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