HomeMy WebLinkAbout826 HeineIn Re: Walter N. Heine
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
: File Docket: 90- 022 -C2
Date Decided: February 20, 1992
: Date Mailed: February 27, 1992
Before: Dennis C. Harrington, Chair
James M. Howley, Vice Chair
Daneen E. Reese
Roy W. Wilt
Austin M. Lee
James P. Gallagher
Allan M. Kluger
The State Ethics Commission received a complaint regarding a
possible violation of the State Ethics Act, Act 9 of 1989, 65 P.S.
401 et. seq. Written notice, of the specific allegation(s) was served
at the commencement of the investigation. A Findings Report was
issued and served, upon completion of the investigation, which
constituted the Complaint by the Investigation Division. An Answer
was filed and a hearing was waived. A Consent Order was submitted by
the parties to the Commission for consideration which was subsequently
approved. This adjudication of the Commission is hereby issued which
sets forth the individual Allegations, Findings of Fact, Discussion,
Conclusions of Law and Order.
This adjudication is final and will be made available as a public
document fifteen days after issuance. However, reconsideration may be
requested which will defer public release of this adjudication pending
action on the request by the Commission. A request for
reconsideration, however, does not affect the finality of this
adjudication. A reconsideration request must be received at this
Commission within fifteen days of issuance and must include a detailed
explanation of the reasons as to why reconsideration should be granted
in conformity with 51 Pa. Code §2.38.
The files in this case will remain confidential in accordance
with Act 9 of 1989, 65 P.S. 408(h) during the fifteen day period and
no one unless the right to challenge this Order is waived, may violate
confidentiality by releasing, discussing or circulating this Order.
However, confidentiality does not preclude discussing this case with
an attorney at law.
Any person who violates confidentiality of the Ethics Act is
Heine, 90- 022 -C2
Page 2
guilty of a misdemeanor subject to a fine of not more than $1,000 or
imprisonment for not more than one year, 65 P.S. 409(e).
I. ALLEGATION:
That Walter Heine, Engineer for Carroll Township, York County,
violated the following section of the Public Officials and
Employees Ethics Law, when he approved and recommended approval
by the township board of supervisors and zoning board planning
modules that he prepared on behalf of private developers for
Sundown Meadows:
II. FINDINGS:
Section 3. Restricted Activities
(a) No public official or public employee
shall engage in conduct that constitutes a
conflict of interest. 65 P.S. §402(a).
1. Walter. Heine has served as Carroll Township Engineer from
November 1988 to the present.
2. Walter N. Heine Associates, Inc., Boiling Springs,
Pennsylvania is a firm which has provided professional
engineering services since March 1981.to the present.
3. Sundown Meadows is a 73 acre subdivision located in Carroll
Township, York County.
a. The acreage was to be sub - divided into 31 lots for the
purpose of building single family homes.
4. The developers of Sundown Meadows are Harmon- Graves, Inc.
and Kimba Inc.
a. The principal in Harmon- Graves, Inc. is Harry Fox.
b. John Fox is the principal in the Kimba -Inc.
5. The Sundown Meadows subdivision plan required various
approvals of the Carroll Township Board of Supervisors.
6. Pursuant to laws and regulations Pennsylvania Department of
Environmental Resources required adequate sewage and water
systems.
7. On January 18, 1989, a Planning Module for Land Development
was submitted to the PA Department of Environmental
Resources by Mr. Rodney Decker, on behalf of Harry Fox, the
Heine, 90- 022 -C2
Page 3
developer of Sundown Meadows.
a. Decker was identified as a registered Professional
Land Surveyor.
b. This module was reviewed by DER personnel and was
deemed to be incomplete. (See Finding No. 11.)
8. Carroll Township records disclosed the following action
taken by the Planning Commission with regard to the Sundown
Meadows Subdivision.
a. January 19, 1989:
Planning Commission minutes reflect that a motion was
made by Mr. Gore to approve the preliminary plan for
Sundown Meadows, 31 lots, contingent on the receipt of
comments from the York County Planning Commission and
from Mr. Walter Heine, the Township Engineer. Also,
this motion required that an addition to the plans and
deeds would be made to indicate that the township is
not liable for the private streets. This motion died
for lack of a second. It was then moved by Mr.
Hartman to reject the preliminary plan of Sundown
Meadows and have the plan resubmitted with all issues
addressed from the comments of Township Engineer Heine
and the York County Planning Commission.
Vote: Desiderata - Yes; Hartman - Yes; Gore - No;
Baker - Yes; Meier - Yes, Cashman - Yes
Motion carried.
b. March 21, 1989
Planning Commission minutes reflect that it was moved
by mr. Hartman to approve the preliminary plan of
Sundown Meadows, 31 lots, contingent on the applicant
addressing remaining deficiencies as cited by Township
Engineer Heine and the York County Planning Commission,
and that the plan should be submitted to the York
County Soil and Water Conservation District for review
of the Erosion Control Plan.
Vote: Desiderata - Yes; Hartman - Yes; Baker - Yes;
Cashman - Yes; Gore - Yes
Motion carried.
9. Minutes of the Carroll Township Board of Supervisors
Heine, 90- 022 -C2
Page 4
disclose the following action taken in regards to Sundown
Meadows; February 7, 1989:
Township Supervisors minutes reflect that it was moved
by Supervisor Eichelberger to reject the preliminary
plan of Sundown Meadows, 31 lots, because the plans
were submitted incomplete, as per the comments of the
township engineer.
Vote: Reihart - Yes; Eichelberger - Yes; Lavertue -
Yes
Motion carried.
Walter Heine was the township engineer at this time.
a. March 21, 1989:
Township Supervisors minutes reflect that it was moved
by Supervisor Reihart to approve the preliminary plan
at Sundown Meadows contingent on Township Engineer
Heine's comments that remaining deficiencies be
addressed; that deficiencies as cited by the York
County Planning Commission be addressed; and that the
plan be submitted to the York County Soil and Water
Conservation District for Review of the Erosion Control
Plan.
Vote: Reihart - Yes; Eichelberger - Yes; Lavertue -
Yes
Motion Carried.
It was also moved by Supervisor Reihart to adopt
Resolution 1989 -20 to revise the township's 537 plan to
include Sundown Meadows.
Vote: Reihart - Yes, Eichelberger - Yes; Lavertue -
Yes
Motion carried.
b. June 6, 1989:
Township Supervisors minutes reflect that it was moved
by Supervisor Reihart to approve the final plan of the
major subdivision for Sundown Meadows contingent on
Township Engineer Heine reviewing the water study.
Vote: Reihart - Yes; Eichelberger - Yes; Lavertue -
Heine, 90- 022 -C2
Page 5
yes
Motion carried.
10. Township Engineer Walter Heine provided the following input
to the township supervisors and Planning Commission with
regard to Sundown Meadows:
a. March 21, 1989:
A memorandum to the township supervisors recommending
that the preliminary plan be accepted when
deficiencies previously cited by Mr. Heine and the York
County Planning Commission are addressed.
b. Mav 18, 1989:
A memorandum for the Township Planning Commission a
recommending that the final plan for Sundown Meadows
be accepted contingent upon the applicant adequately
addressing the remaining deficiencies cited by Walter
N. Heine Associates, Incorporated and the York County
Planning Commission. Also, the plan should not be
forwarded to the supervisors for final action until
these issues are resolved.
c. June 6, 1989:
A memorandum for the township supervisors advised that
the final plan for Sundown Meadows had been reviewed
and that the remaining issues had been satisfactorily
addressed. A recommendation was made that the final
plan for Sundown Meadows be approved.
d. June 20, 1989:
A memorandum for the township supervisors reflects
that a review of hydrogeologic data, concerning the
affect of Sundown Meadows final Subdivision plan on
area wells, was made. Hydrogeologist, Robert Briggs,
of Walter N. Heine Associates, and Mr. Heine concurred
in a recommendation that proposed wells will have an
insignificant affect on those wells adversely affected
by the Municipal Well 4 pump test and that the township
supervisors confirm the previous.approval of the
Sundown Meadows Development Plan.
11. On July 26, 1989 DER advised the Carroll Township
Supervisors that the Planning Module for Land Development,
Sundown Meadows was incomplete. The following reasons were
Heine, 90- 022 -C2
Page 6
noted.
a. The Sewage Enforcement Officer's signature is missing
from the site investigations sheets. The SEO's
signature on these forms is necessary to ensure the
validity of the test results.
b. The depth of the perc holes accompanying probes 2, 3,
4, and 5 was not included on the site investigation
sheets.
c. The perc holes adjoining probes 17, 19, and 47 were not
performed in accordance with Chapter 73, Section
73.15(3)(888). Since the limiting zone was described
as coarse fragments, these holes should have been
excavated to a depth eight inches above that limiting
zone.
d. Component III -A requires that all existing or proposed
water sources and any existing sewage facilities (i.e.
lot #7) be indicated on the plot plan. Please show
this information.
e. The testing for lot number five will result in a system
that is in violation of the 10 foot property line
isolation distance. Please correct.
f. As the proposed development is underlain by limestone,
a Component III -B preliminary hydrogeologic study will
be required. Please include a surface map of the area
detailing existing sinkholes, quarries, and caverns.
g. Since the existing sewer facilities are relatively
close by, a feasibility study evaluating this sewage
disposal alternative must be included in the
resubmission.
12. The developer Harmon- Graves Inc., objected to conducting the
hydrogeological study as required by DER (See No. 11(f).)
a. On August 31, 1989 Harry Fox of Harmon Graves advised
Walter Heine that his firm proceeded with the
development because DER's response to his module
postcard application did not include a preliminary
hydrogeological study as a requirement of a complete
module package, and a DER representative gave oral
assurances that no study would bs required.
b. Fox advised that if the hydrogeological study was not
reversed, he would seek remedy from the courts.
Heine, 90- 022 -C2
Page 7
13. On September 1, 1989 Heine notified DER's Bureau of Water
Quality Management that, as Carroll Township Engineer, he
was coordinating responses to DER's notice to the township
that the Sundown Meadows Planning Module was incomplete
(Finding No. 1). In regards to the hydrogeological study
Heine advises as follows:
a. That the developer was opposed to conducting a
hydrogeological study because of DER's oral assurances
that one was not needed. (See Finding 12a).
14. On December 29, 1989, DER advised the township supervisors
that a plan revision was disapproved because a preliminary
hydrogeologic study had not been received.
15. On February 9, 1990 Walter Heine Associates forwarded a
Preliminary Hydrology Report for Sundown Meadows to the
Department of Environmental Resources. The report advised
as follows:
a. The site specific report has been prepared in spite of
the developer's contention that such a study should not
be required.
b. Details of two methods which were used to develop a
theoretical post development ground water nitrate
level.
c. The report is signed by Robert Briggs, a Senior
Hydrologist, for Walter Heine Associates.
16. The hydrological study outlined in Findings No. 15 was a
requirement of DER and not the Carroll Township Board of
Supervisors.
a. The board of supervisors had previously approved
Sundown Meadows Planning Module and did not require
such a study. (See Finding 9e).
b. The supervisors never directed Heine to conduct the
hydrogeological study.
17. On May 4, 1990, a new planning module for land development
was submitted for Sundown Meadows under the seal and
signature of Mr. Heine.
18. Walter Heine Associates billed the Carroll Township
Supervisors for services performed as township engineer
regarding Sundown Meadows.
Heine, 90- 022 -C2
Page 8
a. Date of Invoice: July 20, 1989
Reference: Professional Services for May and June,
1989 for Sundown Meadows
For review of final subdivision plan; preparation
of comments and recommendations to the Township
Planning Commission for the May 18, 1989 meeting and to
the Township Board of Supervisors for the June 6, 1989
meeting; review of hydrogeologic reports by Tethys,
Inc. and R.E. Wright Assocs.; and preparation of
hydrogeologists' opinion on the reports; and associated
word processing and photocopying.
Registered Engineer - 0.5 Hrs. @ $45.00 - $ 22.50
Senior Professional - 7.5 Hrs. @ $40.00 - 300.00
$322.50
Minus 22.50
Total Due $300.00
b. Date of Invoice: September 15, 1989
Reference: Professional Services August, 1989 for
Sundown Meadows
For review of the DER's comments on
project's planning module and preparation of
coordinated response to the DER with input
from township's SE0 and the developer.
Total Due - $170.00
c. Carroll Township paid Walter Heine for these services.
19. Carroll Township billed the developers of Sundown Meadows
for the services performed by Heine as outlined in Finding
18. The developers made payments to the township as
follows:
a. August 16, 1989, check no. 984 in an amount of $300.00
(See Finding 18a).
b. June 27, 1990, check no. 1128 in an amount of $170.00.
(See Finding 18b).
20. Walter Heine Associates directly billed Harry Fox, Harmon-
Heine, 90- 022 -C2
Page 9
Graves, Inc. for services performed regarding Sundown
Meadows. These services were performed after the Carroll
Township Board of Supervisors approved the Sundown Meadows
Planning Module.
a. The services were performed as a result of DER
requirements for Sundown Meadows.
b. March 10, 1990:
Professional Services for the period January 1990
through February 15, 1990 as follows:
For preparation of a Preliminary Hydrogeologic
Report (nitrates), including faxing of two drafts for
coordination with Attorney Eugene Dice; amending the
drafts and development of two alternative methods of
calculation, one involving the hydrology calculations
for the area tributary to on -site ore hole, map making,
copying, assembling and sending to the DER and Messrs.
Dice and Fox.
Project Management - 22.0 Hrs @ $55.00 - $1,210.00
Technician - 0.5 Hrs. @ $23.00
Secretarial - 8.0 Hrs. @ $15.00
Total Due
c. September 20, 1990:
11.50
120.00
$1,341.50
Payment was made to Heine in an amount of $1,341.50 by
check number 1076 dated March 30, 1990.
For field meeting with townohip SEO to locate
sites of additional percs and probes 100 feet from
"depressions "; for revising site map to accompany
submittal to the DER to meet its final concern about
approval of the Land Development Module, including
conversations with DER personnel to assure date
submitted was sufficient.
Senior Engineer - 1.0 Hr. @ $55.00 - $ 55.00
Senior Professional - 1.2 Hrs. @ $55.00 - 66.00
Project Management - 2.3 Hrs. @ $40.00 - 92.00
Technician - 2.3 Hrs. @ $23.00 - 52.00
Heine, 90- 022 -C2
Page 10
III. DISCUSSION:
Secretarial - 1.0 Hr. @ $15.00
Direct Costs and Related Expensas
Total Due
Payment was made to Heine in an amount of $288.90 by
check no. 1203 (date not indicated).
As an Engineer for Carroll Township, York County, Walter N.
Heine, hereinafter Heine, is a public official as that term is defined
under Act 9 of 1989. 65 P.S. 402. As such, his conduct is subject to
the provisions of the Ethics Law and the restrictions therein are
applicable to him.
Initially, it is noted that Section 9 of Act 9 of June 26, 1989
provides, in part, as follows:
"This amendatory act shall not apply to
violations committed prior to the effective date
of this act, and causes of action initiated for
such violations shall be governed by the prior
law, which is continued in effect for that purpose
as if this act were not in force. For the
purposes of this section, a violation was
committed prior to the effective date of this act
if any elements of the violation occurred prior
thereto."
Since the occurrences in this case transpired after the effective
date of Act 9 (June 26, 1989), we must apply the provisions of Act 9
to determine whether the Ethics Act was violated.
Under Section 3(a) of Act 9 of 1989 quoted above, a public
official /employee shall not engage in conduct that constitutes a
conflict of interest.
The term "conflict of interest" is defined under Act 9 of 1989 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
- 15.00
$280.90
8. 0
288.90
Heine, 90- 022 -C2
Page 11
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 dagree 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. 65 P.S. S402.
In the instant matter, we must determine whether Heine violated
Section 3(a) of Act 9 of 1989 regarding the approval or recommendation
for approval to the township board of supervisors of the zoning board
planning modules that he allegedly prepared on behalf of private
developers for Sundown Meadows which is a proposed development within
the township.
Heine has served as a Carroll Township engineer since November
1988 to the present; and his firm, Walter N. Heine Associates, Inc. of
Boiling Springs has provided private professional engineering services
since 1981. Within Carroll Township, developers submitted a plan for
Sundown Meadows which is a seventy three acre subdivision of thirty
one lots for single family homes. The developers of Sundown Meadows
are Harmon- Graves Inc. and Kimba, Inc., the principals of which are
Harry and John Fox respectively. The Sundown Meadows subdivision not
only required approval of the Carroll Township Board of Supervisors
but from DER as to the adequacy of the sewage and water systems. A
planning module for land development was submitted to DER by Rodney
Decker on behalf of Harry Fox. After the module was reviewed by DER
personnel, it was deemed to be incomplete.
In Carroll Township, the Planning Commission reviewed the matter
of the Sundown Meadows subdivision and on January 19, 1981 rejected
the preliminary plan and directed that the plan be resubmitted
addressing various concerns raised by Township Engineer Heine and the
York County Planning Commission. Thereafter, on March 21, 1989, the
Planning Commission conditionally approved the preliminary plan
contingent upon the developer- applicant addressing the deficiencies
noted by Township Engineer Heine and the York County Planning
Commission.
The minutes of the Carroll Township Board of Supervisors reflect
the following: on February 7, 1989, a motion was carried to reject the
preliminary plan of Sundown Meadows which was found to be incomplete
as per the comments of Township engineer Walter Heine; on March 21,
Heine, 90- 022 -C2
Page 12
1989, a motion carried to approve the preliminary plan for Sundown
Meadows contingent upon the developer addressing the concerns of
Township Engineer Heine, the deficiencies noted by the York County
Planning Commission and the submission and review of the plan by the
York County Soil and Water Conservation District for review of the
Erosion Control Plan and on June 6, 1989, a motion carried for the
approval of the final plan of the Sundown Meadows subdivision
contingent upon Township Engineer Heine's review of the water study.
The township records reflect the following input by Township
Engineer Walter Heine to the Supervisors and Planning Commission
regarding Sundown Meadows: on March 21, 1989, a memorandum to the
supervisors recommending approval of the preliminary plan after the
deficiencies by Heine and the York County Planning Commission are
addressed; on May 18, 1989, a memorandum to the Planning Commission
recommending final approval for Sundown Meadows contingent upon the
developer addressing the deficiencies noted by Walter N. Heine
Associates Inc. and the York County Planning Commission with the
proviso that the plan should not be forwarded to the supervisors until
the issues are resolved; on June 6, 1989, a memorandum to the township
supervisors advising that the final plan for Sundown Meadows had been
reviewed and that the remaining issues had been satisfactorily
addressed followed by a recommendation that final approval be given to
the plan and on June 20, 1989, a memorandum to the supervisors
advising that a review of hydrogeologic data had been reviewed and a
determination was made that the proposed wells for the development
would have an insignificant effect on certain wells that could be
adversely impacted.
However, on July 26, 1989 DER advised Carroll Township
Supervisors that the planning module for the Sundown Meadows was
incomplete and noted seven areas of concern, one of which was a
requirement for a hydrogeologic study in light of the underlying
limestone in the proposed development. The developer objected to a
hydrogeological study as a DER requirement on the basis that the
developer purportedly was advised by DER that his module application
did not need a preliminary hydrogeological study as a requirement for
a complete module package. In addition, the developer advised that if
the hydrogeological requirement were not waived he would seek remedial
action through the courts. Thereafter, on Sep' :ember 1, 1989 Heine
notified DER, in his capacity as Carroll Township Engineer, that he
was coordinating a response to the notice of incompleteness as to the
Sundown Meadows subdivision and advised that the developer was opposed
to such a requirement because of DER's prior oral assurances. On
December 29, 1989 DER gave notice to the supervisors that the plan was
disapproved because the preliminary hydrogeologic study had not been
received. On February 9, 1990 Walter Heine Associates, Inc. forwarded
a preliminary hydrology report for Sundown Meadows to DER which, as
noted above, was a requirement of DER and not of the Carroll County
Township Board of Supervisors who never directed Heine to conduct the
Heine, 90- 022 -C2
Page 13
hydrogeological study. Thereafter, on May 4, 1990 a new planning
module for the land development was submitted for Sundown Meadows
under the seal and signature of Heine.
As to the compensation which Heine or his firm, Walter Heine
Associates, Inc. received relative to the Sundown Meadows proposed
development, an invoice dated July 20, 1989 was submitted for
professional services for May and June of 1989 for Sundown Meadows
consisting of a review of the final subdivision plan, preparation of
comments and recommendations, review of hydrogeological reports and
preparation of hydrogeologists' opinions on the reports and
associated services amounting to $300.00. In addition, a September
15, 1989 invoice in the amount of $170.00 was issued for professional
services as to Sundown Meadows for review of the DER comments on the
projects planning module and the preparation of a coordinated
response to DER. After the two invoices were paid by Carroll Township
to Heine, the township billed the developers of Sundown Meadows for
such services followed by payment to the township by the developers in
the amount of $470.00.
Separate and apart from the above, Walter Heine Associates, Inc.
billed Harry Fox for services performed regarding Sundown Meadows
relative to the DER requirements consisting of the preparation of a
preliminary hydrogeologic report and the development of two
alternative methods of calculation, one involving the hydrology
calculations, map making and administrative services. The invoice
amounted to $1,341.50 but a second September 20, 1990 invoice in the
amount of $288.90 was submitted for services as to a field meeting
with the township SE0 to locate sites of additional percs and probes
and as to revising the site map to accompany the submission to DER.
The developer subsequently paid Walter Heine Associates, Inc. for the
services outlined on both invoices.
In applying the provision of Section 3(a) of Act 9 quoted above
and the statutory definition of conflict, we must determine whether
there has been a use of authority of office on the part of Heine to
obtain a private pecuniary benefit for himself or for Walter Heine
Associates, Inc. as to the services he performed relative to the
Sundown Meadows proposed subdivision.
In this case we do not find a violation of Section 3(a) of the
Ethics Law. It is clear from the record that the activities of Heine
were on behalf of the planning commission and the township without any
services performed by the developers until DER found the application
module to be incomplete. Thus, Heine performed review functions for
the planning commission and the township board of supervisors and in
that capacity noted various deficiencies which had to be corrected by
the developers. The subdivision plan was approved by the township
board after the various deficiencies were corrected without any
private involvement between Heine and the developers.
Heine, 90- 022 -C2
Page 14
It was only after DER raised seven concerns about Sundown
Meadows, one being the need for a hydrogeological study, that Heine
became involved for the purpose of resolving the matter. The
hydrogeological survey was completed and submitted to DER so that the
subdivision plan could be resubmitted and approved after DER's
requirements were satisfied. Although it is true that Heine did
perform services relative to the hydrogeological study for the
developers, said services were performed after the approval of the
Sundown Meadows planning module when DER noted its own finding of
incompleteness as to that module. Thus, the services performed by
Heine arose because of difficulties arising as to DER requirements and
not as to his own governmental body, the Carroll Township Board of
Supervisors or the Planning Commission. Since there was not any use
of authority of office on the part of Heine, we find no violation of
Section 3(a) of Act 9 of 1989.
IV. CONCLUSIONS OF LAW:
1. Walter N. Heine as the Carroll Township Engineer
is a public employee subject to the provisions of
Act 9 of 1989.
2. Heine did not violate Section 3(a) of Act 9 of 1989
regarding the performance of engineering services as to a
hydrogeological study that was not required by
Carroll Township but was required by he
Department of Environmental Resources relative to
a Sundown Meadows subdivision which had been
approved by the Carroll Township Planning
Commission and Board of Supervisors.
In Re: Walter N. Heine,
: File Docket: , 90- 022 -C2
: Date Decided: February 20. 1992
: Date Mailed: February 27, 1992
ORDER No. 826
1. Walter N. Heine as the Carroll Township Engineer did not violate
Section 3(a) of Act 9 of 1989 regarding the performance of
engineering services as to a hydrogeological study that was not
required by Carroll Township but was required by the Department
of Environmental Resources relative to a Sundown Meadows
subdivision which had been approved by tha Carroll Township
Planning Commission and Board of Supervisors.
BY THE COMMISSION,
4 0=4; , - ./
DENNIS C. HARRINGTON, "CHAIR