HomeMy WebLinkAbout600-R ElliottMr. James C. Elliott
250 North 27th Street
Camp Hill, PA 17011
Re: Order No. 600, File No. 87 -134 -C
Dear Mr. Elliott:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
RECONSIDERATION ORDER OF THE COMMISSION
Order No. 600 -R
DATE DECIDED: 12/14/87
DATE MAILED: 12/28/87
This refers to the request for Reconsideration presented on November 3,
1987, with respect to the above - captioned Order issued on October 20, 1987,
pursuant to 51 Pa. Code 2.38. The discretion of the State Ethics Commission
to grant reconsideration is properly invoked pursuant to our regulations, 51
Pa. Code 2.38(b) when:
(b) Any party may ask the Commission to reconsider an Order within 15
days of service of the Order. The person requesting reconsideration
should present a detailed explanation setting forth the reason why the
Order should be reconsidered. Reconsideration may be granted at the
discretion of the Commission only where any of the following occur:
(1) a material error of law has been made;
(2) a material error of fact has been evade;
(3) new facts or evidence are provided which
would lead to reversal or modification
of the order and where these could not
be or were not discovered previously by
the exercise of due diligence.
The Commission, having reviewed your request, must DENY your request
because none of these circumstances are present.
Initially, it is noted that your request for reconsideration was
presented for review on November 3, 1987. Thereafter, you filed an Answer
Type Pleading dated November 30, 1987 by cover letter dated December 1, 1987.
On December 2, 1987, you sent a letter advising that you waived a hearing and
requested this Commission to consider reconsideration based upon the above
submissions.
Per. James C. Elliott
Page 2
In your request for reconsideration, you claim that there is one factual
error in Finding 1 concerning the status of Gannett Fleming Corddry and
Carpenter, Inc. (GFCC) with the Harrisburg Sewerage Authority (HSA). Although
you admit that GFCC was the consulting engineer for HSA since 1972, you assert
that in 1985, the status of GFCC changed whereby they were no longer the
consulting engineer. You state that after 1985, GFCC was "retained" by HSA
only to complete ongoing projects and that in 1986, GFCC had only one contract
with HSA.
Regarding to the status of GFCC, you were advised by staff of this
Commission in a letter dated August 21, 1987, that this Commission had
determined:
"that engineers regularly employed by a governmental body,
such as a municipal authority, whether on a retainer or as
needed basis, must file Statements of Financial Interests
in accordance with §404(a) of the State Ethics Act."
Therefore, since the status of GFCC, be it as a general consulting engineer or
as an engineer on a retainer basis, would not alter the filing requirement of
a Statement of Financial Interests, there was no material error or any error
of fact in this case. Also, by your own admission, the contract which GFCC
was executing in 1986 had been obtained when GFCC was the general consulting
engineer.
Turning to the matter of whether there was a material error of law, you
have raised three points; a "public employee" determination must be made on a
case by case basis, a designation by the governmental body is a condition
precedent to the applicability of the Ethics Act and thirdly the 15 day filing
deadline is not applicable to designated public employees.
The first two legal points you raise will be jointly considered since
they both involve Statement of Financial Interests filing status. Although,
as a very broad general rule, a "public employee" determination is made on a
case by case basis, this Commission has in the past made determinations as to
whether certain public employee positions, such as engineers who serve as
general consultants or on a retainer basis with municipal authorities, are
"public employees." See 80 -014. In this case, your filing status was
specifically reviewed and you were designated by HSA on July 23, 1987.
Even with the above specific designation as "public employee ", you failed
to file the Statement of Financial Interests.
Your non compliance as to filing continued because you assert you needed
clarification from HSA. You state that your mid September filing was "within
a short period after the clarification."
Mr. James C. Elliott
Page 3
This Commission finds it difficult to accept your non compliance argument
regarding a need for clarification from MSA in light of the fact that staff of
this Commission advised you by letter of August 21, 1987 regarding the filing
status of engineering firms. In that letter, you were sent a copy of the
State Ethics Act, a Guide to the Ethics Act and the Statement of Financial
Interest. You were even told that you could seek advice from this Commission
as to whether you would be required to file the Statement of Financial
Interest. You chose not to seek advice from this Commission even though you
were advised that the Commission could be compelled to investigate if a sworn
complaint were filed against you.
As to your third and final legal argument concerning the applicability of
the 15 day deadline for filing for "designated" public employees, your
citation of Regulations §4.1 and 4.3(b) and (c) is unavailing. Although this
Commission has interpreted Section 4(a) of the Ethics Act to require an
individual to file a Statement of Financial Interest immediately upon the
inception of public employment, a fifteen (15) day grace period has been
allowed. The foregoing applies to either hired, appointed or designated
public employees.
Since you did not file your Statement of Financial Interest timely,
within the 15 day period, a technical violation of Section 4(a) of the Ethics
Act was found by this Commission.
In light of the foregoing, the State Ethics Commission concludes that
your request for reconsideration must be DENIED.
That Order, a copy of which is attached hereto, and this decision denying
reconsideration are final and shall be made available as public documents on
the fifth business day following the date of this Order.
By the Commission,
4 11. �wwcrsva7E-
G. Sieber Pancoast
Chairman