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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