HomeMy WebLinkAbout03-531 YoustJ. Bradley Youst, P.E.
1362 Moravia Street
Bethlehem, PA 18015 -4460
ADVICE OF COUNSEL
March 24, 2003
03 -531
Re: Public Official; Statement of Financial Interests; Engineering Firm; Appointed
Engineer; Consulting Engineer; Engineer Employed by Engineering Firm.
Dear Mr. Youst:
This responds to your letter dated February 14, 2003, by which you requested
advice from the State Ethics Commission.
Issue: When an engineering firm serves as an appointed engineer for a public
boT or is hired to provide other engineering services to a public body, whether an
engineer who performs such services as an employee of the firm is subject to the
requirements of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §
1101 et seq., for filing Statements of Financial Interests.
Facts: As a licensed Professional (civil) Engineer in the Commonwealth of
eennsylvania, you seek an advisory from the State Ethics Commission based upon
submitted facts which may be fairly summarized as follows.
You state that you are a full -time regular employee of a consulting engineering
firm (the "Firm "). You are not an owner, partner or shareholder in the Firm.
The Firm provides engineering services to many townships, boroughs, and utility
authorities in Pennsylvania, either on an annual appointment or project- specific bid
basis.
Your job responsibilities include serving as engineer to multiple public bodies that
appoint or hire the Firm to provide engineering services. You state that you review
developers' plans for subdivisions and land developments, and applications for zoning
and land use approval. You also review and make recommendations concerning the
ordinances, regulations, or standard engineering practices of such public bodies. You
state that since you are not a member of the public bodies, you cannot vote to approve
or disapprove any particular plan or proposal.
Your job responsibilities also include advising public bodies on the need for
infrastructure repairs and improvements, including roads, municipal structures, storm
drainage, water, sewer, and park systems. You prepare specifications for construction
and rehabilitation of public infrastructure, which specifications result in public bids and
contract awards for the expenditure of public funds. You state that as a consulting
Youst, 03 -531
March 24, 2003
Page 2
engineer to public bodies, you cannot vote to approve the award of contracts or the
expenditure of funds, which determinations are made by the public bodies. You state
that even during the course of project construction, the engineer recommends payment
to the contractor based upon a review of applications for payment and an objective
evaluation of work performed, but does not make the final decision to pay the contract,
which decision is made solely by the public body.
Based upon the foregoing, you opine that you are not required to file a Statement
of Financial Interests. You state your belief that given your job responsibilities as an
employee of the Firm, you are not a candidate, nominee, public official, or public
employee. You seek guidance from the State Ethics Commission with respect to
evaluating your responsibilities in this regard.
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
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.
It is administratively noted that various statutes /codes provide for the
appointment of an engineer by a governmental body. See, e.q., 53 P.S. §§ 56301-
56306 (First Class Township Code); 53 P.S. §§ 66201 -66203 (Second Class Township
Code); 53 P.S. § 46005(1) (Borough Code); P.S. § 36501 et seq. (Third Class City
Code).
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. See, also, the Commission Regulations at 51 Pa. Code § 11.1.
The Commonwealth Court oennsylvania has directed that coverage under the Ethics
Act be construed broadly and that exclusions under the Ethics Act be construed
narrowly. Philips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984).
In applying the first portion of the definition of "public official," a public official is a
person who: (1) is elected by the public; (2) is elected or appointed by a governmental
body; or (3) is an appointed official in the executive, legislative or judicial branch of the
Commonwealth or a political subdivision of the Commonwealth. Muscalus, Opinion 02-
007. The remaining portion of the definition excluding members of certain advisory
boards is inapplicable under the facts that you have submitted.
In applying the above provisions to the facts that you have submitted, the Firm is
a "person" as defined by the Ethics Act:
Youst, 03 -531
March 24, 2003
Page 3
§ 1102. Definitions
"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.
Additionally, the public bodies appointing the Firm to engineering positions are
"governmental bodies" as defined by the Ethics Act:
"Governmental body." Any department, authority,
commission, committee, council, board, bureau, division,
service, office, officer, administration, legislative body or
other establishment in the executive, legislative or judicial
branch of a state, a nation or a political subdivision thereof or
any agency performing a governmental function.
65 Pa.C.S. § 1102 (Emphasis added).
The necessary conclusion is that the Firm would qualify as a "public official" as to
those public bodies that appoint the Firm to engineering positions. As to those public
bodies, if you are among the persons primarily responsible for providing such services
on behalf of the Firm, you are responsible for filing Statements of Financial Interests.
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 employes.
(h) If a law firm or engineering firm is designated
solicitor or engineer, the persons primarily responsible for
providing the services in the firm are responsible for filing a
Statement of Financial Interests.
51 Pa. Code § 15.2(h).
Thus, you would be required to file Statements of Financial Interests as to those
public bodies for which you are among the persons primarily responsible for providing
engineering services on behalf of the Firm as an appointed engineer.
However, when the Firm is hired to perform engineering services on a particular
project - -as opposed to being appointed to an engineering position- -such work would not
bring the Firm within the definition of "public official" and would not trigger the
requirements for you to file Statements of Financial Interests under the Ethics Act. See,
Rogers v. State Ethics Commission, 470 A.2d 1120 (Pa. Cmwlth. 1984).
Conclusion: Pursuant to the Public Official and Employee Ethics Act ( "Ethics
Act "), 65 Pa.C.S. § 1101 et seq., and Regulations of the State Ethics Commission, 51
Pa. Code § 11.1 et seq., you would be required to file Statements of Financial Interests
as to those public — bodies for which you are among the persons primarily responsible for
providing engineering services on behalf of your employer, an engineering firm (the
'Firm"), as an appointed engineer. When the Firm is hired to perform engineering
services on a particular project - -as opposed to being appointed to an engineering
position - -such work would not bring the Firm within the definition of "public official" and
would not trigger the requirements for you to file Statements of Financial Interests under
the Ethics Act.
Youst, 03 -531
March 24, 2003
Page 4
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
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