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HomeMy WebLinkAbout84-600 StillwagonWilliam C. Stillwagon, Esquire 319 South Maple Avenue Greensburg, PA 15601 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 August 16, 1984 ADVICE OF COUNSEL Re: Township Engineer, Private Client's Plans 84 -600 Dear Mr. Stillwagon: This responds to your letter of July 31, 1984, in which you, as solicitor for a municipality in Westmoreland County, requested advice from the State Ethics Commission. Issue: You ask whether the municipal engineer may also serve as engineer and prepare plans for prospective applicants submitting applications to the municipal planning commission. Facts: You indicate that you are solicitor for a municipality in Westmoreland County, hereinafter, the Municipality. The Municipality has appointed an engineer, hereinafter, the Engineer who, as an Engineer, also provides services to private clients. On occasion, these plans must be submitted to the Municipal Planning Commission, hereinafter, the Planning Commission, for approval by the Planning Commission. The plans submitted are submitted on behalf of the individual clients and only the field work and actual drafting is done by the Municipal Engineer. You ask whether this is a situation which gives rise to a conflict of interest and should be avoided or whether the Municipal Engineer may prepare and present such plans on behalf of private clients to the Planning Commission. Discussion: Initially we note that the Pennsylvania State Ethics Act, 65 P.S. 401 et seq. was enacted to insure the public that the financial interests of holders of or candidates for public office "present neither a conflict of interest nor the appearance of a conflict with the public trust." As Municipal Engineer, your client is a public employee - official and, therefore is required to comply with the provisions of the State Ethics Act. See Bryan, 80 -014. William C. Stillwagon, Esquire August 16, 1984 Page 2 As you have indicated, this Municipal Engineer also works for private clients. On occasion, these clients must present plans to the Planning Commission, which we have concluded in prior opinions, a separate distinct entity from the Municipality which established the Planning Commission. Crosswell, 83 -565. However, we must also recognize that a relationship does exist between the Planning Commission and the Municipality which is served by the Planning Commission. Specifically, the purpose, according to our understanding of the Planning Commission and its responsibilities, is to make reports and recommendations to the Municipality regarding the approval of plans, for example. Likewise, with respect to the Engineer's duties and responsibilities vis -a -vis the Municipality, it is clear that he must be in a position to provide professional services and recommendations on an impartial basis to the Municipality with regard to plans and their approval or rejection, given the recommendations of the Planning Commission. Given these duties and responsibilities we must also review the requirements of the State Ethics Act as applicable to public officials and public employees. Specifically, the Ethics Act provides that no public official may use his public office or confidential information received through his holding public office to obtain finanical gain for himself or a businesss with which he is associated and no public official may receive anything of value, including the promise of future employment, on the understanding that his official conduct will be influenced thereby. See Section 3(a) and (b) of the Ethics Act, 65 P.S. 403(a) and (b). Thus, as a public official /employee within the Municipality this Engineer must observe these specific requirements of the Ethics Act when he undertakes his functions of providing professional services and recommending approval or disapproval of plans to the Municipality as reviewed by the Planning Commission. As a Municipal Engineer, this Engineer may be faced with a situation where the Planning Commission has been asked to approve or make a recommendation to the Municipality with respect to plans prepared by this Engineer as a private Engineer or by a member of his firm. In such a situation, the Engineer should publicly disclose the extent of his involvement in the preparation of the plans that are being submitted to the Municipality, following the Planning Commission's review for acceptance or rejection and, additionally, he should abstain from participating in review, recommendations and discussions regarding the Municipality's action on such plans. Such disclosure shoud be made at a public meeting and should be incorporated in the minutes of that meeting. See Sowers, 80 -050. This conclusion derives from the fact that the Engineer must insure that his conduct presents neither a conflict or the appearance of a conflict with the public trust. Previously rulings of the Commission indicate that as a general rule, a public official or employee may not review, approve, or inspect or take any official action in which he might be interested as an individual. For example, the Commission concluded that a zoning officer who William C. Stillwagon, Esquire August 16, 1984 Page 3 is also a developer could not issue permits to himself. Simmons, 79 -056. Similarly, the Commission has concluded that a developer who is an elected township supervisor could not inspect or approve his own work as a developer. See Sowers, supra. With respect to auditing, Commission rulings also indicate that an auditor may not audit the township books, where the spouse of the auditor serves as supervisor. Restivo, 80 -518 and Detweiler, 81 -648. Conclusion: As a public official /public employee serving as Engineer for this Municipality, this Engineer's conduct in relation to his public post and his private employment should be governed by guidelines expressed above. Specifically, this Engineer, in his capacity as Municipal Engineer must: 1. not use his official position to obtain any business in a private capacity as Engineer; 2. not utilize confidential information gained through his official position as Municipal Engineer; 3. refrain from participating in discussions, review, or recommendations on matters which directly relate to clients he has served as a private Engineer which may have been subject to the review and approval and recommendation authority of a planning commission and subsequently reviewed by the Municipality itself. 4. make public his relationship to such a private client with respect to any plans or recommendations that may come before the Municipalality for final or further review and approval; and 5. not review in his capacity as Municipal Engineer on behalf of the Municipality any plans on which he worked as a private Engineer. If the guidelines discussed above are adhered to, the Municipal Engineer may concurrently serve as Municipal Engineer and private Engineer for clients even where those clients may be required to submit plans to the Planning Commission and /or the Municipality. Pursuant to Section 7(9)(ii), 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. This letter is a public record and will be made available as such. William C. Stillwagon, Esquire August 16, 1984 Page 4 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 full Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. SSC /na Sincerely, Sa dra S. Ch General Coun /el tianson