provision of the Act, the Commission has taken action to prohibit candidates who are in violation of the law from continuing in the election process, State Ethics Commission v. Landauer, Pa. Commw. Ct. 496 A.2d 862, (1985), and has also required public officials and employees in violation of the Act to return any compensation obtained in violation of the above provision. Metzler, No. 389 -R; Huhn, No. 431. In the instant matter, you were designated the Project Manager for Gannett - Fleming, Corddry and Carpenter. As such, you were the individual in your firm required to file the annual Statement of Financial Interests. Since you believed that your company president was required to file the Statement of Financial Interest, it does not appear that your failure was intentional but rather was based upon a misunderstanding because the president of your firm had filed in other municipalities where your firm was employed as consulting engineers. After the Chairman of the HSA advised you that you were required Mc. James C. Elliott Page 6 to file the Statement of Financial Interests, you did so on September 14, 1987, which has been verified by the HSA. Since it does not appear that your failure to file was intentional or an attempt on your part to conceal - financial information, this Commission will take no further action. C. Conclusion and Order: 1. As a Project Manager for the Harrisburg Sewerage Authority, you are required under Section 4(a) of the Ethics Act to file a Statement of Financial Interests for each year in which you hold a position and for the year after you leave such position. 2. You violated Section 4(a) of the Ethics Act by failing to timely file the Statement of Financial Interests; however, since you have filed the Statement of Financial Interests with the Harrisburg Sewerage Authority, no further action will be taken. 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. 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, AttiAtcti G. Sieber Pancoast Chairman