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HomeMy WebLinkAbout03-521 FisherJames R. Fisher, P.E. Fisher Engineering, Inc. 1522 West Main Street Ephrata, PA 17522 ADVICE OF COUNSEL March 7, 2003 03 -521 Re: Public Official; SFI; Appointed Engineer, Sewage Enforcement Officer, Zoning Officer, and Building Code Officer; Municipalities. Dear Mr. Fisher: This responds to your e-mail sent on February 5, 2003, by which you requested advice from the State Ethics Commission. Issue: Whether a consulting engineering firm that is appointed by several municipalities to serve as engineer, sewage enforcement officer, zoning officer, and building code officer is considered a "public official" subject to the Public Official and Employee Ethics Act (the "Ethics Act "), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, and particularly, the requirements for filing Statements of Financial Interests ( "SFI's "). Facts: You own Fisher Engineering, Inc., a consulting engineering firm ( "Firm ") t Thai -is appointed by several municipalities to serve as engineer, sewage enforcement officer, zoning officer, and building code officer. You state that the Firm, in serving in these various capacities, is not a municipal employee, candidate or nominee. While you do not consider yourself to be a public official, you acknowledge that you are uncertain as to whether a definition of "public official" actually exists which specifically includes employees of consulting firms performing services within a municipality. You state that you have been receiving conflicting responses regarding who must file an SFI. You further state that the Firm receives SFI's from some but not all of the municipalities which it serves. You ask whether the Firm as appointed engineer, sewage enforcement officer, zoning officer or building code officer would be considered a "public official" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requestor Fisher 03 -521 March 7, 2003 Page 2 based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. The term "public official" is defined in the Ethics Act as follows: § 1102. Definitions "Public official." Any person elected by the public or elected or appointed by a governmental body or an appointed official in the executive, legislative or judicial branch of this Commonwealth or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. 65 Pa.C.S. § 1102. The term "person" is defined in the Ethics Act as follows: "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. 65 Pa.C.S. § 1102 (Emphasis added). The regulations of the State Ethics Commission similarly define the term "public official" and set forth the following additional criteria that are used to determine whether the advisory board exception applies: (i) The following criteria will be used to determine if the exception in this paragraph is applicable: (A) The body will be deemed to have the power to expend public funds if the body may commit funds or may otherwise make payment of monies, enter into contracts, invest funds held in reserves, make loans or grants, borrow money, issue bonds, employ staff, purchase, lease, acquire or sell real or personal property without the consent or approval of the governing body and the effect of the power to expend public funds has a greater than de minimis economic impact on the interest of a person. (B) The body will be deemed to have the authority to otherwise exercise the power of the Commonwealth or a political subdivision if one of the following exists: (I) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. Fisher 03 -521 March 7, 2003 Page 3 (II) The body exercises a basic power of government and performs essential governmental functions. (III) The governing authority is bound by statute or ordinance to accept and enforce the rulings of the body. (IV) The body may compel the governing authority to act in accordance with the body's decisions or restrain the governing authority from acting contrary to the body's decisions. (V) The body makes independent decisions which are effective without approval of the governing authority. (VI) The body may adopt, amend and repeal resolutions, rules, regulations or ordinances. (VII) The body has the power of eminent domain or condemnation. (VIII)The enabling legislation of the body indicates that the body is established for exercising public powers of the Commonwealth or a political subdivision. (ii) The term does not include judges and inspectors of elections, notary publics and political party officers. (iii) The term generally includes persons in the following offices: (A) Incumbents of offices filled by nomination of the Governor and confirmation of the Senate. (B) Heads of executive, legislative and independent agencies, boards and commissions. (C) Members of agencies, boards and commissions appointed by the General Assembly or its officers. (D) Persons appointed to positions designated as officers by the Commonwealth or its political subdivisions. (E) Members of municipal, industrial development, housing, parking and similar authorities. (F) Members of zoning hearing boards and similar quasi-judicial bodies. (G) Members of the public bodies meeting the criteria in paragraph (i)(A). 51 Pa. Code § 11.1. Status as a "public official" subject to the Ethics Act is determined by applying the above definition and criteria to the position held. The focus is necessarily upon the position itself, and not upon the individual incumbent in the position, the variable functions of the position, or the manner in which a particular individual occupying the position may carry out those functions. See, Philips v. State Ethics Commission, 470 Fisher 03 -521 March 7, 2003 Page 4 A.2d 659 (Pa. Commw. Ct. 1984); Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982). Furthermore, the Commonwealth Court of Pennsylvania has directed that coverage under the Ethics Act be construed broadly and that exclusions under the Ethics Act be construed narrowly. See, Phillips, supra. Based upon the above judicial directives, the provisions of the Ethics Act, the State Ethics Commission Regulations, and the opinions of the State Ethics Commission, the necessary conclusion is that the Firm is a "public official" as that term is defined in the Ethics Act and the regulations of the State Ethics Commission. First, the Firm is the appointed engineer, sewage enforcement officer, zoning officer, and building code officer to several municipalities. Second, the Firm is a "person" as that term is defined in the Ethics Act. Since the Firm is designated as engineer, sewage enforcement officer, zoning officer, and building code officer, if you are among the persons primarily responsible for providing such services in the Firm, you are responsible for filing an SFI. This requirement is clearly set forth in Section 15.2(h) of the regulations of the State Ethics Commission which provides: § 15.2. Public officials and public employees. (h) If a law firm or engineering firm is designated solicitor or engineer, the persons primarily responsible for providing such services in the firm are responsible for filing a Statement of Financial Interests. 51 Pa. Code § 15.2(h). Conclusion: Fisher Engineering, Inc., a consulting engineering firm ("Firm") that is appointed by several municipalities to serve as engineer, sewage enforcement officer, zoning officer, and building code officer is a "public official" subject to the Public Official and Employee Ethics Act and the Regulations of the State Ethics Commission. Since the Firm is designated as engineer, sewage enforcement officer, zoning officer, and building code officer, if ou are among the persons primarily responsible for providing such services in the Firm, you are responsible for filing a Statement of Financial Interests. Accordingly, you must file a Statement of Financial Interests each year in which you hold the aforesaid position and the year following your termination of such service. If you have not already done so, a Statement of Financial Interests must be filed within 30 days of this Advice. Pursuant to Section 1107(11), an 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, provided 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. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be Fisher 03 -521 March 7, 2003 Page 5 received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717-787-0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Vincent J. Dopko Chief Counsel