HomeMy WebLinkAbout86-606 YashinskyThomas V. Yashinsky, Manager
Tony Gee & Quandel, Inc.
P.O. Box A
474 North Centre Street
Pottsville, PA 17901
Mailing Address
State Ethics Commission
308 Finance Building
P. O. Box 11470
Harrisburg,, Pa. 17108 -1470
September 29, 1986
ADVICE OF COUNSEL
86 -606
Re: Simultaneous Service; Township Engineer, Zoning Officer, Sewage
Enforcement Officer
Dear Mr. Yashinsky:
This responds to your letter of August 20, 1986, wherein you requested
Advice from the State Ethics Commission.
Issue: Whether any prohibitions are presented under the State Ethics Act
where a consulting engineering firm simultaneously serves as township
engineer, zoning officer and building code enforcement officer as well as
sewage enforcement officer.
Facts: As the Manager of the Municipal Planning and Survey Services Division
of Tony Gee & Quandel, Incorporated, a consulting engineering firm, you have
requested the advice of the State Ethics Commission regarding the above issue.
You advised that the firm provides various professional engineering services
to North Manheim Township, Schuylkill County, Pennsylvania. The firm, in
part, provides typical professional engineering services to the township as
required by the township hoard of supervisors. The firm is compensated for
the services by the township. In addition, the firm also handles the issuance
of all zoning permits and building and highway occupancy permits. Applicants
make their payments to the township which in turn reimburses your firm for the
services provided. Your office also offers sewage enforcement services
through five (5) certified professionals all of whom have been appointed by
the township. Fees payable for the digging of percolation test holes are paid
to the township which in turn reimburses your firm for performing the testing
for applicants. Your firm does offer the option to the applicant of digging a
percolation test hole and this fee is paid directly to your firm. You also
provide, at no cost, suggestions to applicants on system designs. You do
advise the applicant that he or she need not utilize your design.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Thomas V. Yashinsky, Manager
September 29, 1986
Page 2
Discussion: As the regularly retained township engineer, the zoning
enforcement officer, code enforcement officer and sewage enforcement officer,
your firm would be considered a public employee within the purview of the
State Ethics Act. See Bryan, 80 -014; Hemsley, 80 -034. As such, the
requirements of the Ethics Act would be applicable to your firm and to any
individual who serves in that capacity as set forth in the above facts.
Generally, the State Ethics Act provides as follows:
Section 3. Restricted activities.
(a) No public official or public employee shall use his
public office or any confidential information received
through his holding public office to obtain financial gain
other than compensation provided by law for himself, a
member of his immediate family, or a business with which
he is associated. 65 P.S. 403(a).
Based upon the above provision of law this Commission has, on a number of
occasions, reviewed situations where township engineers, zoning officers or
code enforcement officers also serve private clients. The Commission, in
those situations, has determined that while there was no absolute prohibition
on such service, the township engineer, as a public employee, must insure that
this conduct does not violate the above provisions of the State Ethics Act.
Thus, the township employee, either as engineer, zoning officer, or code
enforcement officer, may not participate to any degree in the review and /or
consideration by his governmental body of the'private client's plans that are
presented to the governmental body. The public employee, regardless of the
position in which he serves, also may not use any confidential information
which he has received in his public position in order to accord benefits to
his private clients. See Shirk, 86 -601. Based upon the above provision, the
Commission has concluded, for example, that a zoning officer who is also a
developer could not issue permits to himself. Simmons, 79 -056. The
Commission has also ruled that a zoning officer is prohibited from being a
real estate agent in the township where he serves. Norris, 80 -053.
Additionally, the Commission has noted that a public official may not inspect,
approve, or othewise participate in the consideration of work that he did as a
private prcfessional. Sowers, 80 -050.
In addition to the foregoing, the State Ethics Act also provides that
this Commission may address other areas of possible conflict. 65 P.S. 403(e).
Generally, the parameters of the types of activities encompassed by this
particular provision of the Act are determined through a review of the purpose
and intent of the law. Generally, the State Ethics Act was promulgated in
order to insure the public that the financial interests of their officials do
Thomas V. Yashinsky, Manager
September 29, 1986
Page 3
not conflict with the public trust. A conflict of interest would develop
anytime where a public official or employee attempts to serve one or more
interests that are adverse. See Alfano, 80 -007; Fritzinger, 80 -008. In this
respect, the Commission has ruled, in the past, that where an individual
serves one or more governmental bodies that have separate and distinct
interests, their service to that governmental body must be separate and
distinct from their service to another governmental body that has similar
functions and duties but for different purposes. Thus, if you are serving the
township as a township engineer and also serve another governmental body such
as a zoning hearing board or planning commission as a professional, your
advice to each of these particular entities must be for the benefit of the
particular governmental body receiving said advice. Thus, a conflict may
develop if you, as a professional engineer for various bodies, review the same
project from a different perspective for each body. In such situations where
one project may come before different governmental bodies on which you serve,
you should abstain from participating at one level in a project in which you
have already offered advice on another level.
Finally, we note that in your letter of request you indicate that you do
offer some suggestions regarding sewege system designs for individuals who
apply to the township for the installation of sewage systems. In this
respect, certain problems could develop as these individuals, while under no
obligation to utilize your system, may feel it would be the better practice to
use the system design suggested by the official of the township who has the
overall authority of performing the percolation test for the township and
rendering advice to the township regarding sewage system designs. In this
respect, it could present certain problems under Section 1 of the State Ethics
Act. This is particularly so if the individual applicant who chooses to
install your particular design must have said design installed for a fee
privately. As such, you are advised that if you will be performing a function
or installation for an individual on a private basis who has submitted
applications to install a sewage design to the township for which you will
have official responsibilities, you must either forego the installation of
that system or abstain as a public official from participating in the
township's activities in relation to that system.
Conclusion: Generally, the State Ethics Act presents no per se prohibition
upon your simultaneous service as township engineer, sewage enforcement
officer and zoning officer. Your activities in relation to these positions
must _be in accord with the State Ethics Act as outlined above.
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.
Thomas V. Yashinsky, Manager
September 29, 1986
Page 4
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.
Sinc =rrfi ,
John J.
Gener• Counsel