HomeMy WebLinkAbout91-532 SteigerwaltSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
April 25, 1991
Mr. Bruce R. Steigerwalt 91 -532
Borough Engineer
102 Manor Lane
Lehighton, PA 18235
Re: Conflict, Public Official /Employee, Borough Engineer, Plans,
Planning Commission, Borough Council.
Dear Mr. Steigerwalt:
This responds to your letter of March 6, 1991, in which you
requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law presents
any prohibition or restrictions upon you as a Borough Engineer from
reviewing plans for a proposed school on behalf of the Planning
Commission and Borough Council, when you were previously hired by an
architectural firm to provide a boundary and topographic survey for the
site where the school district plans to construct the new school and
where the architectural firm which had hired you, and another
engineering firm subcontracted by that architectural firm, are
performing all the design work necessary to meet the requirements of
the Borough's Subdivision and Land Development Ordinance.
Facts: As the Borough Engineer for the Borough of Lehighton,
Pennsylvania, your duties include review of subdivisions and land
development plans for the Borough Planning Commission and Borough
Council. This involves review of plans to determine if they contain
all plan requirements, and meet all design standards and required
improvements as outlined in the Borough's Subdivision and Land
Development Ordinance. You were hired last year by an architectural
firm to provide a boundary and topographic survey for a property owned
by the Lehighton Area School District, on which site the District plans
to construct a new high school. The architectural firm and another
engineering firm subcontracted by the architectural firm are performing
all the design work necessary to meet the requirements of the Lehighton
Subdivision and Land Development Ordinance. You seek the advice of the
State Ethics Commission regarding whether it would be a conflict of
interest for you to review these plans for the proposed school on
behalf of the Lehighton Planning Commission and Lehighton Borough
Council.
Mr. Bruce R. Steigerwalt
Page 2
Discussion: As Borough Engineer for the Borough of Lehighton,
Pennsylvania, you are a public employee as that term is defined under
the Ethics Law, and hence you are subject to the provisions of that
law.
Section 3(a) of the Ethics Law provides:
Section 3.
(a) No
shall engage
of interest.
Restricted Activities.
public official or public employee
in conduct that constitutes a conflict
The following terms are defined in the Ethics Law as follows:
Section 2. Definitions.
"Conflict or conflict of interest." Use by a
public official or public employee of the authority
of his office or employment or any confidential
information received through his holding public
office or employment for the private pecuniary
benefit of himself, a member of his immediate
family or a business with which he or a member of
his immediate family is associated. "Conflict" or
"conflict of interest" does not include an action
having a de minimis economic impact or which
affects to the same degree a class consisting of
the general public or a subclass consisting of an
industry, occupation or other group which includes
the public official or public employee, a member
or his immediate family or a business with which he
or a member of his immediate family is associated.
"Authority of office or employment." The
actual power provided by law, the exercise of which
is necessary to the performance of duties and
responsibilities unique to a particular public
office or position of public employment.
"Business with which he is associated." Any
business in which the person or a member of the
person's immediate family is a director, officer,
owner, employee or has a financial interest.
In addition, Sections 3(b) and 3(c) of the Ethics Law provide in
part that no person shall offer to a public official /employee anything
of monetary value and no public official /employee shall solicit or
accept any thing of monetary value based upon the understanding that
Mr. Bruce R. Steigerwalt
Page 3
the vote, official action, or judgement of the public official /employee
would be influenced thereby. Reference is made to these provisions of
the law not to imply that there has or will be any transgression
thereof but merely to provide a complete response to the question
presented.
Turning to your specific inquiry, you would be prohibited under,
Section 3(a) of the Ethics Law from reviewing the plans for the
proposed school on behalf of the Lehighton Planning Commission and
Lehighton Borough Council where you were previously hired by an
architectural firm to provide a boundary and topographic survey for the
construction site, and where that architectural firm and another
engineering firm subcontracted by that architectural firm are
performing all the design work necessary to meet the requirements of
the Borough's Subdivision and Land Development Ordinance.
The Commission has considered similar questions under both former
Act 170 of 1978 and Act 9 of 1989. In Ferrero, Order 720,
(reconsideration denied, Order 720 -R), the Commission held that a
municipal engineer violated Section 3(a) of the former Ethics Act, Act
170 of 1978, when he reviewed or approved plans for persons who
employed him or with whom he had a business relationship. The
Commission stated:
Your actions in simultaneously representing
the municipal bodies and clients on the same
matters is indicative of the type of conflict that
the Ethics Act was designed to prohibit. Although
public office is a public trust (65 P.S. 401), you
have used public office for your own personal
financial gain by privately working on plans for
compensation which thereafter would come before you
as municipal engineer for your review /approval.
Such action on your part reflects the highest level
of insensitivity and total disregard for public
office. In several instances, there is no way of
knowing whom you are representing in your work or
action - the municipal body or the private client.
One thing is clear in all of these instances - you
are ultimately representing yourself and the
advancement of your own financial aggrandizement at
the expense of the public trust. It is obvious to
this Commission that you have developed a
financially secure relationship whereby a private
client can come to you for engineering services
with an implicit self - assurance that the work which
you perform for them will be later reviewed by you
in your official capacity with a future approval
guaranteed.
Mr. Bruce R. Steigerwalt
Page 4
Such actions on your part constitute a
violation of Section 3(a) of the Ethics Act. All
of the component elements of Section 3(a) have been
implicated in these circumstances. As a public
employee, you have used public office through the
review /or recommendation for approval of plans as
to which you also performed private engineering
services. You obtained a financial gain in two
respects: the private fees and that portion of
your municipal compensation wherein you
reviewed /recommended for approval your own private
engineering work. The gain is other than
compensation provided by law because no
authorization exists for you to be paid for
reviewing /approving your own private work.
Ferrero, Order 720 at 64 -65.
Significantly, the Commission referred the Ferrero matter to the
appropriate law enforcement authority with the Commission's
recommendations that a prosecution be instituted against Mr. Ferrero.
In a request for reconsideration, Mr. Ferrero challenged the
finding of a violation of Section 3(a) of the Ethics Act on his theory
that he did not actually approve the plans. Mr. Ferrero additionally
asserted that his involvement with private individuals appearing before
the boards was reflected on the submitted plans, and he stated that he
did not intend to deceive and the boards had knowledge of his
involvement so that he felt there was no violation of the public trust.
The Commission dispelled this argument:
Your argument totally ignores the most culpable
aspect of your actions; that you represented both
sides (the municipality and the private client) in
several specific instances; a situation which was
certainly adverse to the public interest. A clear
violation of the public trust exists when you as
public employee reviewed, passed upon or
recommended for approval plans for which you
received fees for performing private engineering
services.
Ferrero, Order 720 -R at 3.
Similarly, under the facts which you have presented, you would be
reviewing the plans to construct the new high school on the very site
for which you provided a boundary and topographic survey. Although
Ferrero, supra, was decided under the former Ethics Act, its reasoning
would clearly apply to your case. In your case, the proposed conduct
would be a clear violation of the public trust because you, as a public
Mr. Bruce R. Steigerwalt
Page 5
employee would be reviewing, passing upon, or recommending for approval
plans for which you received fees for performing private engineering
services.
In Widmer, Order 608 -R, a Beaver County Commissioner was alleged
to have violated Section 3(a) of former Ethics Act 170 of 1978 by
voting to award consulting engineering contracts to a certain
engineering corporation while at the same time his firm had an on -going
business relationship with that engineering corporation, resulting from
a subcontract with said corporation. The Commission was guided by its
opinion in Sowers, Opinion 80 -050, where the Commission opined that a
public official /employee must refrain from participation in projects or
proposals from private business interests when the project or proposal .
is subject to the public employee's /official's review when either of
two situations occur:
1. The official /employee seeks or can legitimately anticipate
performing services for that business entity;
2. The official /employee has obtained work from that business entity
and subsequently is asked to vote on matters relating to said
entity which arose after the official /employee obtained the work
services from that entity.
Widmer, supra., at 19.
Although the Commission in Widmer did not specifically determine
that the Act had been violated due to conflicting evidence and
statements which could not be further developed through those
Commission proceedings, the Commission did refer the matter to the
appropriate law enforcement authority for appropriate review and
disposition. See also, Miller, Opinion 89 -024.
It is clear that the reasoning of the Commission under all of
these former cases would apply to your case. Under the Ethics Law, you
would therefore be precluded from reviewing the plans for the proposed
school on behalf of the Lehighton Planning Commission and Lehighton
Borough Council.
The propriety of the proposed conduct has only been addressed
under the Ethics Law; the applicability of any other statute, code,
ordinance, regulation or other code of conduct other than the Ethics
Law has not been considered in that they do not involve an
interpretation of the Ethics Law. Specifically not addressed herein is
the applicability of the Borough Code.
Conclusion: As Borough Engineer for the Borough of Lehighton,
Pennsylvania, you are a public employee subject to the provisions of
the Ethics Law. Section 3(a) of the Ethics Law would prohibit you as
the Borough Engineer for the Borough of Lehighton, Pennsylvania from