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HomeMy WebLinkAbout26-557 Confidential PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 304 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL August 31, 2026 To the Requester: 26-557 This responds to your letter dated August 15, 2026, and your emails received August 20, 2026, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: Whether an engineering firm that has been appointed by \[Political Subdivision 1\] to provide \[Political Subdivision 1\] with special engineering services and has been appointed by \[Political Subdivision 2\] to serve as its “\[Position Title\]” would in either such capacity be considered a “public official” or “public employee” subject to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., and particularly, the requirements for filing Statements of Financial Interests. Brief Answer: NO. The engineering firm would not be considered a “public official” because it has not been designated as the \[Political Subdivision 1\] engineer or the \[Political Subdivision 2\] engineer, and it would not be considered a “public employee” because it is not an “individual” in an employer-employee relationship with \[Political Subdivision 1\] or \[Political Subdivision 2\]. Therefore, the requirements for filing Statements of Financial Interests pursuant to the Ethics Act are not applicable to the engineering firm. Facts: You request a confidential advisory from the Commission based upon the following submitted facts. You are a Pennsylvania-licensed professional engineer. At some time after \[Month, Year\], you left your employment with an engineering firm to establish your own privately-owned Confidential Advice, 26-557 August 31, 2026 Page 2 engineering firm named \[Name of Firm\] (“the Firm”). The Firm provides consulting engineering services to \[Political Subdivision 1\] and \[Political Subdivision 2\]. You have submitted a copy of the minutes of the \[Political Subdivision 1 Governing Body\] reorganizational/general meeting held on \[Date\]. The minutes of this meeting provide, in pertinent part, that the Firm and \[a Number of\] other engineering firms were appointed to provide “any special engineering services required by the \[Political Subdivision\] on \[an As-Needed Basis at a Certain Fee Rate\].” \[Citation\]. You have also submitted a copy of the minutes of the \[Political Subdivision 2\] meeting held on \[Date\]. The minutes of this meeting provide that the Firm was appointed as the “\[Position Title\]” for \[Political Subdivision 2\]. The question that is posed by your advisory request is whether the Firm’s service in the aforesaid capacities would require the filing of Statements of Financial Interests pursuant to the Ethics Act. 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 requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester 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 requester has truthfully disclosed all of the material facts. Section 1104(a) of the Ethics Act provides that each public official/public employee must file a Statement of Financial Interests for the preceding calendar year by May 1 of each year that the position is held and the year following termination of service in the position: § 1104. Statement of financial interests required to be filed (a) Public official or public employee.--Each public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the commission no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee or public official shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Confidential Advice, 26-557 August 31, 2026 Page 3 Persons who are full-time or part-time solicitors for political subdivisions are required to file under this section. 65 Pa.C.S. § 1104(a). The term “public official” and the related term “person” are 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. “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. The term “public employee” is defined in the Ethics Act as follows: § 1102. Definitions “Public employee.” Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person. Confidential Advice, 26-557 August 31, 2026 Page 4 The term shall not include individuals who are employed by this Commonwealth or any political subdivision thereof in teaching as distinguished from administrative duties. 65 Pa.C.S. § 1102. The terms “governmental body” and “political subdivision,” which are contained within the above definitions, are themselves specifically defined in the Ethics Act as follows: § 1102. Definitions “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. “Political subdivision.” Any county, city, borough, incorporated town, township, school district, vocational school, county institution district, and any authority, entity or body organized by the aforementioned. 65 Pa.C.S. § 1102. 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 v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984). In applying the Ethics Act’s definition of the term “public official,” the first portion of the definition provides that a public official is a person who is: (1) elected by the public; (2) elected or appointed by a governmental body; or (3) an appointed official in the executive, legislative or judicial branch of the Commonwealth of Pennsylvania or a political subdivision of the Commonwealth. Muscalus, Opinion 02-007. When the first portion of the definition is met, status as a public official subject to the Ethics Act is established, unless the exclusion for members of purely advisory boards is applicable. Eiben, Opinion 04-002. In order to be a “public employee” subject to the Ethics Act, one must be an “individual” and must stand in an employer-employee relationship with the Commonwealth or a political subdivision of the Commonwealth. Eiben, Opinion 04-002. In Myers, Opinion 96-004, the Commission determined that a corporate engineering firm that contractually performed engineering services for a township — but that had not been designated as the township engineer — would not be considered a “public employee” as defined by the Ethics Act because it was not an “individual.” Confidential Advice, 26-557 August 31, 2026 Page 5 Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. The Firm would not be considered a “public employee” as that term is defined by the Ethics Act with regard to its service to \[Political Subdivision 1\] or \[Political Subdivision 2\] because the Firm is not an individual in an employer-employee relationship with either \[Political Subdivision 1\] or \[Political Subdivision 2\]. The Firm would not be considered a “public official” as that term is defined by the Ethics Act with regard to its service to \[Political Subdivision 1\] because it has not been appointed as the \[Political Subdivision 1\] Engineer but rather has essentially been “hired” to do occasional projects for \[Political Subdivision 1\] on an as-needed basis. Cf., Rogers v. State Ethics Commission, 470 A.2d 1120 (Pa. Cmwlth 1984) (holding that a certified public accountant who was appointed to serve as a municipal auditor in lieu of an elected auditor was not a public official because the certified public accountant provided only the very limited services for which he was engaged, the services were performed over a short time period, and there was no ongoing relationship with the municipality). The Firm would not be considered a “public official” with regard to its service to \[Political Subdivision 2\] as the “\[Position Title\]” because: (1) the Firm has not been appointed as the \[Political Subdivision 2\] Engineer; (2) the \[Statute\] does not provide for an official position of “\[Position Title\]”; (3) an administrative review of the \[Political Subdivision 1 2\] Code of Ordinances fails to reflect that \[Political Subdivision 2\] has passed an ordinance to create the position of “\[Position Title\]”; and (4) the Firm’s services as the “\[Position Title\]” would be provided for occasional projects on an as-needed basis rather than as part of an ongoing relationship with \[Political Subdivision 2\]. The propriety of the proposed conduct only has been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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 requester 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 1 \[Citation to Website for Political Subdivision 2 Code of Ordinances\] (last visited August 27, 2026). Confidential Advice, 26-557 August 31, 2026 Page 6 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. Respectfully, Bridget K. Guilfoyle Chief Counsel