HomeMy WebLinkAbout80-014 NelsonTO:
RE:
FACTS:
James S. Bryan
Bryan and Bryan
11 Park Street
North East, PA 16428
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STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
March 12, 1980
Status of an Engineering Firm
John A. Copinski
602 E. Fourth Street
Swedesburg, PA 19405
Vincent F. Mannella George R. Nelson, Inc.
Nandor Engineering Co., Inc. 515 West Ninth Street
326 Center Avenue Hazleton, PA 18201
Dennis R. Peters
Professional Engineer
422 East Fourth Street
Berwick, PA 18603
Opinion // 80 -014
On February 15, 1980, James S. Bryan and others requested
an advisory opinion with respect to Hill and Hill Engineers, Inc.,
consulting engineers for numerous boroughs and townships in the
Commonwealth of Pennsylvania. The principal questions asked are:
1) Is an individual, firm or corporation associated as a
consulting engineer with a municipal subdivision required to file
a statement of financial interest as a public employee?
a. If the consulting engineer is paid an annual retainer?
b. If the consulting engineer is employed for individual
jobs at a negotiated fee?
2) Is an individual, firm or corporation associated with
the municipality as a consulting engineer a public employee and /or
a public official?
3) Is an individual, firm or corporation associated with a
municipality as a consulting engineer who is so associated with
more than one municipal subdivision required to comply with the
provisions of Section 3(c)?
4) In the event a consulting engineer is a professional
corporation, which professional corporate employees and /or owners
shall be required to file any necessary financial statement?
Bryan, Copinski, Mannella, Nelson, Peters
March 12, 1980
Page 2
On January 2, 1980, George R. Nelson, Consulting Engineer
and others, inquired as to whether engineering firms hired to
do a specific design project are subject to the State Ethics Act.
DISCUSSION:
The issue relates to how engineering firms, their members,
and individual engineers should be treated under the State Ethics
Act.
When an engineering firm is brought in for a particular
job because of its unique expertise in a particular area, e.g.
hydrology, and is not the regular consulting engineer employed
by the township, that engineering firm is not considered a public
employee, and no member of that firm is required by the State
Ethics Act to file a Statement of Financial Interests with the
governmental body employing it. However, such engineers while
not subject to disclosure requirements of the State Ethics Act
are still subject to Section 3(b) of the Act which reads:
No person shall offer or give to a public official or
public employee or candidate for public office or a member
of his immediate family or a business with which he is
associated, and no public official or public employee
or candidate for public office shall solicit or accept
anything of value, including a gift, loan, political
contribution, reward, or promise of future employment
based on any understanding that the vote, official action,
or judgment of the public official or public employee
or candidate for public office would be influenced thereby.
An engineering firm employed by a particular borough or
township as needed, is subject to the State Ethics Act as a
public employee, whether on retainer, or on a "per job" basis.
It is considered a "public employee," not withstanding the inde-
pendent contractor status under the common law, because under
the State Ethics Act, an engineer "is responsible for taking or
recommending official action of a nonministerial nature with
regard to . . . planning or zoning, . . . or any other activity
where the official action has an economic impact of greater than
a de minimus nature on the interests of any person." 65 P.S. 402.
Levin opinion, 79 -76.
Bryan, Copinski, Mannella, Nelson, Peters
March 12, 1980
Page 3
The term "governmental body" in Section 3(c) refers to the
governmental body with which that public official was associated,
so that an engineering firm doesn't violate Section 3(c) when
representing more than one municipality. Williams, 79 -12.
Firms or individuals deemed employees under this opinion
are covered by the requirements of Section 3(c) for work outside
the scope of his or her duties as the engineer for the township,
borough, or other municipal body.
CONCLUSION:
PJS /alf -4
Those engineers covered by the disclosure requirements and
Section 3(c) of the State Ethics Act are those engineers regu-
larly employed by the governmental body, whether on a retainer
or on an "as needed" basis. Those engineers not regularly em-
ployed are still subject to Section 3(b) of the State Ethics Act.
Pursuant to Section 7(9)(i), this opinion 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.
This letter is a public record and will be made available
as such.
Paul J. /S'mith
Chairma