HomeMy WebLinkAbout99-546 DingmanWilliam K. Dingman, P.E.
EDM Consultants, Inc.
1 101 South Broad Street, Suite 200
P.O. Box 1545
Lansdale, PA 19446
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
May 10, 1999
99 -546
Re: Conflict; Public Official /Employee; Township Engineer; Former Authority
Engineer; Review of Subdivision and Land Development Plans.
Dear Mr. Dingman:
This responds to your letter of March 30, 1999 by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S.
§1101 seq., presents any prohibition or restrictions upon a Township Engineer as
to the review of subdivision and land development plans submitted to the Township,
where the Township Engineer previously served as Engineer for the local Municipal
Authority when project financial notes were issued for the design and construction of
the sanitary sewer system for the Authority.
Facts: As Township Engineer for Washington Township (Township) in Berks County,
Pennsylvania, you seek an advisory from the State Ethics Commission. You have
submitted the following facts relative to your inquiry.
You are the President of EDM Consultants, Inc. (EDM). EDM is the engineering
consulting firm that serves as the appointed Township Engineer for the Township.
You are the primary representative from EDM serving as Township Engineer. EDM
provides standard Township Engineering services to the Township, such as design
services, subdivision and land development plan reviews, and ordinance reviews. EDM
has served as the Township Engineer for approximately 10 years.
EDM previously served as the Engineer for the Washington Township Municipal
Authority (Authority), from ; 1993 to 1997. In 1995, ,EDM prepared an Engineer's
Report for the Authority which the Authority used together with other informatiorx to
secure financing for the Authority's sanitary sewer system. The Engineer's Reppp�rt
contains projections partially furnished by the Authority with regard to possible future.
sewer connections from existing and proposed development in the Township. The
Authority obtained financing for the sewer system project in 1995. A 5 year interest
only note was obtained by the Authority for the financing of the sewer system project.
FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us
Dingman, 99 -546
May 10, 1999
Page 2
You state that neither you nor EDM take action on behalf of the Township or
Authority as to approving plans, financing, and the like. The Board of Supervisors
approves or rejects subdivisions and land developments. The Authority Board members
vote on project scope and project financing.
However, because you /your firm performed services for the Authority which
included supplying professional opinions regarding projections and estimates that the
Authority used to size the sewage treatment plant and to determine what parts of the
Township should be sewered, a citizen has asked whether you /your firm as Township
Engineer would have a possible conflict of interest as to reviewing developer's plans
for Washington Township. It has been emphasized that the Authority's financial
condition is partially dependent on such developments, and that if the Municipal
Authority would default on its financial obligations, you /your firm could face potential
liability.
Accordingly, you ask whether it would be a conflict of interest for you /your firm
as Township Engineer to review subdivision and land developments in the Township
where you /your firm previously served as the Authority Engineer and provided services
which included the preparation of an engineer's report used by the Authority to aid the
Authority in securing financing for the sanitary sewer system.
Discussion: It is initially noted that pursuant to Sections 1107(10) and
1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(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 Pa.C.S. §§1107(10), (11).
An advisory only affords a defense to the extent the requestor has truthfully disclosed
all of the material facts.
As Township Engineer for Washington Township, you /your firm is /are a public
official /public employee subject to the provisions of the Ethics Act.
Section 1 103(a) of the Ethics Act provides:
Section 1103. Restricted activities.
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. §1103(a).
The following terms are defined in the Ethics Act as follows:
Section 1102. 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. The term does not
Dingman, 99 -546
May 10, 1999
Page 3
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." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self - employed individual, holding company,
joint stock company, receivership, trust or any legal entity
organized for profit.
"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.
65 Pa.C.S. §1102.
Section 1 103(j) of the Ethics Act provides as follows:
Section 1 103. Restricted activities.
(j) Voting conflict. - -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
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
Dingman, 99 -546
May 10, 1999
Page 4
to break the tie vote if disclosure is made as otherwise
provided herein.
65 Pa.C.S. §1103(j).
In each instance of a conflict, Section 1103(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.
In the event that the required abstention results in the inability of the
governmental body to take action because a majority is unattainable due to the
abstention(s) from conflict under the Ethics Act, then voting is permissible provided
the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S.
In applying the above provisions of the Ethics Act to the instant matter,
pursuant to Section 1 103(a) of the Ethics Act, a public official /public employee is
prohibited from using the authority of public office /employment or confidential
information received by holding such a public position for the private pecuniary benefit
of the public official /public employee himself, any member of his immediate family, or
a business with which he or a member of his immediate family is associated. EDM is
a business with which you, as its President, are associated.
As Township Engineer for Washington Township, you /your firm would be
precluded from using the authority of such public position, or confidential information
to which you would have access, for a private pecuniary benefit for yourself and /or
EDM. The avoidance or lessening of private liability would constitute a private
pecuniary benefit. See, e.g., DeLano, Opinion No. 88 -008.
Based upon the facts which you have submitted, if review by you /EDM as to
subdivision and land development plans submitted to the Township would impact upon
the potential liability of you /your firm, then you /your firm would have a conflict of
interest and would be required to abstain fully and to satisfy the disclosure
requirements of Section 1103(j) as set forth above.
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability of any other statute, code, ordinance, regulation or other code
of conduct other than the Ethics Act has not been considered in that they do not
involve an interpretation of the Ethics Act. Specifically not addressed herein is the
applicability of the Second Class Township Code or any applicable professional code(s)
of conduct.
Conclusion: As Township Engineer for Washington Township in Berks County,
Pennsylvania, you /your firm, EDM Consultants, Inc. (EDM) is /are a public official /public
employee subject to the provisions of the Public Official and Employee Ethics Act
( "Ethics Act "), 65 Pa.C.S. §1101 t seq. EDM is a business with which you, as its
President, are associated. Based upon the facts which you have submitted, if review
by you /EDM as to subdivision and land development plans submitted to the Township
would impact upon the potential liability of you /your firm, then you /your firm would
have a conflict of interest and would be required to abstain fully and to satisfy the
disclosure requirements of Section 1 103(j) as set forth above. Lastly, the propriety
of the proposed conduct has only been addressed under the Ethics Act.
Pursuant to Section 1 107(1 1), an Advice is a complete defense in any
enforcement proceeding initiated by the Commission, and evidence of good faith
Dingman, 99 -546
May 10, 1999
Page 5
conduct in any other civil or criminal proceeding, provided 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 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 thirty (30) days of the date of this Advice
pursuant to 51 Pa. Code §13.2(h ). The appeal may be received at the
Commission by hand delivery, United States mail, delivery service, or by
FAX transmission (717-787-0806). Failure to file such an appeal at the
Commission within thirty (30) days may result in the dismissal of the
appeal.
$-merely,
Vincent J. opko
Chief Counsel