HomeMy WebLinkAbout82-554 HeslerMr. Gary M. Hesler
Hesler Associates, Inc.
125 North Eighth Street
P.O. Box 319
Reading, PA 19603 -0319
Mailing Address:
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
June 8, 1982
ADVICE OF COUNSEL
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
82 -554
RE: Townhship Engineer - Inspector of Project He Designed - Conflict
Dear Mr. Hesler:
This responds to your letter of March 27, 1982 in which you requested
advice from the State Ethics Commission.
Issue: May an appointed Township engineer prepare subdivision or land
development plans for a private client with the municipalities he serves?
May an engineer perform construction inspection on an public improvements
project in his capacity as a Township engineer, on a project he designed on
behalf of a private client?
Facts: You are President of Hesler Associates, Inc., a private engineering
firm located in Reading. You write the Commission with respect to the effect
of the Ethics Act on your duties as Township engineer and on your business
interests as an engineer within the Township. We assume that as a Township
engineer you would be obligated to review plans submitted to the Township for
approval and to make recommendations for such approval.
Discussion: As a Township engineer, you are a public employee subject to the
provisions of the Ethics Act, 65 P.S. §401 et seq. Bryan, 80 -014. Thus, your
activities during your tenure must present neither a conflict nor the
appearance of a conflict with the public trust.
The Ethics Commission has held that a conflict exists when an individual
represents two or more persons whose interests are adverse to each other.
Alfano, 80 -007. In the scenario which your questions to the Commission
present, you would be representing both the Township, as its engineer, and the
private client, as its plan developer. Because the duties of the engineer
would include performing construction inspection on the same projects the
engineer prepared privately for the client, an irreconcilable conflict of
interest would exist.
Mr. Gary M. Hesl er
June 8, 1982
Page 2
The purpose of the construction inspection is to insure that the laws and
regulations of the Township are enforced. For this to occur, the person
inspecting the construction must not be the person who has prepared or had an
interest in the approvals of the construction plan and design in the first
place. Otherwise an apparent, if not an actual, conflict of interest would
exist, in violation of the Ethics Act. See Simmons, 79-056.
Conclusion: An appointed Township engineer may not prepare subdivision or
land development plans for a private client within the municipalities he
serves when the same engineer must review and recommend, as Township engineer,
these plans or thereafter perform construction inspection on these private
projects. If the plans which the engineer prepares will not be subject to
review ai,d recommendation or any further inspection by the engineer or if
some other engineer is to review /inspect the particular project on which
you acted as private engineer, then no apparent conflict is presented.
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.
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.
BF /rdp
This letter is a public record and will be made available as such.
Sincerely,
Salidra S. Chri ianson
General Counsel