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HomeMy WebLinkAbout720-R FerreroMr. Joseph L. Ferrero c/o Armstrong, Wiley Dickie, McCamey & Chilcote Suite 400 Two PPG Place Pittsburgh, PA 15222 Re: 86 -123 -C Dear Mr. Ferrero: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 RECONSIDERATION ORDER OF THE COMMISSION Order No. 720 -R Before: Helena G. Robert W. W. Thomas G. Sieber Michael J Hughes, Chair Brown, Vice Chair Andrews Pancoast . Washo Date Decided: September 26, 1989 Date Mailed: September 28, 1989 Your request for Reconsideration was received on August 23, 1989, with respect to the above - captioned Order issued on August 8, 1989, pursuant to 51 Pa. Code 2.38. The discretion of the State Ethics Commission to grant reconsideration is properly invoked 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 reasons 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 facts has been made; (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. 51 Pa. Code S2.38(b). Mr. Joseph L. Ferrero Page 2 The Commission, having reviewed your request, must DENY your request because none of these circumstances is present. Initially, although you submit your reconsideration request in terms of alleged errors of law and fact, there simply cannot be any errors of fact, material or otherwise or new facts, because the parties submitted a Stipulation of Findings. Therefore, our analysis will focus upon the arguments you raise in the context of possible errors of law regardless of whether you denominate them as alleged errors of law or fact. You challenge the Order by raising four arguments which will be considered seriatim: your status as a public employee; the base finding of a violation of Section 3(a) of the Ethics Act; the referral to the law enforcement authority with a recommendation for prosecution and the referral of the second allegation regarding contracting to.the law enforcement authority for further investigation. In your first argument, you question whether you are a public employee under the Ethics Act. After reciting in part, the definition of public employee, you assert that because you were not "on the payroll" with regular hours coupled with the receipt of insurance benefits or vacation time, the "common indicia" of employment are absent. You then cite Ballou v. SEC, 496 Pa. 127, 436 A. 2d 186 (1981), a case involving the status of solicitors, for the proposition that you are a consultant rather than a public employee. You state that you have no direct accountability to the public and hence you would not be a public employee. Further, you assert that you do not have the authority to approve or disapprove proposals submitted to the municipal bodies which are free to follow or disregard your advice. You conclude by asserting that you were an independent contractor providing advisory services and hence not a "public employee ". We determined in Re: Status of Enctineering Firm, 80 -014 that engineers regularly employed by a governmental body are public employees subject to the Ethics Act. In addition, in Camp, Opinion 81 -006 we concluded that even though an engineering firm was not formally appointed as county engineer, the firm would be a public employee" if it regularly performed consulting engineering services. Since you served as engineer for North Strabane Township, North Strabane Township Municipal Authority and North Strabane Planning Commission, you are a "public employee" under the Ethics Act. Your argument that you did not have an independent duty to the public is unavailing since public employees do have duty to the public even though they are not directly accountable to the electorate as are public officials. Mr. Joseph L. Ferrero Page 3 Contrary to your assertion that you had no duties to be considered as a "public employee ", such a argument is spurious considering the review and recommendation powers available to you as municipal engineer. Your conclusion that you are an independent contractor is not borne out by the facts. Given your status of municipal engineer together with your powers and duties, you are a public employee. 51 Pa. Code 1.1; Phillips v. SEC, 79 Pa. Cmwlth. 491, 470 A. 2d 659 (1984). Your second argument in seeking reconsideration relates to the finding that you violated Section 3(a) of the Ethics Act. You challenge the finding on the theory that you did not actually approve the plans. In addition, you assert your involvement with private individuals appearing before the boards was reflected on the submitted plans. You state that you did not intend to deceive and the boards had knowledge of your involvement so that there was no violation of the public trust. Your argument totally ignores the most culpable aspect of your actions; that you represented both sides (the municipality and the private client) in several specific instances; a situation which was certainly adverse to the public interest. A clear violation of the public trust exists when you as public employee reviewed, passed upon or recommended for approval plans for which you received fees for performing private engineering services. You then argue that you received no financial gain was because the compensation was approved and appropriated as fees for such services. In particular, you assert that your review of these plans for which you also received private fees, was within the scope of your assigned duties so that there could be no wrongful use of office to achieve a financial gain. Your proffered argument would have validity but for the fact that you were reviewing or recommending for approval plans on which you performed work in a private capacity. The foregoing aspect of the case constitutes the wrongful use of office to obtain the financial gain. By your review or approval of the recommendations of your own private work, you were not representing the public interest through the municipality but your own interest; consequently, "fees" that you received from the municipality in those circumstances were financial gains contrary to Section 3(a) of the Ethics Act. Finally, you argue that there is no basis on which to conclude that there was an "implicit self - assurance" between your working for private persons or entities and your review or recommendation for approval of those same plans in your official capacity as municipal engineer. It strains the bounds of credulity to suggest that private firms would not prefer submitting private work to you, since they are astute enough to realize that those same plans would then be submitted to the municipal body subject to your review or recommendation for approval. In short, you have benefited both Mr. Joseph L. Ferrero Page 4 privately and at the expense of the public trust when you in your public position reviewed or recommended for approval your own work for private clients. Your third argument in support of reconsideration raises an objection to the referral with a recommendation for prosecution. Such a referral is argued to be unwarranted because of your "good faith and lack of criminal intent." You cite an Advice of Counsel issued to another individual upon which you relied. Your knowledge that the Commission issues advisories to public officials /employees should have indicated to you that you could have requested such an advisory, which would have been a good faith defense if you provided all of the material facts. You chose not to do so. You simply have not presented any basis to modify our decision on referral. The arguments you raise have been considered and rejected in Order, 720. We have the statutory right to refer matters to law enforcement officials under Section 7 of the Ethics Act. Such right has been acknowledged by Commonwealth Court. Sheers v. Hiactins, Pa. Commw. , 549 A. 2d. 614 (1988). The referral as per Order, 720 is warranted in this case. Your fourth and final argument for reconsideration relates to the contracting allegation which was referred for further review to the law enforcement authority. You state that the process for awarding the contract was an open and public one using objective standards. After acknowledging that the award is "necessarily subjective" by the application of the standards by the selection committee, you assert that you had nothing to do with that process and should not be held responsible. You proffer other factors as a basis for your firm being selected as "best qualified ": your experience in the area of water treatment systems; location with easy access to the project; availability to handle complaints; ability to assign needed personnel; familiarity of regulatory requirements and grants; completion of other projects and lastly the size of your firm. Although you submit the above as new evidence, such considerations do not relate to or dispel the basis for our referral for review - the receipt of the maximum points as to minority, women or labor surplus area firms. After noting that your firm has employed female draft persons and secretaries in an area of high unemployment with your wife as an officer of the firm, you conclude that the award of the points is debatable and hence this Commission's investigation which uncovered "no Section 3(c) wrongdoing" should conclude the matter. Mr. Joseph L. Ferrero Page 5 Clearly, your firm is not a minority firm and you do not even challenge this. As for your firm being a "woman" firm, Ferrero and Associate, Inc. is your firm (Finding 2C) and the fact that you have your wife as an officer and several employees who are women does not qualify your firm in that category. The foregoing is equally applicable as to the category of labor surplus area. As to the matter of the Commission investigation and finding of no Section 3(c) violation, the referral does not relate to the Section 3(c) violation but the circumstances of the award of the project to your firm. In light of the foregoing, the State Ethics Commission concludes that your request for reconsideration must be DENIED. That Order and this decision denying reconsideration are final and shall be made available as public documents on the fifth (5th) . business day following the date of this Order. By the' Commissio , 4e= elena G. Hughes Chair G. Sieber Pancoast did not participate in this matter.