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HomeMy WebLinkAbout82-592 EwaysMr. M. J. Eways, P.E., President Mast Engineering Co., Inc. 438 Walnut Street Reading, PA 19601 Mailin Address STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 December 6, 1982 ADVICE OF COUNSEL RE: Conflict of Interest; Planning Commission Dear Mr. Eways: 82 - 592 This is in response to your letter dated November 1, 1982, in which you, as President of Mast Engineering Co., Inc., requested advice from the State Ethics Commission. Issue: You requested advice as to whether you, as Township Engineer, should continue to advise the Township Planning Commission on a matter in which you have substantial interest where approval of that issue by membrs of the Board of Supervisors apparently is not unanimous and the Board itself has not yet taken official action on the matter. Facts: Mast Engineering Co., Inc. was appointed Township Engineer for Robeson Township, Berks County, hereinafter the Township. There is no retainer set or paid, and you work with the Township on a job -by -job basis. You do not attend Township meetings unless requested to do so, but you do attend Planning Commission meetings. A property owner has engaged you to prepare plans for a landfill, Phase I of which required topography, which you prepared, and geological information for which an outside geologist was hired by the developer. Prior to your submitting any items to DER you made a complete disclosure to the Township of your role as Engineer for the property owner. As a result of such disclosure questions were raised to the Board of Supervisors particularly by one member who also works for a neighboring school district as to the propriety of your role in this project. That school district board has since passed a resolution expressing concern over the proposed landfill but to your knowlege, the Board of Township Supervisors has not yet taken any official action in opposition to the landfill. State Ethics Commission / 308 Finance Building • Harrisburg, Pennsylvania Mr. M. J. Eways, P.E., President December 6, 1982 Page 2 Prior to these activities, DER and the Chamber of Commerce sponsored a meeting at the Berks County Campus of Penn State with all elected officials and Planning Commission members and the County Commissioners present, at which time the officials were presented with evidence of the urgent need for landfills and asked not to oppose such landfills. In view of this expression of need for a landfill and the fact that you have already undertaken efforts on behalf of the property owner, you ask whether advising the Planning Commission and representing the developer concurrently constitutes a conflict or the appearance of a conflict of interest. Discussion: The Ethics Act, 65 P.S. §401 et. seq., was enacted to issure that public officials "present neither a conflict nor the appearance of a conflict with the public trust." In your case, your serving as the Township Engineer in this matter concurrently with your representing the private developer constitutes at least the appearance of a conflict with the public trust. You are, therefore, required to avoid even the appearance of a conflict of interest under the Act. In its opinion in Alfano, 80 -007, the Ethics Commission held that a conflict of interest exists when an individual represents two or more persons with adverse interests. As you point out, the Board of Township Supervisors has not yet taken any official action on the matter, but your duties with respect to your position as Township Engineer are to advise the Planning Commission and the Board and to review all items submitted to them in the best public interest. Your duty to the private developer is to further his interests to your best abilities. While the landfill may indeed be in the best public interest, your advising the Board and the Commission in favor of the project would necessarily appear as lobbying in favor of your other client, the land owner, whether the Board adopts your view or not. You must avoid this situation, particularly where, as here, the Township and Planning Commission which you serve may have to decide upon the landfill design, plans, etc. and may call upon the Township Engineer to assist in this review and decision. Clearly you could not assist the Board or Commission in this process because of your association with the developer. See Simmons, 79 -056 and Sowers, 80 -050. In your letter, you presented two solutions to the problem: a) withdraw from representing the developer or b) have another engineer advise the Planning Commission and the Board on this matter. In this case, the second alternative appears to be the more reasonable. While you have, in effect, stated that you would support development of the landfill as being in the public interest whether you were involved in the project or not, it would appear that you were representing the interest of the developer, if you Mr. M. J. Eways, P.E., President December 6, 1982 Page 3 advise the Board and the Commission to support the landfill and they followed your advice. Likewise, if both the Board and the Commissioners decided not to follow your advice to support the project, you would indeed be representing two or more persons with adverse interests, and your duties toward one body would suffer or appear to suffer while you fulfilled your obligations to the other. Conclusion: In order to avoid even the appearance of a conflict of interest, you may not advise the Planning Commission on the Board of Supervisors on this particular landfill project, especially as it relates to your private client, the developer. You may plan no role in reviewing, advising upon or otherwise obtaining approval of the plans to be submitted to the Township or Planning Commission you serve as Engineer by your private client. 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. 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. CW /rdp Sincer -ly, ?: rr '�� � a alfdra S. Chrisfanson General Counsel