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HomeMy WebLinkAbout92-570STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 28, 1992 Mr. Donald H. Zeigler PSC Engineers & Consultants, Inc. 649 North Lewis Road Limerick, PA 19468 92 -570 Re: Public Employee /Official, FIS, Engineering Firm, Services to Borough. Dear Mr. Zeigler: This responds to your letter of March 13, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether a consulting engineering firm which provides engineering services to a borough on a continuing basis for water and sewer systems, but is not appointed to any official position with the borough, is to be considered a "public employee" under the Public Official and Employee Ethics Law, and therefore, required to comply with the financial reporting and disclosure provisions of the Ethics Law, where the borough retains another firm designated as the borough engineer. Facts: As a project manager for the consulting engineering firm of PSC Engineers and Consultants, Inc. ( "PSC "), you seek an advisory from the State Ethics Commission. PSC provides engineering services to the Borough of Emmaus in Lehigh County, Pennsylvania on a continuing basis for the water and sewer systems. You state that although this relationship has existed for many years, the Borough does not appoint PSC to any official position annually or on any other basis. Furthermore, the Borough retains another firm which is the designated "Borough Engineer." You ask whether PSC is required by the Ethics Law to complete and file Statements of Financial Interests. Discussion: We have been asked to review the question of whether PSC is subject to the financial reporting and disclosure requirements of the Ethics Law. Under the facts which you have submitted, PSC is not the designated Borough Engineer, and in fact, there is another firm which has been so designated. It would appear that PSC is acting as an independent contractor in providing professional consulting and engineering services fora fee, without Mr. Donald H. Zeigler April 28, 1992 Page 2 holding any Borough office or position. (See, Rogers v. Statg Ethics Commission, 80 Pa. Cmwlth. 43, 470 A.2d 1120 (1984). Thus, PSC would not be considered a "public employee" as that term is defined in the Ethics Law. Thus, because PSC is not within the classification of the term "public employee ", PSC would not be subject to the financial reporting and disclosure requirements of the Ethics Law. Accordingly, PSC would not be required to )ile the Statement of Financial Interests for the years in which it provides such services to the Borough without holding a Borough office or position. Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Borough Code. Conclusion: In its capacity as a consulting engineering firm providing engineering services to the Borough of Emmaus in Lehigh County, Pennsylvania, PSC Engineers and Consultants, Inc. ( "PSC "), is not to be considered a public employee as defined in the Ethics -Law where the Borough does not appoint PSC to any official position annually or on any other basis, and another firm is designated as the Borough Engineer. Accordingly, in said capacity, PSC would not be subject to the reporting and disclosure requirements of the Ethics Law and need not file a Statement of Financial Interests. Sections 3(b) and (c) of the Ethics Law are applicable to everyone. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. such. This letter is a public record and will be made available as Mr. Donald H. Zeigler April 28, 1992 Page 3 Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, Vincent 7. Dopko Chief Counsel