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HomeMy WebLinkAbout95-533 BakowiczDear Mr. Bakowicz: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 22, 1995 John R. Bakowicz, P.E. 533 Race Street Sunbury, PA 17801 Re: Conflict, Public Official /Employee, Municipal Subdivision, Private Residence Abutting Lot in Subdivision. 95 -533 Engineer, Proposed This responds to your letter February 21, 1995 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 municipal engineer in participating as to a proposed subdivision submitted to the township when the rear lot line of the engineer's private residence abuts a proposed lot in that subdivision. Facts: You own and operate a small consulting engineering firm specializing in providing surveying and engineering services to municipalities in your area. You have been the Engineer for Upper Augusta Township, Northumberland County and Upper Augusta Municipal Authority Engineer for many years. At a recent Upper Augusta Township Meeting, the Planning Commission Chairman advised the Township that his commission had recently been presented with a "Sketch Plan" of a proposed major subdivision which was being reviewed as an "unofficial" submission. The Plan shows eight (8) lots fronting on a proposed Township Road ending in a cul de sac. A short sewer extension is proposed. Your rear lot line lot /residence would abut a proposed lot fronting on the proposed cul de sac. Traditionally, your review as Township Engineer starts when a preliminary plan and fee is submitted to the Township. The Township authorizes you to proceed with the engineering review as required by the Township Subdivision and Land Development Ordinance. The preliminary plan has not yet been submitted. The Bakowicz, John R., 95 -533 March 22, 1995 Page 2 engineering review would compare the subdivision plan submission for compliance with said Ordinance followed by an initial submission of a written report to the Township Planning Commission and Township Supervisors outlining any plan deficiencies. A final plan review and report would similarly be prepared by you. During construction, you would be required to periodically observe the construction to assure compliance with the approved subdivision plan. Other engineering services would be performed in the course of the process pursuant to the requirements of Act 170, as amended, the Municipalities Planning Code and other applicable Township Ordinances and Resolutions, Rules and Regulations of the Municipal Authority. Your review as Municipal Authority Engineer is complimentary to the Township Engineering review which is required whenever a connection to the public sewer system is proposed, as is in the proposed development. No acquisition nor rights of way over your 1/2 acre parcel with dwelling are proposed. You know of no direct effects of the development on your property. The fees for your services would be provided by the Township and /or Municipal Authority. The Township also requires a subdivision filing fee(s) from the developer, based on an approved Fee Schedule. You know the proposed developer who is a member of your Church since the early 1970's. The only previous involvement you have had with the developer was in an engineering review of a subdivision plan in the early to mid 1970's. The developer was an employee of a home building firm and you made a review in your capacity as an employee for an Engineering Firm which was the Township Engineer. The development was located in the same Township and eventually got approved. The difference now is that you are self employed and are Township Engineer while the developer is now owner of the development and owner of a building firm that will likely build dwellings on the proposed lots. You conclude by posing the following two questions: "Question 1: Would my plan review and other services as Township Engineer regarding this proposed development violate the Ethics Law? Question 2: If your opinion to Question 1 is "Yes ", then the Township decision on subdivision plan approval would consider only the comments and recommendations of the Planning Commission and /or the Engineer, if the Township chooses to retain one for their review. If this takes place, would it be a violation of the Ethics Law for me to provide my comments to the Planning Commission and to the Board of Supervisors in my capacity as a concerned resident of the Township who may or may be affected favorably or unfavorably if the subdivision plan is Bakowicz, John R., 95 -533 March 22, 1995 Page 3 approved, once the details are known in the Preliminary Plan and Final Plan, and also during construction." Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As the engineer for Upper Augusta Township and Upper Augusta Municipal Authority, you are a public official /employee as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. 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 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 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 Bakowicz, John R., 95 -533 March 22, 1995 Page 4 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 anything 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 been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest, as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political Bakowicz, John R., 95 -533 March 22, 1995 Page 5 subdivision, where one member has abstained from voting as a .result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. If a conflict exists, Section 3(j) requires the public official /employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. As to the specific questions which you have posed, you would have a conflict under Section 3(a) of the Ethics Law if the proposed subdivision, which you seek to review as municipal engineer, would result in a private pecuniary benefit to you. Such a benefit could occur if the subdivision, as to which the rear line of your private residence abuts a proposed lot, would affect the value of your property. However, there are insufficient facts, such as real estate appraisals, to determine whether an economic benefit would occur. The full Commission addressed this type of issue in Laser, Opinion 93 -002: However, in disposing of the appeal from the Advice, we face a conundrum in that the four individuals who made presentations did not provide any factual documentation as to the question of whether the value of Laser's property would be affected by the development, whether such economic impact would consist of an increase or decrease in land values, taxation or some other economic factor(s). Laser and his counsel indicated that they did not want to speculate on value while Mrs. Crowley, a developer, indicated that in one of her other developments, she did not believe that property values decreased as a result of that retreat /conference center. Under these circumstances, we are not in a position to say that a conflict exists since we have no evidence as to whether there is a private pecuniary benefit. The Advice assumed that the location of Laser's property would create a private pecuniary benefit. We are not prepared to say that, if one lives adjacent to a development, a pecuniary benefit would automatically follow. The same concern exists as to the question of Hakowicz, John R., 95 -533 March 22, 1995 Page 6 Id at 6. whether the action of Laser would have a de minimis economic impact or whether it would affect to the same degree a class or subclass. Thus, even if we had facts to determine whether a conflict existed, we still would need facts to determine whether the de minimis or class /subclass exclusions apply. Our result should not be construed to suggest that an incomplete or deficient factual submission will supply a requestor with what he perceives to be a favorable result. All that we have determined is that the facts are insufficient to conclude that a conflict exists. If, in the instant matter, there are facts which though not presented would establish that there would be a private pecuniary benefit, then this Opinion will not accord Laser a defense under Section 7(10) of the Ethics Law. Therefore, as to the first question, Section 3(a) of the Ethics Law will prohibit your participation as to a proposed subdivision submitted to the township when the rear lot of your private residence abuts a proposed lot in that subdivision if the proposed subdivision would have an economic impact on your private residence so as to constitute a private pecuniary benefit to you. As to your second inquiry, the Ethics Law would not prohibit you from appearing as a concerned resident who may or may not be favorably affected. However, you are cautioned that you must take great care to insure that your presence is in the capacity as a concerned resident rather than as the municipal engineer. 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 respective municipal code. Conclusion: As engineer for Upper Augusta Township and Upper Augusta Municipal Authority, you are a public official /employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law will prohibit a municipal engineer in participating as to a proposed subdivision submitted to the township when the rear lot of the engineer's private residence abuts a proposed lot in that subdivision if the proposed subdivision would have an economic impact on the private residence so as to constitute a private pecuniary benefit to the engineer. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Bakowicz, John R., 95 -533 March 22, 1995 Page 7 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. such. 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa. Code 513.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAS transmission (717- 787 -0806) . Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. cerely, oyAi- Vincent . Dopko Chief Counsel