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HomeMy WebLinkAbout91-608 HerrMr. Charles F. Herr, Jr. Environmental Input 2364 Commercial Blvd. State College, PA 16801 Dear Mr. Herr: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 31, 1991 91 -608 Re: Conflict, Public Official /Employee, Sewage Enforcement Officer, Business With Which Associated, Consulting Firm, Delineation of Wetland Boundaries. This responds to your letter of November 7, 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 a sewage enforcement officer with regard to performing private consultation services consisting of the delineation of actual wetland boundaries for properties as to which he would be acting in an official capacity as a sewage enforcement officer. Facts: As a Sewage Enforcement Officer (SEO), you seek the advice of the State Ethics Commission regarding your performance of private consultation services in a related field. You note that the testing and placement of on -lot sewage disposal systems in relationship to federal jurisdiction of wetlands has become an issue that the "SED must deal with in actual field conditions. Land Development Planning Modules, as promulgated by the Department of Environmental Resources (DER) require the location of wetland areas. " While it is necessary that the SEO insure proper isolation from actual wetlands, you state that the problem that has been occurring in the field is that the delineation of an actual wetland boundary is not within the scope of the regulatory duties of the SEO. However the line is required to determine exact isolation. Mr. Charles F. Herr, Jr. December 31, 1991 Page 2 Obvious wetlands such as marshes and swamps are rather easy in their determination of the boundary, while marginal wetlands with a gradual transition zone into uplands require more time and effort for delineation. You are federally trained in the delineation of jurisdictional wetlands using various methodologies. In many cases, you perform what is necessary to determine the actual wetland line so that you may determine needed isolation. You specifically inquire whether it would be appropriate for you as-the SEO to bill the municipality for the cost of services pertaining to the actual wetland delineation, with the municipality in turn billing the client. You acknowledge that the actual wetland delineation is a consultation service and is not a service performed under the SEO's policy. You additionally pose a question regarding what you perceive to be a conflict of interest in the field whenever a township supervisor is also an on -lot sewage disposal system installer. You state that an awkward situation is created whenever the SEO must inform the installer that the system has not been installed correctly, given that the installer also sits on the Board of Appeals which considers appeals from decisions of the SEO. Based upon all of the above, you request an advisory opinion from this Commission. You have submitted copies of prior correspondence between you and DER, which concluded that you could not perform wetlands delineation for sites as to which you would perform the duties of a sewage enforcement officer. These documents are incorporated herein by reference. It is noted that your letter of request has been submitted on stationery bearing what appears to be a business name "Environmental Input," and the following enumerated services: Sewage Enforcement Officer services; on -lot sewage disposal system designs; floodplain and wetland determinations; land development consultations. You have not indicated your precise relationship to Environmental Input, but you have placed its name with your signature which indicates to this Commission that you are an owner and /or employee of this business entity. Discussion: As a Sewage Enforcement Officer for a municipality, 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. Mr. Charles P. Herr, Jr. December 31, 1991 Page 3 Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 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 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 of 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 Mr. Charles F. Herr, Jr. December 31, 1991 Page 4 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 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. In turning to your specific inquiries, it is initially noted that only your first inquiry may be addressed, and only as to your own, prospective conduct. Your second inquiry may not be addressed because it is a third party request, not pertaining to your own conduct, and thus it is beyond the scope of a request for an advice /opinion. Generally,• the Ethics Law would not restrict you as an SEO from also working for a private firm unless that employment was adverse to, or inherently incompatible with the duties and responsibilities required of the Sewage Enforcement Officer. Smith, Opinion 89 -010. Conflicting or adverse interests exist where a public official /employee represents two competing interests simultaneously. In the instant matter, you have not clarified'your precise relationship to the consulting firm, "Environmental Input," and therefore it is expressly assumed for purposes of this advice that you are either,an owner or an employee. Thus, Environmental Input is by definition a business with which you are associated. Your proposed conduct in performing wetland boundary delineations for Environmental Input for the same properties as to which you would perform official duties as a Sewage Enforcement Officer would place you in a conflict where you would be serving two competing interests simultaneously. 'It would therefore be prohibited by the Ethics Law. In the course of your duties as an SEO, you are required to insure proper isolation from actual wetlands. Yet, the delineation of the actual wetland boundary is not within your regulatory duties as an SEO, but rather is determined in a Mr. Charles F. Herr, Jr. December 31, 1991 Page 5 vrivate capacity. Were you to consider, as an SEO, the delineation of actual wetland boundaries determined by Environmental Input and /or by yourself as a private individual, you would obviously find yourself with interests which were in conflict. al, Miller, Opinion 89 -024. As an employee and /or owner of Environmental Input serving private clients, your duty would be to those clients and to the firm. In your capacity as SEO, however, your primary duty would be to insure proper isolation from actual wetlands. This duty is to the public rather than to private clients. Furthermore, the tone of your letter suggests that you might be taking' it upon yourself to perform these private services. Such would be a use of authority of office to obtain a private pecuniary benefit for Environmental "Input and /or yourself. Even if the property owner sought your services, as noted in Miller, supra, persons wishing to have a particular determination of 'the needed isolation would probably favor having the wetland boundary delineation performed by Environmental Input, knowing 'that you as the SEO might then be in a position to use those delineations to their benefit. Your inherent conflict in this situation would not be extinguished merely by a billing arrangement in which Environmental Input would bill the municipality which in turn would bill the "client" for the cost of such services. Basically, the municipality would be serving merely as a conduit for the payment for your private services and the concern as to conflicting duties to the public and to private clients would remain. Indeed, it is significant that in posing such a billing arrangement in your letter of inquiry, you characterize the property owner rather than the municipality as the "client." Thus, while the question which you originally posed was whether it would be appropriate for the SEO to bill the municipality which in turn would bill the "client" for the cost of services pertaining to wetland boundary delineations, the real question is whether you as the SEO could even perform wetland delineation services for properties as to which you are acting in your official capacity as SEO. The answer, based upon the prior decisions of this Commission, is that you could not. 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. Mr. Charles F. Herr, Jr. December 31, 1991 Page 6 such. Conclusion: As a Sewage Enforcement Officer for a municipality in Pennsylvania, you are a public employee subject to the provisions of the Ethics Law. You may not perform private services of wetland boundary delineation for properties as to which you are acting in your official capacity as a Sewage Enforcezent Officer. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant -to Section 7(11), 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 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code S2.12. Sincerely, 07/..,,m,e Vincent J. Dopko Chief Counsel