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HomeMy WebLinkAbout82-593 HarrisonMr. Peter N. Harrison 107 East Court Street P.O. Box 6 Doylestown, PA 18901 Dear Mr. Harrison: Mailin Address. STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 December 7, 1982 ADVICE OF COUNSEL RE: Conflict of Interest; Engineering Services 82 - 593 This is in response to your letter dated November 4, 1982, in which you, as the Solicitor for Durham Township, requested advice on behalf of R. C. Cowan Associates, Inc., the Township Engineer. Issue: You requested advice with regard to your client's continued perfor- mance of engineering services for a manufacturing facility about which there are zoning complaints apparently unrelated to your client's services. You also ask whether your client should be called upon to testify on behalf of the Township Supervisors with respect to the alleged zoning violations if a conflict of interest is indeed found to exist. Facts: The Durham Township Engineer, hereinafter the Engineer, R.C. Cowan Associates, Inc., located in Quakertown and Jim Thorpe, Pennsylvania, was engaged by a manufacturing company located in Durham Township for the purpose of performing engineering services including, but not limited to, measures to comply with the requirements of the Department of Environmental Resources A number of neighbors in an adjacent residential area have raised ques- tions concerning the facility's complaince with air and noise pollution provi- sions of the Township's zoning ordinance. Should these complaints reach liti- gation proportions, you anticipate that the supervisors may be required to call upon the Engineer for an opinion with respect to the alleged violations. There is additional engineering work to be performed on behalf of the manufacturing facility, but in view of the fact that the alleged zoning viola- tions might require the participation of the Township Engineer on behalf of the Board of Supervisors, you recommended to the Board that all future work the Engineer might perform for the facility might give the appearance of a conflict of interest in the event he is called upon to participare in any proceedings against the facility or behalf of the Township. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Peter N. Harrison December 7, 1982 Page 2 Discussion: The Ethics Act, 65 P.S. §401 et. seq., was enacted to insure that public officials "present neither a conflict nor the appearance of a conflict with the public trust," It is apparent that if, as you seem to anticipate, the neighbor's complaints reach litigation propriations, there would exist at least the appearance of a conflict of interest if the Township Engineer continues to perform services for the manufacturing facility related to the alleged zoning violations and at the same time the Board of Supervisors finds it necessary to call upon the Engineer for an opinion with respect to the alleged zoning ordinace violations. It is, therefore, incumbent upon the Township Engineer 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 con- flict of interest exists when an individual represents two or more persons with adverse interests. If all past and future work performed by the Engi- neer for the manufacturing facility was, and will continue to be, unrelated to any zoning violations, the Engineer could not be said to actually be represen- ting parties with conflicting interests. If this is not the case and any work the Engineer does for the manufacturing firm relates to the alleged zoning violations which the Township may be required to consider, a different result obtains. In such an instance the Engineer would indeed be representing two or more persons with adverse interests, thus creating at least the appearance of a conflict of interest. In this regard, to answer your question more fully, the Township Engineer has two options: he may either continue to perform engineering services for the manufacturing facility with the understanding on the part of the Board that he is neither to advise them in any way nor testify in the matter(s), which may come before the Board, or he may discontinue future service to the facility with respect to the questions which might face the Board, while continuing to advise the Board on the matter. Where the Engineer's services are unrelated to the neighbors' complaints or matters which may be reasonably forseen as not coming before the Township for decision he would not be serving interests which would be adverse to each other and could continue such simultaneous service. Conclusion: If the Engineer's past and continued services to the manufac- turing facility would be unrelated to any zoning ordinance violations, the Engineer could serve both the facility and the Board in the event of litiga- tion. If his services to the facility and the Township relate or may reason- ably be expected to relate to matters submitted to the Township, he may: (1) perform services for the facility in which case it would be a conflict of interest for him to advise the Board or testify on its behalf or (2) he must Mr. Peter N. Harrison December 7, 1982 Page 3 discontinue serving the facility, in which case there would be no appearance of a conflict of interest if he were to both advise the Board and testify on its behalf. In any event, the Township Engineer may perform services for both the facility and the Township so long as that service does not violate the concepts discussed herein. 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 Sincerely, / s Sa1T1 a S. Christi son General Counsel