HomeMy WebLinkAbout84-627 HartmanDear Mr. Hartman:
Robert G. Hartman, Jr.
c/o John E. Slike, Esquire
Arnold & Skike
2109 Market Street
P.O. Box 737
Camp Hill, PA 17011 -0737
Metnn Address
_
November 7, 1984
ADVICE OF COUNSEL
Re: Municipal Engineer, Private Clients Plans
84 -627
This responds to your letter of September 12, 1984, in which you
requested advice from the State Ethics Commission.
Issue: You ask whether a Municipal Engineer may also serve as engineer and
prepare plans for private clients submitting applications to the municipal
entity or entities you serve and what, if any, restrictions you face in these
roles under the Ethics Act.
Facts: You indicate that you are a professional engineer. Several
Municipalities, hereinafter collectively refered to as the Municipality
appointed you engineer, and as an engineer, you also provide services,
including preparing land development and subdivision plans, for example, to
private clients. On occasion, these plans of private clients must be
submitted to the Municipal Planning Commission, hereinafter, the Planning
Commission, for review by the Planning Commission.
In the course of your private work, that is, processing plans for
subdivision or land development in the municipalities in which you are
appointed as Engineer, it has always been your practice to indicate to the
reviewing or approving Municipality that you represent or have prepared plans
for the private clients whose plans the Municipality is to review. Further,
you indicate, under such circumstances, that the Planning Commission of the
Municipality should carefully review these plans as should the governing body
of the Municipality so as to make certain that the plans comply with the •
Municipality's ordinances .
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Robert G. Hartman, Jr.
November 7, 1984
Page 2
In addition, however, while the Municipality has been made fully aware of
your involvement with the preparation with these land development or
subdivision plans, the submissions do contain a block for the signature of the
official approval of the Municipal Engineer. This approval states that the
Engineer has reviewed the plans or submiss -ion and that they meet the
requirements of the Municipality. It has been your practice to sign this
approval, rather than to leave it blank, or to engage a separate engineer to
review your work. In making this approval, your attorney indicates that you
are acting only in an "advisory capacity and the ultimate approval of the plan
is made by governing body of the Municipality ". You have indicated in certain
instances that you are willing to have an independent review made of plans
under the circumstances as are described above, if the Municipality chose to
do so, but, to date, none of the Municipalities you represent have ask for
such an independent review.
Finally, the letter of your attorney indicates that in most cases the
submissions made to the Municipality are routine one or two lot subdivisions
or plans which do not involve extensive public facilities. Nevertheless, in
some cases, the plans submitted to the Municipality for its final approval may
plans on which you, as a private engineer, have worked and these plans involve
"larger developments" wherein work has been done involving streets, storm and
sanitary sewers, for example.
You ask whether this is a situation which gives rise to a conflict of
interest and should be avoided or whether as the Municipal Engineer you may
prepare and present such plans on behalf of private clients to the Planning
Commission, for example, and to the Municipality and if so, what restrictions
arise under these circumstances under the Ethics Act.
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, you are a public employee- official and, therefore,
required to comply with the provisions of the State Ethics Act. See Bryan,
80 -014.
As you have indicated, you also do engineering work for private clients.
On occasion, you prepare plans for these clients which must be presented to
the Planning Commission, which we have concluded in prior opinions, is 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 its one of
responsibilities is to make reports and recommendations to the Municipality
regarding the approval of plans, for example. Likewise, with respect to the
Robert G. Hartman, Jr.
November 7, 1984
Page 3
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 financial gain for himself or a
business 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, the Engineer must observe
these specific requirements of the Ethics Act when he undertakes the task of
providing professional services and recommending approval or disapproval of
plans to the Municipality as reviewed by the Planning Commission.
As a Municipal Engineer, an 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 should 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
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.
Robert G. Hartman, Jr.
November 7, 1984
Page 4
This conclusion and the above discussion are effective notwithstanding
the fact that your approval as Municipal Engineer of plans is considered by
you and by your attorney, pursuant to his letter, to be "only an advisory"
type of approval. This is precisely the situation where the Commission's
opinions have indicated that the preparer of the plan may not act in any
official capacity, even as an engineer, to recommend approval or provide an
indication of conformity with Municipal ordinances, with respect to the plan
on which he worked in his private- engineering capacity. The fact that these
plans may be "simple ones" or complex, likewise, does not alter our
conclusion. The public must be assured that your financial interests as an
engineer performing private services and your official judgment and the
interests of the Municipality you serve as Engineer do not conflict.
Accordingly, we reach the following conclusion.
Conclusion: As a public official /public employee serving as Municipal
Engineer your conduct in relation to this public post and private employment
should be governed by guidelines expressed above. Specifically, in your
capacity as Municipal Engineer, you must:
1. not use your official position to obtain any business in a private
capacity as engineer;
2. not utilize confidential information gained through your official
position as Municipal Engineer;
3. refrain from participating in discussions, review, or recommendations
on matters including signing off on plans which directly relate to clients you
served as a private engineer which may have been subject to the review and
approval and recommendation authority of a Planning Commission and /or
subsequently reviewed for approval by the Municipality itself;
4. make public your relationship to such private clients with respect to
any plans or recommendations that may come before the Municipality for final
or further review and approval; and
5. not review or approve,including not signing such plans in your
capacity as Municipal Engineer, on behalf of the Municipality, any plans on
which you or a business with which you are associated worked as a private
engineer.
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.
Robert G. Hartman, Jr.
November 7, 1984
Page 5
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 request that the full Commission review this Advice. A
personal appearance before the 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 /sfd
Sincerely,
Sa dra S. Chr
General Couns
ianson