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HomeMy WebLinkAbout83-565 CrosswellMailing Address. STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 June 20, 1983 Mr. William C. Crosswell Morgan, Hallgren, Crowsswell & Kane, P.C. P.O. Box 4686 Lancaster, Pennsylvania 17604 -4686 Dear Mr. Crosswell: ADVICE OF COUNSEL 83 -565 RE: Township Engineer; Township Planning Commission; Abstention This responds to your letter of May 23, 1983, in which you, as Solicitor for Warwick Township, Lancaster County, Pennsylvania, requested advice from the State Ethics Commission. Issue: You ask whether the Township Engineer of Warwick Township may also serve as an appointed member of the Warwick Township Planning Commission. Facts: The Warwick Township Engineer would like to serve as an appointed member of the Warwick Township Planning Commission. The Township Engineer is also employed by a private engineering firm which, from time to time, prepares and submits plans for private developers which require review by the Warwick Township Planning Commission. You state that the Township Planning Commission acts only in an advisory capacity and has no approval or disapproval power with respect to either development plans or re- zoning request, with such powers being vested solely on the elected Board of Supervisors. In addition, you state that the Planning Commission would not participate in the appointment or re- appointment of the Township Engineer nor would the Township Planning Commission be involved in setting his compensation. You further state that should the Township Engineer be able to serve on the Township Planning Commission he would abstain from voting on any plan prepared by the private engineering firm by which he is employed and would make known to the public the reasons for his abstention. Discussion: Initially, the Ethics Commission notes that, as a statutory entity, its jurisdiction and its power are strictly limited to the authority granted it in 65 P.S. 401 et. seq. Thus, it has no authority to interpret and /or enforce the provisions of other codes, for example, the Second -Class Tow,nship Code or the Pennsylvania Municipalities Planning Code, and this Advice Should not be construed as clearance to act under other Commonwealth laws. State Ethics Commission • 308 Finance Building • Harrisburg. Pennsylvania Mr. William C. Crosswell June 20, 1983 Page 2 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 nor the appearance of a conflict with the public trust." As Township Engineer your client is a public employee /official and, is, therefore, subject to the requirements of the Ethics Act. Bryan, 80 -014. As you have indicated, the Township Engineer also works for a private firm, as a public official /employee, the governmental body with which he is associated is Warwick Township, which is separate and distinct from the Township Planning Commission. In this regard, if the Engineer were to become a member of the Planning Commission, his duties as Township Engineer and his duties as a member of the Planning Commission could possibly differ to the extent that a conflict or the appearance of a conflict of interest could occur. It is, therefore, necessary to examine the Engineer's duties with regard to both of his positions because while the Ethics Act was not designed to preclude public officials or employees from engaging in several endeavors, some restrictions must be imposed in order to insure the public that neither a conflict nor the appearance of a conflict with the public trust exists or arises during such service. Some of the pertinent provisions of the Ethics Act include Sections 3(a) and (b), see 65 P.S. 403(a) and (b), which provide that no public official may use his public office or confidential information received through his holding public office to obtain financial :gain for himself other than compensation provided by law, and that no public official may receive any thing of value, including the promise of future employment, on the understanding that his official conduct will be influenced thereby. As a Planning Commission member, the Engineer may be faced with the situation where the Planning Commission will need to approve plans submitted by the private firm (on behalf of developers) for which he works. While the Engineer is merely an employee of that engineering firm, that firm is a "business with which he is associated" under Section 3(a) of the Act. See definitions, Section 2 of the Ethics Act also. The Engineer, therefore, must, as you indicate he will, refrain from voting as a Planning Commission member on any matter arising regarding the firm for which he works. If such matters are presented to the Planning Commission members, the Engineer should publicly disclose the extent of his involvement in the matter and abstain from participation in discussions and votes on the matter. Such disclosure should be made at a public meeting and be incorporated into the minutes of that meeting. Sowers, 80 -050. Mr. William C. Crosswell. June 20, 1983 - =- Page 3 Similarly, under the Commissions ruling in Sowers, if the Engineer happens to vote as a Planning Commission member on a project and subsequently obtains employment with the developer /person on whose project he has voted, that subsequent employment should also be publicly disclosed. Further, the Engineer as a Planning Commission member, having been subsequently employmed by the developer /person upon whose project he voted, would be required to abstain from official actions . vis -a -vis the employer which might be subject to further official ,review or approval by the Planning Commission. Likewise, if the Engineer knows his firm will seek or can reasonably expect to seek /obtain work for or from the private developer /person whose plans are subject to his official review, the Engineer should abstain and make the reasons therefore public. With regard to the Engineer's duties in his capacity as Township Engineer, it should be noted that he would have to abstain from review of any plans for the Township that he had voted on or approved as a member of the Planning Commission because of the possibility of a conflict of interest inherent in such action. The restrictions cited above as to when abstention is required for the Engineer serving on the Planning Commission are equally applicable to the Engineer when serving as Township Engineer. Conclusion: As both a public official /public employee,. the Township Engineer's conduct in relation to both his public posts and his private employment should be governed by the guidelines expressed above. Specifically, the Engineer in his capacity as Planning Commission member or as Township Engineer must:' 1. Not use either of his official positions to obtain any business for the firm by which he is employed; 2. not utilize confidential information gained in his official capacities to obtain any business, promise of future employment, etc.; 3. refrain from participating in discussions and votes on matters which would directly relate to the clients of the engineering firm by which he is employed and which are presented on behalf of persons or developers who will seek, can be expected to seek, or have sought the services of the engineering firm or to whom the firm has offered its services with the respect to the specific projects subject to the Engineer's review or approval; 4. refrain from participating in discussions and votes on matters wich would directly relate to the engineering firm's clients which are presented on behalf of clients from whom the firm obtained work on matters subject to the Township's or Commissions review or approval where the work was obtained subsequent to initial review of the Township /Commission with the Engineer participating; Mr. William C. Crosswell June 20, 1983 Page 4 6. Not review, in his capacity as Township Engineer, any plans upon which he passed in his capacity as a Planning Commission member. If the guidelines as discussed above are adhered to, the Township Engineer's concurrent service as a member of the Township Planning Commission should constitute neither a conflict nor the appearance of a conflict with the public trust. 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 5. Make public his relationship and that of the Engineering firm, with any persons or developers who may come before the Planning Commission or Township, and the reasons for his abstention as required by Nos. 3 and 4 immediately above; and Sincerely, andra S. C stianson General Counsel