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HomeMy WebLinkAbout81-507 MolnarSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 February 4, 1981 ADVICE OF COUNSEL John Molnar, Esquire P.O. Box 147 Bangor, PA 18013 RE: Township Engineers, Dual Employment Dear Mr. Molnar: 81 -507 This responds to your letter of October 20, 1980, in which you, as Solicitor to Plainfield Township, requested an opinion from the Ethics Commission. Issue: In your letter you present two issues for resolution: (1) May a Township Engineer represent a developer by presenting plans to the Township at the same time he is reviewing the developer's plans for the Township, and; (2) Whether the Township may hire an alternate engineer if the Ethics Act prohibits the Township engineer from presenting a developer's plans to the Township and then reviewing those plans. Facts: We assume that the Township engineer is representing a developer by presenting the developer's plans to the township for approval. The engineer then must review the plans and make recommendations to the Board of Supervisors of Plainfield Township. Discussion: The Municipal Code defines the duties of a Township Engineer in a Township of either the first or second class, in pertinent part, as follows: "The township engineer shall perform such duties as the township supervisors shall prescribe .... He shall prepare plans, specifications and estimates of all such work undertaken by such Township, and shall, whenever required, furnish the township John Molnar, Esquire Februray 4, 1981 Page 2 supervisors with reports, infor- mation or estimates on any township engineering work, or on questions submitted by any of them in their official capacity." See 53 P.S. §56304, 65586. Because the duties of a Township Engineer include planning and recommending or disapproving submitted plans, the engineer is a public employee as that term is defined in the Act. 65 P.S. §402. See also Simmons, 79 -056. A previous decision of the Commission in an analogous situation presented by a zoning officer issuing building permits for houses the zoning officer built is instructive. In Simmons 79 -056 the Commission ruled that there is an appearance of a conflict with the public trust when the person reviewing an application is the same person who is making the application. That ruling is controlling here. When the engineer presents plans, he is acting as an advocate for the developer who presumably pays him for that service. When the engineer reviews plans as Township Engineer, he is acting as an impartial expert advisor to the Board of Supervisors which pays him for that service. The engineer's financial interests vis -a -vis the developer present an appearance of a conflict with the public trust and violate the provisions and the spirit of the Ethics Act. 65 P.S. §401. Accordingly, the Township Engineer, to avoid this appear- ance of a conflict of interest, must not review plans in his official capacity where he represents the developer presenting those plans. The Township can hire an alternate engineer to review plans presented by the Township Engineer on behalf of a developer, without violating the Ethics Act. Otherwise, the question of such an alternate engineering contract is within the legal and practical discretion of the Township. Conclusion: A Township Engineer is subject to the provisions of the Ethics Act. A Township Engineer who presents a developer's plans may not review these plans for the Township Board of Supervisors without an appearance of a conflict of interest under the Ethics Act. The Township can hire another engineer to review plans presented by the Township Engineer without violating the Ethics Act. Pursuant to Section 7(9)(ii), this Advice is a complete defense in any enforcement proceeding initiated by the Commis- sion, 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. John Molnar, Esquire Februray 4, 1981 Page 3 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 may be scheduled and a formal Opinion from the Commission will be issued. You should make such a request or indicate your disapproval of this Advice within the next 30 days. SW /rdp Si'cerely, ristianson General C. nsel $