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HomeMy WebLinkAbout905 DeemerIn Re: William P. Deemer 5TATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: 92- 067 -C2 Date Decided: 9/28/93 Date Mailed: 10/07/93 Before: James M. Howley, Chair Daneen E. Reese, Vice Chair Dennis C. Harrington Austin M. Lee Joseph W. Marshall, III 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. The record is complete. This adjudication of the Commission is hereby issued which sets forth the individual Allegations, Findings of Fact, Di 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 §21.29(b). 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 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. 5409(e). Deemer, 92- 067 -C2 Page 2 I: ALLEGATION: That William P. Deemer, as engineer for the Slippery Rock Municipal Authority, Butler. County, violated the following provisions of the State Ethics Act (Act 9 of 1989) , when in his capacity as Authority Engineer, he approved development plans including sewer and water modules, which he designed for private clients. 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. 5403(a). 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. 65 P.S. §402. 1. William P. Deemer serves, as the appointed engineer for Slippery Rock Borough and Slippery Rock Municipal Authority. a. He served in both positions from 1973 through September, 1990. 2. From September, 1990, to the present, Deemer has served as the appointed engineer for the Slippery Rock Municipal Authority. 3. Prior to this time, the Authority had a Lease -Back Agreement with the borough to operate the Authority's system. a. In September, 1990, the Authority floated a bond issue, and became an operating Authority. 4. Minutes of the September 24, 1990, Authority meeting indicate Deemer, 92- 067 -C2 Page 3 that a resolution was passed to order the borough to deliver a peaceable possession of the water and sewer system to the Municipal Authority. The resolution signaled the beginning of the Authority as an operating Authority. Actions to ratify the new agreement occurred at the October 3, 1990, meeting. 5. William P. Deemer is a registered professional engineer. 6. William P. Deemer & Associates is a consulting engineer firm located in Butler, Pennsylvania. a. William P. Deemer is owner of William P. Deemer & Associates. 7. Records of the Slippery Rock Municipal Authority reflect that William P. Deemer was appointed Authority Engineer at the following meetings. a. January 6, 1988 b. January 2, 1991 c. January 8, 1992 d. January 11, 1993 8. William Deemer was compensated by the Slippery Rock Municipal Authority by a monthly retainer and hourly rates for engineer, engineer support, drafting and secretarial. a. Between October, 1990, and December, 1992, Deemer was compensated by the Authority as follows: b. 1993: Monthly retainer Principal engineer Engineering support Drafting Secretarial Monthly retainer Principal Engineer Engineer support and calculations Drafting Secretarial Misc. Blue prints Reproducible Mylar Sepia Photocopies Phone /fax costs Mileage $ 250.00 $ 50.00 /hr. $ 25.00 /hr. $ 12.00 /hr. $ 300.00 $ 60.00 /hr. $ 30.00 /hr. $ 25.00 /hr. $ 15.00 /hr. $ 4.00 /ea. $ 8.00 /ea. $ .15 /sheet Cost & 25% $ .20 /mile Portal to portal Deemer, 92- 067 -C2 Page 4 (1) The Authority Board ,approved the rate increase when Deemer was re- appointed consulting engineer. c. During an executive session held during the June, 1993, meeting, the Board required Deemer to obtain professional liability insurance. As a result of the additional cost to Deemer, the Board approved an additional increase in his rates. (1) Hourly rate for principal engineer increased $10.00 from $60.00 to $70.00 /hour. (2) Hourly rate for other services as listed increased $5.00 with the exception of miscellaneous items. (3) The minutes do not reflect specific motion approving the increase. (4) The minutes do not reflect discussion or motion regarding the requirement for Deemer to obtain professional liability insurance. d. Prior to December, 1990, Deemer's retainer was paid by Slippery Rock Borough. e - . Deemer received payment from the Authority for engineering services on special projects funded by grants. 9. Minutes of.the Slippery Rock Borough Council meetings reflect that William P. Deemer was reappointed the borough engineer at the December 5, 1989 meeting. 10. In 1985 Slippery Rock Township, Slippery Rock Borough and the Slippery Rock Municipal Authority entered into an agreement known as "The -Comprehensive Plan for the Expansion and Extension of the Slippery Rock Municipal Authority's Water System ". a. The agreement was adopted on October 2, 1985. b. A similar agreement was adopted for the sewer system on January 7, 1987, as a result of a request for sewer service in the township. c. The agreements were revised and combined into one agreement that was adopted on June 3, 1992. 11. As part of the Comprehensive Plans, developers generally entered into an agreement with the Authority assuming responsibility for complying with all required specifications Deemer, 92- 067 -C2 Page 5 and reimbursing the Authority for expenses relating to the inspection and approval of such projects. 12 The Comprehensive Plans require specific services to be performed by the Authority engineer in relation to applications for the extension of the Authority's systems. a. The application shall be reviewed by the Authority engineer, and if deemed feasible, the Authority engineer will prepare a preliminary design and layout of the proposed line(s). b. The installation shall be in accordance with the designs, specifications and layouts of the Authority engineer. c. The Authority's engineer shall be the resident inspector. 13. During the course of his service as the Engineer for Slippery Rock Municipal Authority, and Slippery Rock Borough, William P. Deemer reviewed, inspected, and approved plans submitted to the Authority and borough by individuals regarding projects with which he or William P. Deemer & Associates was involved in a private capacity, and for which compensation was paid. 14. Plans for the Extension of Water and /or Sewer Lines into Slippery Rock Township, on file with the borough and Authority, indicate that William P. Deemer of William P. Deemer & Associates, was the engineer of record for the following developments between 1985 and 1992, for which borough and /or Authority action was required: Date 1985 1987/1993 1987 1989 1989 1991 1992 1993 Development Allegheny Valley Schools Applewood Meadows - Gary McKnight Poplar Forest Nicholas Borgfeldt Arrowhead Place - Walter Fowler College Garden Apartments - JGame Properties LeBanno Davcol, Inc. /Bronder Basta /Messer The following findings relate to the Allegheny Valley Schools Water Line Extension: 15. The Allegheny Valley Schools opened a group home in approximately 1985/1986. a. A requirement of opening the home was that public water service was available. Deemer, 92- 067 -C2 Page 6 16. The Water line extension plans were prepared by William Deemer and Associates and submitted to the Slippery Rock Municipal Authority for approval. 17. Minutes of the Slippery Rock Municipal Authority meetings reflect the following action in relation to the Allegheny Valley School water line extension. a. March 7, 1984: Deemer presented the borough's request from Slippery Rock High School to extend their water line to the high school receiving barn at the high school's expense. Same to be of a minimum 6" line of material meeting the borough's specifications. Motion to approve the construction was seconded and approved. b. April 3, 1985: After a lengthy discussion, a motion was made to approve providing water to the William Fennick property on Route 173, South of Slippery Rock, if regulations being written by the Authority solicitor are approved by the borough. All expenses including installation and construction fees are the responsibility of the developer. (1) Allegheny Valley Schools placed the group home on the Fennick property. c. May 1, 1985: • The proposed agreement between Slippery Rock Municipal Authority, Slippery Rock Borough Council, and Allegheny Valley School to provide water service to the William Fennick property on Route 173, South of Slippery Rock Borough, was reviewed point by point. Deemer advised that the agreement included everything that will be included in the proposed overall policy for providing water service outside the borough property lines. The total cost of preparing this agreement will be the responsibility of Allegheny Valley School since it is a special agreement so that they could get water in the near future, and the Comprehensive Policy is not written at this date. A motion was approved to authorize the signing of the agreement, and to recommend the plan to the borough council and the township. Deemer, 92- 067 -C2 Page 7 18. An invoice from William P. Deemer & Associates dated July 5, 1985 to the Allegheny Valley School District indicates that engineering services for a water line extension plan were provided for a total cost of $800.00. a. The invoice was contained in the Allegheny Valley School file at the Authority. b. The invoice, number 2013, reflects sixteen hours at $50.00 per hour. c. The invoice is signed by William P. Deemer, P. E. Consulting Engineer. d. A handwritten notation indicates that the services performed included work in relation to the "Comprehensive Plan ". (1) This work included design specifications and layouts and inspections. 19. The Allegheny Valley Schools used Deemer because they believed the project would go quicker and smoother. a. Deemer never held the project up or asked for or charged extra money for his services. Deemer offered his full cooperation to Allegheny Valley Schools in this project. The following findings relate to the Applewood Meadows water and sewer line extension project. 20. Applewood Meadows was a project McKnight (G. L. McKnight, Inc.). a. The project was submitted in all at the same time. b. c. that was proposed by Gary three phases, and approved Phase I was developed in 1987. Phases II and III are currently being developed. 21. Applewood Meadows water and sewer line plans were prepared by William P. Deemer & Associates and submitted to the Slippery Rock Municipal Authority for approval. 22. Records of the Slippery Rock Municipal Authority indicate that the plans for Applewood Meadows were prepared by William P. Deemer & Associates. a. The plans are dated March 31, 1987. Deemer, 92- 067 -C2 Page 8 b. Revisions were made on December 23, 1992, and May 12, 1993. c. The plans were prepared for the Slippery Rock Municipal Authority. d. These water and sewer line plans were prepared by William P. Deemer & Associates and sealed by William P. Deemer. 23. The following actions occurred at Slippery Rock Municipal Authority meetings in relation to the Applewood Meadows plans for water and sewer line extension. a. June 4, 1986: McKnight was present to explain his proposed development of the old Steele farm and asked the Authority to draw up a plan to extend the sewage line to the property. A motion was approved to have the solicitor start on a Comprehensive Plan (similar to the water plan), to extend the sewer lines into the township. b. September 3, 1986: Deemer showed the Authority a map with the proposed Steele Farm housing development on it. Alternative plans for placement of the sewer lines from the development to the treatment plant were discussed. c. October 1, 1986: A motion was approved to allow McKnight to proceed with the proposed plan for the sewage, and contact the school board for their consent. (1) The . feasibility of the sewer line plan was determined by Deemer. (See finding #24). d. November 5, 1986: Deemer was directed to send a letter to the Slippery Rock School Board explaining the proposed joining of the sewer line from the old Steele Farm (McKnight Development), at the manhole near the high school. e. January 7, 1987: Deemer reported that the township had approved the Comprehensive Plan for extending sewer service beyond borough lines. Deemer, 92- 067 -C2 Page 9 Deemer reported that the school board is considering allowing the sewer line from the McKnight project to tap into their manhole. They have asked in return, if any future buildings could tap in with no service connection fee. No formal motion was made, but the Authority seemed in favor of it. A formal letter from Gary McKnight to ask for sewer extension onto his proposed development was presented. The secretary was instructed to put it on file. f. April 1, 1987: Copies of the revised plan module of Applewood Meadows were given to the Municipal Authority to file. A motion was approved to authorize preparation of a draft agreement by the engineer that would meet with the approval of council and the Municipal Authority, as required by the Comprehensive Plan. A motion was approved to have the engineer finalize plans for the water and sewer lines, and make applications for permits as may be required by DER and PennDOT. A letter from the Butler County Planning Commission to David Emmert of DER', stated that they had approved the preliminary plan. for Applewood Meadows at their March 18, 1987 meeting. g. May 6, 1987: Deemer reported that the revised plan module for Applewood Meadows had been submitted to DER for their approval. Deemer to check to see if this report can be used in other cases, the expense of redoing it each time new customers are added is cost prohibitive. h. June 3, 1987: The changes in the agreement between McKnight and the Municipal Authority were discussed. A motion was approved to formally adopt the agreement with the specified changes. i. October 7, 1987: Deemer reported that the sewers are installed in Applewood Meadows, and the pump station is on site. Also, Allegheny Valley Schools have tapped into the sewer line. Deemer, 92- 067 -C2 Page 10 j. November 4, 1987: Gary McKnight was present to report that the sewer project was completed and to present his maintenance bond for acceptance. The motion was approved to accept the project as complete and to accept the performance bond in the amount of $207,375.76, subject to (1) approval of the Authority's legal counsel, and (2) the provision by G. L. McKnight, Inc., of proper conveyance of property and equipment to the Municipal Authority. k. March 2, 1988: The deeds for the right -of -way and pump station, the Bill of Sale, and a letter from G. L. McKnight were presented to the Municipal Authority. A motion was made that the Authority accept these items subject to the approval of the attorney. Motion was seconded and approved. 1. May 4, 1988: A motion to release G. L. McKnight from his performance bond on off -site construction was seconded and approved. m. February 3, 1993: A letter was received from William Rosenbaum of Aqua Terra stating that they have completed the review of McKnight Phase II Plan with some minor comments. No drawing revision will be required at this time. n. April 7, 1993: Deemer reported that McKnight plans to start installing his sewer lines next week. He said McKnight is planning some changes on his plan that will add four additional lots. Deemer said the changes will not affect the water and sewer lines, and will not require a revision to the Act 537 Plan for the development. o. June 2, 1993: Deemer reported that McKnight is considering using a private right -of -way for his line as opposed to using the highway right -of -way as PennDOT is placing too many conditions on the Highway Occupancy Permit, making it cost prohibitive. 24. In a- letter dated November 5, 1986, to the Slippery Rock School Board, Deemer presented proposals regarding a request for the extension of sanitary sewer lines to property being Deemer, 92- 067 -C2 Page 11 developed by Gary L. McKnight along Route 173 and West Liberty Road in Slippery Rock Township. This property is adjacent to the borough and the school district property. a. Deemer detailed three alternates which the Authority considered in providing sewer service to this property. b. For each alternate, Deemer presented the pros and cons to both the Authority and the developer. c. Deemer described the advantages to the school district which include additional tax base resulting from development. d. Deemer advised that the Authority prefers Alternate C, and would be interested in entering the proper agreements. 25. A planning module for land development for Applewood Meadows was prepared by William P. Deemer, Consulting Engineer, on February 9, 1987 and submitted to Slippery Rock Township. a. The planning module was signed and sealed by William P. Deemer on March 8, 1987. 26. As part of this planning module for land development, Deemer prepared a Narrative Report supporting a resolution to revise the Act 537 Sewage Plan for Slippery Rock Township. The report details the three proposals considered in planning the sewer line extension to service the McKnight development. a. Deemer estimated that the total project would serve an equivalent of 150 residences, and the portion of the project serviced by the proposed pump station would serve the equivalent of approximately 100 residences. 27. By way of letter dated April 29, 1987, to the Department of Environmental Resources, Deemer explains that his client is anxious to apply for construction permits, and requests that the DER Permit be issued promptly so that the project may be completed in good construction weather. The letter was in response to a request from DER for additional information explaining the Narrative prepared by Deemer, and attached to the planning module for land development. 28. Deemer notified Slippery Rock Township on April 30, 1987, . by way of letter, that the Authority intends to apply to the Department of Environmental Resources for a permit to construct sanitary sewers to serve the G. L. McKnight, Inc., at the Applewood Meadows Plan. Deemer, 92- 067 -C2 Page 12 a. Deemer advised that the client wished to be in a position to immediately apply for the construction permit. b. Deemer needed the township to countersign a copy of the letter and return it as proof of receipt as required by DER. 29. An agreement was entered into on May 31, 1987, between the Slippery Rock Municipal Authority, the Borough of Slippery Rock, the Township of Slippery Rock, and G. L. McKnight, Inc. a. The agreement established the requirements for providing water and sewage to real estate owned by G. L. McKnight, Inc. b. The agreement was entered into pursuant to the Comprehensive Plan. c. Pursuant to said document, it is agreed in part that: All work shall be done in compliance with the rules and regulations of the Authority pursuant to the design and plan approved by the Authority Engineer, William P. Deemer, and under said engineers supervision, control and inspection. d. Developer agrees to pay 'for all costs associated with such supervision and inspections. e. After the construction, connection, final inspection and approval, by the Authority engineer, as evidenced by his certificate to the Authority, the Authority will accept sewage transported from developers property into its existing system, and maintain, repair and /or replace and keep in generally good operating condition at the Authority's expense. 30. An application for Part II Water Quality Management Permit and related documentation was submitted to Pennsylvania Department of Environmental Resources on behalf of the Slippery Rock Municipal Authority sewer extension for Applewood Meadows Subdivision, by William P. Deemer. The application was accompanied by the following documents: a. Filing fee check drawn on the account of G. L. McKnight, Inc., #691, dated May 28, 1987, in the amount of $500.00. b. Two sets of a single plan folio of 17 sheets entitled "Applewood Meadows Sewer & Water Lines ". c. Two copies of the specifications entitled, "Construction of Sewer and Water Lines, Applewood Meadows, Slippery Deemer, 92- 067 -C2 Page 13 Rock Township, Butler County ". d. Two copies of the Comprehensive Plan for the Expansion and Extension of the Slippery Rock Municipal Authority Sanitary Sewer System. e. Two copies of the following letters: West Penn Power letter dated May 20, 1987, regarding power outages; a signed acknowledgement of a letter to Slippery Rock Township regarding Act 14; a letter from Butler County regarding Act 14; and a letter from DER dated May 19, 1987, approving the planning modules for land development. f. A Soil Erosion and Sedimentation Control Plan in duplicate, prepared by William P. Deemer & Associates. g. An application for Part II Water Quality Management Permit for Sewerage signed and sealed by William P. Deemer. 31. By way of letter dated July 2, 1987, Deemer provided the Department of Environmental Resources with additional information regarding the Part II Permit #1087410, for the Applewood Meadows Subdivision. a. Deemer detailed changes made in the original application, including an upgrade from a 4" diameter force main to a 6" diameter. b. Revised copies of several drawings which include changes made to serve additional residences. Deemer advised that there is plenty of capacity in all facilities to handle the minor additions being made. 32. In a letter to the Authority's Solicitor, Richard McCandless, dated November 3, 1987, Deemer advised that a maintenance bond for the McKnight Development had been received. a. Deemer recommended that the Authority accept the bond subject to McCandless' approval. b. He recommended to the Authority that they accept the water and sewer line along with the pumping station, and begin the maintenance period of one year on November 4, 1987. c. Some legal aspects in reference to the plan need to be completed, including furnishing "as- built" drawings of the installed facilities. Deemer, 92- 067 -C2 Page 14 d. Deemer would work with McKnight in developing and certifying the costs of the water and sewer facilities to determine a per foot cost for reimbursement should anyone wish to connect to any of the facilities in the next ten years. 33. On November 25, 1987, Deemer responded to a letter he received from McCandless regarding the McKnight Plan on November 18, 1987. He advised McCandless of the additional steps being taken to complete all aspects of the requirements of the Comprehensive Plan. 34. William Deemer prepared and submitted an application for Highway Occupancy Permit to the Pennsylvania Department of Transportation Engineering District 10 -0, on behalf of the Slippery Rock Municipal Authority. The application was made in reference to water and sewer lines being installed in relation to the G. L. McKnight, Inc. development. Attached to the permit application is a Narrative Report prepared by William P. Deemer & Associates and a topographical mapping of the project location. a. The application was made on April 26, 1993. b. The application number is listed as 593096. 35. On January 19, 1993, Mr. William Rosenbaum, Aqua Terra, Inc., directed a letter regarding the plan review of the McKnight Phase II Development to Laura Andrusis, Executive Secretary of Slippery Rock Municipal Authority. Rosenbaum had reviewed four plan sheets numbered 66 -25 -W. S. -2, 3, 4, 6. Standard drawings numbered STD -S -2, and STD -W -1, were not included, and were requested for review by Rosenbaum. a. Rosenbaum noted several comments, but advised that the comments are minor and require no drawing revisions. b. Aqua - Terra, Inca was hired after the Slippery Rock Municipal Authority solicitor McCandless's December 1992 opinion (see finding #106). 36. Aqua Terra, Inc. submitted invoices to the. Slippery Rock Municipal Authority for work performed in relation to the review of the Phase II portion of the Applewood Meadows Development. a. The Slippery Rock Municipal Authority subsequently invoiced G. L. McKnight, Inc. for the services provided by Aqua Terra, Inc. in relation to the Applewood Meadows Phase II Development. Deemer, 92- 067 -C2 Page 15 37. Deemer inspected the installation of the water and sewer lines in relation to Phase I of the Applewood Meadows Sewer and Water Line Extension Project in his capacity as Slippery Rock Municipal Authority engineer. 38. William P. Deemer & Associates was paid directly by McKnight for all engineering services provided in regard to the Applewood Meadows Development and Sewer and Water Line Extension. a. No payments were made by McKnight to the Authority for any type of engineering services related to this development. b. A number of the payments made to William P. Deemer & Associates by McKnight were made through Lucas Engineering & Associates. (1) Lucas Engineering & Associates performed surveying work in relation to the Applewood Meadows sewer and water line extension project, and development. (2) William P. Deemer invoiced Lucas Engineering who invoiced G. L. McKnight, Inc., including Deemer's charges on the invoice to McKnight. The following findings relate to the sewer and water line extension for the Arrowhead Place Development. 39. Arrowhead Place was a development that was being proposed by Walter Fowler. a. The plans were submitted as one complete development. b. Walter Fowler is a member of the Slippery Rock Municipal Authority Board. 40. The Arrowhead Place sewer and water line extension plans were prepared by William P. Deemer & Associates and submitted to the Slippery Rock Municipal Authority. a. The proposed plan and profile for water was prepared March 7, 1990, and revised on December 4, 1990. ,.41. Minutes of the Slippery Rock Borough Council meetings confirm the following in regard to the Arrowhead Place sewer and water line extension. a. September 5, 1989: Walter Fowler discussed his intention to develop plans Deemer, 92- 067 -C2 Page 16 for property which he owned in. Slippery Rock Township. He approached council to request approval to tie into the borough lift station and hook onto the West Water Street water line. b. October 3, 1989: Extensive discussion regarding Walter Fowler's request for sewer and water hookup to the Authority's lines took place because Fowler had not developed any plans for the extension of the water and sewer to his property. The Comprehensive Plan required that detailed plans be submitted and a written application with drawings of the plan must be submitted six months prior to the expansion. William P. Deemer participated in the discussion and explained that Fowler had not developed plans since he did not want to spend money on the project if council was not going to approve it. Deemer explained to council that no subdivision approval had been obtained by Fowler as of that time, and that as per the Comprehensive Plan, an agreement with the township on the proposed extension would be obtained. c, October 17, 1989: Deemer asked council if they would approve Fowler's plan for the extension of the line if all the requirements of the Comprehensive plan were met. Council questioned Fowler making _ a request for the approval of council long before he submitted plans for their review. Deemer advised council that an agreement had been drafted for Fowler to sign in relation to the requirements of the Comprehensive Plan. Council subsequently voted to provide water and sewer service to Fowler's property once he had met the provisions of the Comprehensive Plan. d. November 30, 1989: Discussion was held regarding the request of Walter Fowler to extend the water and sewer lines to his development. Deemer explained that Phase I of the Comprehensive Plan allows the borough the flexibility of restricting the amount of extensions at any one time in any one direction. Deemer explained that the plan provides for the orderly extension of the line, and does limit the extension as per the specific plans that are filed for that development. Deemer advised that the size of the existing lines would Deemer, 92- 067 -C2 Page 17 not have to be changed in order for Fowler to extend from them. Deemer explained that there will be all new facilities in the township which will not require much in the way of maintenance. This would allow the borough to build a fund with revenues from the township and have less burden on borough residents to replace the borough lines. Deemer was appointed to a smaller committee which would include two members of council, two members of the Authority, two members of the planning commission, and two township supervisors along with the solicitors of the respective boards. The committee was organized to discuss development both in and outside the borough, and how it would benefit borough residents. e. March 7, 1990: Walter Fowler submitted an Application for Water and Sewer Line Extension for the Walter R. Fowler Property Development, later named Arrowhead Estates (Place). f. April 4, 1990: Deemer submitted a report on behalf of the Slippery Rock Municipal Authority regarding the Application for Water and Sewer Service Extensions for Arrowhead Estates, as developed by Walter Fowler. Deemer referenced Fowler's letter of application. That letter and attached plans were turned over to him for his review to report back to the Authority for the purpose of determining the feasibility of the project from an economic and engineering standpoint. (1) Deemer advised that Fowler's development would not task the existing water and sewer system. (2) Fowler's development would assist the Authority in reaching several goals in relation to those things which would help improve the Authority's lines and water service capability. Deemer recommended that the Authority approve Fowler's application. He found no reason from an engineering or economic standpoint for the Authority not to accept Fowler's plan. Deemer advised that Fowler had petitioned the Slippery Rock Township Supervisors to revise their Act 537 Official Sewage Plant; change the means of disposing of sewage in the area to a public sewage system. The supervisors had approved the application and the Deemer, 92- 067 -C2 Page 18 Department of Environmental Resources had issued a Part I Sewage Permit. Deemer advised that the Authority must make application for the Part II Construction Permit, because they own the system. Fowler is still responsible for paying the cost of the application fee. (1) Deemer advised that the project was properly designed; met the present and future needs in the watershed; met the requirements of the Authority; and also met the Pennsylvania Department of Environmental Resources regulations. (2) Deemer advised that adequate capacity was available in the existing system to serve the area covered by the proposal. g. June 5, 1990: Deemer questioned the Board as to whether Fowler's proposal would be reviewed by the Water and Sewer Committee for consideration. No action was taken by the Board and no comment was made at that time. 42. Minutes of the Slippery Rock Municipal Authority confirm the following actions regarding the Arrowhead Place sewer and water line extension. a. March 7, 1990: Deemer presented Fowler's Application for Water and Sewer Extension to his proposed development that would include thirty -two half acre home sites and an industrial area on Route 108 West. b. April 4, 1990: The Fowler application had been accepted at the last meeting and the plan had been referred to the engineer for his Economic and Feasibility Report. In regards to the Fowler Project, Deemer explained the water extension would be a start that would eventually loop the New Castle Street and the West Water Street dead end, thereby improving the quality of water and the increasing flow for fire hydrants. The sewage would be gravity flow to the pump station, and from there be pumped to the Conways Pump Station. An application must be made to DER because of the construction of a pump station. A.motion was made by Thomas John to authorize the Deemer, 92- 067 -C2 Page 19 Chairman to sign the application to DER for the 537 Plan for the Fowler Project. It was seconded by Elliott and passed, with Fowler abstaining. c. May 2, 1990: Deemer ,presented the application for Arrowhead Estates and explained the history to date. Fowler was asked to leave the room before a vote was called for on extension of water and sewer to Arrowhead Estates. The remaining members unanimously approved it. Fowler then returned to the meeting. d. July 11, 1990: Deemer reported that Pennsylvania Department of Environmental Resources approval of Arrowhead Estates and College Gardens had been received. A motion was approved to issue a Sales Tax Exemption and to authorize the execution thereof for the College Gardens and Arrowhead Estates Project. e. October 3, 1990: A motion was passed to ratify the new agreement between College Gardens and the Municipal Authority, and the agreement between Fowler and the Municipal Authority. The motion was passed with Fowler abstaining. f. December :5 1990: Fowler reported that the water line to Arrowhead Estates had been completed and pressure tested. A motion was approved to accept ownership and the responsibility of maintenance and operation of the water line installed by Fowler. The motion passed with Fowler abstaining. A motion was approved to certify the proportionate cost to anyone wishing to connect to the water line along the portion of West Water Street as being $11.32 per lineal frontage foot. The motion was seconded by Bloom and passed with Fowler abstaining. 43. A Planning Module for Land Development was submitted to the Department of Environmental Resources by William P. Deemer on September 21, 1989, on behalf of property owned by Walter Fowler in Slippery Rock Township. a. William P. Deemer submitted a resolution for Act 537 Plan Deemer, 92- 067 -C2 Page 20 Revision regarding the Walter Fowler property in Slippery Rock Township. b. Deemer's report determined that the existing Conway Sewage Pump Station had the capacity to receive the sewage from the .proposed sewage pump station to be installed in the Fowler development. Deemer additionally noted that the water line proposed by Fowler would assist the Authority in looping the dead end distribution mains on West Water Street and New Castle Street, thereby providing upgraded service to all those on the line. 44. On June 21, 1990, the Department of Environmental Resources advised the Authority that Sewage Permit #1090404 had been issued to the Authority for the construction of a sewer extension and pump station to serve the Arrowhead Estates Project located in Slippery Rock Township. 45. On October 3, 1990, Walter and Dorothy Fowler entered into an agreement with the Slippery Rock Municipal Authority and the Township of Slippery Rock. The terms of the agreement are the same as those set forth in the Comprehensive Plan. a. On November 21, 1990, Walter and Dorothy Fowler sold the Authority, for the sum of $1.00, the right -of -ways or easements specifically for water lines installed by Fowler. b. On that same date, Walter and Dorothy Fowler signed a Bill of Sale transferring ownership of the water line installed by Fowler on his property, to the Authority. c. Walter Fowler maintains ownership of the sewage line and pump station as of this date. 46. On December 5, 1990, William P. Deemer issued a letter to the Slippery Rock Municipal Authority regarding the Arrowhead Plan owned by Walter and Dorothy Fowler in regard to the water line installed by Fowler. a. Deemer certified that the water line had been completed and that he had inspected the line installation frequently. b. Deemer also approved the Irrevocable Letter of Credit issued by the First National Bank of Slippery Rock on behalf of Walter and Dorothy Fowler in the amount of $60,000.00. c. Deemer acknowledged the Executed Bill of Sale for the water line in the amount of $1.00, and advised that it Deemer, 92- 067 -C2 Page 21 was necessary to obtain a Deed of Dedication to use the rights -of -way for the proposed streets and water lines since the Fowlers had not recorded their plan of lots. d. Deemer advised that he had certified the itemized cost of the project as submitted by Fowler to be $22,746.12, for that section of water line. Deemer established a cost of $11.32 per lineal foot for anyone who wishes to tap into the water line along West Water Street installed by Fowler. e. Deemer certified that all items that are necessary are complied with and recommended that the Authority accept the facilities as part of their water distribution system. Deemer signed and sealed the Letter of Certification. 47. William P. Deemer and Associates invoiced Walter Fowler for engineering services in relation to Arrowhead Place Development. a. March 8, 1990: Service period: 09/24/89 Services performed: Meetings Act 537, Part I - Modules 2 water extensions, submission Authority. Specific Services: Principal engineer: 19.75 hrs @ $50.00 Drafting and engineering support: 72.5 hrs. @ 20.00 Secretarial: 3.5 hrs. @ $10.00 Prints and Photo copies: b. April 30, 1990: Service period: Services performed: Specific Services: Principal engineer: 18 hrs. @ $50.00 Drafting and engineering support: 48.5 hrs. @ $20.00 Prints: through 03/07/90 with owners, revisions to and 4, design of sewer and to Slippery Rock Municipal $ 987.50 $1,450.00 $ 35.00 $ 48.00 $2.520.50 08/08/90 through 04/30/90 Meetings with owners, revisions to plans and design of sewer and water extensions, meetings with Slippery Rock Municipal Authority. $ 900.00 $ 970.00 $ 276.00 Deemer, 92- 067 -C2 Page 22 c. July 7,1990: Service period: Services provided: Specific Services: Principal engineer: 10.5 hrs. @ $50.00 Drafting and engineering support: 18.5 hrs @ $20.00 Prints, copies and miscellaneous: Recording fee advance Fax Service Prints and copies d. October 2, 1990: Service period: Services provided: Specific Services: Principal engineer: 35 hrs. Drafting and engineering support: 7.0 hrs Prints: 32 @ $4. e. December 10, 1990: Service period: Services performed: $2,146.00 05/01/90 through 07/06/90 Meetings and consultation with owner, state and local officials and contractors for the issuance of the Water Quality Management Permit Part II, construction of the sewer and water extensions. @ $50.00 . @ $20.00 00 each $ 525.00 $ 370.00 $ 17.50 $ 2.00 $ 72.00 $ 986.50 07/07/90 through 10 /01/90 Meetings with owner, review and certification of pump station plans, inspection and consultation on -site during construction, work on final drafts, execution of Slippery Rock Municipal Authority extension agreements. $1,750.00 $ 140.00 $ 128.00 $2,018.00 10/02/90 and 12/10/90 Preparation of as built" water drawings and agreements with Slippery Rock Municipal Authority, Deed of Dedication, Bill of Sale, cost certification, proportionate charge calculations, inspection. Specific Services: Principal engineer: 22.5 hrs. @ $50.00 $1,125.00 Deemer, 92- 067 -C2 Page 23 Drafting and support: Secretarial: Prints: f. August 7, 1991: Service period: Services performed: a. engineering 4 hrs. @ $20.00 3.5 hrs. @ $10.00 12 @ $4.00 12/11/90 and 08/06/91 Inspections and work on final "as built" drawings, meetings with contractor. Specific Services: Principal engineer: 6 hrs. @ $50.00 Drafting and engineering support: 13.75 hrs. @ $20.00 Prints: 12 @ $4.00 each a. The plans signature b. Revisions P. Deemer 1990, and c. The plans Profile ", Municipal August 5, 1987: $ 80.00 $ 35.00 $ 48.00 $1,288.00 300.00 275.00 48.00 623.00 The following findings relate to the Poplar Forest Water & Sewer Line Extension: 48. The Poplar Forest Sewer and Water Line Extension was a project proposed by Nicholas R. Borgfeldt. a. The project was submitted and developed in three phases. 49. Records of the Slippery Rock Municipal Authority show that the Poplar Forest Water and Sewer Line Extension plans were prepared by William P. Deemer & Associates, Consulting Engineers. dated June 2, 1989, do not include the seal and of William P. Deemer. to the original plans were prepared by William & Associates on July 17, 1989, February 5, August 6, 1991. are titled "pressure sewer and water: Plan and and were prepared for the Slippery Rock Authority. 50. Minutes of the Slippery Rock Municipal Authority confirm the following regarding Poplar Forest Sewer and Water Line Extension. Deemer, 92- 067 -C2 Page 24 Nick Borgfeldt presented the proposed plan for acreage between Kelly Boulevard and Kennametal. Borgfeldt stated that he would like to have the land zoned for residential, as well as light industrial use. Also, he would like to purchase a tract of land owned by the borough, which is in the middle of it. b. April 5, 1989: Deemer reported that Borgfeldt is ready to install the water line through his property. He is to use a 8" line. Deemer recommended that a 10" line be used instead, citing the advantage of a 10" attached to 8" parallel lines would s on power. When asked whether the advantage would be worth the expenditure, Deemer advised that he would rather spend it where it is needed now, not thirty years from now. The consensus of the Authority was to stay with the 8" line. c. July 5, 1989: A motion was approved giving the chairman authorization to sign the necessary construction permits for the Borgfeldt, and Campbell projects. d. August 2,A.989: e. November 1, 19189: Deemer- reported that the:537 Plan Revision on the Borgfeldt plan has never been returned by DER. Borgfeldt has no sewage permit, although representatives from DER had given verbal agreement at the June 29, 1989 meeting. f.. December 6, 1989: g. Deemer reported that approximately 700 feet of sewer line has been installed in the Borgfeldt project, and the road is in past Renick's house. Deemer reported that nothing more has been heard concerning the Borgfeldt 537 Plan. It has been returned from Meadeville to New Castle for more processing. With the water line through the Borgfeldt project, soon there will be parallel -feed lines to the borough. January 3, 1990: Deemer reported that he had talked to DER and that he should hear about the 537 Plan for Borgfeldt in a week or Deemer, 92- 067 -C2 Page 25 two. The parallel feed line is not in operation yet since the cold water forced the delay of installing the necessary fire hydrants. h. February 7, 1990: J Deemer reported that the 537 Sewage Plan for Borgfeldt has been approved. i. March 7, 1990: Deemer reported that a letter dated January 23, 1990, from DER approved the Borgfeldt 537 Plan, and informed him that under the new Act 40, there would be no need to file any more permits for that plan since no pump station is needed in it. The parallel feed line for water from the plant has to be charged and put into service this week. July 10, 1991: A letter was received from Robb, Leonard & Mulvihill, representing Nick Borgfeldt, stating that the water and sewer lines in Poplar Forest up to Lot 205, have been installed in accordance with the Municipal Authority's requirements. Deemer reported that the lines should be ready for the Authority to accept by the next meeting. The Authority agreed that they should require a maintenance bond in the amount of 15% for eighteen months. k. August 7, 1991: Deemer reported that the water and sewer lines in Phase I and II of the Poplar Forest Plan are complete and that Borgfeldt is requesting the Authority to accept these lines. Following considerable discussion, a motion was made, seconded and approved, to accept the lines in Phase I and II with the following provisions: (1) Borgfeldt provides the Authority with a maintenance bond in the amount of 15% of the construction cost for a period of eighteen months; (2) Borgfeldt provides the Authority with a performance bond (100% of construction cost) on Phase III. (The current performance bond is in the name of the borough for the water and sewer lines). (3) Borgfeldt installs a valve on the sewer line at the end of Phase II. Deemer, 92- 067 -C2 Page 26 1. September 4, 1991: Nick Borgfeldt addressed the Authority, requesting they accept the water and sewer lines for his entire project in the Poplar Forest (Phase I, II, and III). He stated that in turning over the entire project, it would enable him to enter into a right -of -way agreement with Zedmark to tie them into the Authority sewer line. Borgfeldt stated he would be responsible for any modifications to the lines. A motion was made to accept the water and sewer lines in Poplar Forest upon receipt of a maintenance bond in the amount of 15% for a period of eighteen months. The amount of the bond will be $18,680.78. The motion was approved. m. January 8, 19 Paul Dickey, Water Supervisor, reported that he and Deemer were planning to do an evaluation of pump size for each lot in the Poplar Forest Plan. He said it would take approximately half of a day of Deemer's time. n. May 5, 1993: A letter was read from Robb, Leonard & Mulvihill requesting the release of the Letter of Credit posted as maintenance bond by Nick Borgfeldt for the water and sewer lines in Poplar Forest. A motion made to release the Letter of Credit was seconded and approved. 51. By way of letter dated July 17, 1989, to the Butler County Planning Commission, William Deemer, as Authority Engineer, submitted copies of the planning modules pertaining to the Application for Sanitary Sewer Extension for the Poplar Forest Project. (See finding #54). a. Deemer requested that the Planning Commission review the modules and provide a letter including comments that are applicable to the extension and the area under development as required under 14. b. The planning modules were also submitted to DER as required under Act 14, and the application process for a Water Quality Management Permit to cover the construction of this extension to the Slippery Rock Municipal's Authority sewer system. 52. In response to Deemer's letter of July 17, 1989, Margaret Ford, Planning Directbr of the Butler County Planning Commission responded on August 17, 1989. Deemer, 92- 067 -C2 Page 27 a. Ford advised that the Planning Commission approved the development based on the availability of sewage treatment by the Municipal Authority. b. The Planning Commission reviewed the planning module for Poplar Forest Development and approved the revision of the official plan of the Borough of Slippery Rock for these developments. c. The same letter covered the review of planning modules submitted for the Zedmark, Incorporated development. The Zedmark Development utilized the lines installed by Nick Borgfeldt for Poplar Forest. 53. A Planning Module for Land Development was submitted by William P. Deemer to Pennsylvania Department of Environmental Resources for the Poplar Forest Subdivision. The planning module is signed and sealed by William P. Deemer, and dated July 10, 1989. Included were: a. A topographical mapping of the locations of both developments. b. A Narrative Report to accompany the Act 537 Sewerage Plan Revisions for Poplar Forest and Zedmark, Incorporated. c. A Narrative Report to accompany Act 537 Sewerage Plan Revisions for Slippery Rock Borough and Slippery Rock Township, Butler County, Pennsylvania. d. The component IV for the Planning Module for Land Development prepared by William P. Deemer, signed and sealed on July 17, 1989. 54. A transmittal letter and a resolution for plan revision for Poplar Forest Projects, dated June 6, 1989, was prepared by William P. Deemer. a. The plans were revised on September 7, 1989, and December 14, 1989. b. The copies provided do not include the signature or seal of William P. Deemer as engineer. 55. By way of letter dated August 5, 1991, William P. Deemer provided the Authority with a Letter of Certification regarding the installation of the water and sewer lines in regard to the Poplar Forest Plan, Phases I, and II. Deemer's letter advised as follows. Deemer, 92- 067 -C2 Page 28 a. He had inspected the line installation frequently and is satisfied with same. b. Once the Letter of Credit issued by the First National Bank of Slippery Rock, on or about August 13, 1991, is received by the Authority, the requirements of the Authority will have been met. c. Other requirements of the Comprehensive Plan have been complied with. d. An itemized cost breakdown of the construction costs for the water and sewer lines in Phase I and II. Deemer recommended that the Authority accept the facilities constructed by Nicholas Borgfeldt in Poplar Forest Plan, Phases I and II, as part of their water distribution system. 56. Minutes of the Borough Council meetings confirm the following regarding the Poplar Forest project. a. January 2, 1990: Borgfeldt discussed Phases II and III of the Poplar Forest Plan, council will approve the partial revision of Phase I, Phase II, and III, of the Poplar Forest Plan, subject to the execution of a Developer's Agreement. (1) Borgfeldt's plans for Phase I, II, and III, had been approved in total in 1 when Phase I was developed. b. August 7, 1990: Council approved the Irrevocable Letter of Credit to include the completion of Phase I, as well as Phase II and III, of the Borgfeldt Poplar Forest Plan. The Letter of Credit satisfied the requirement of the Comprehensive Plan that a bond be posted upon the completion of the development. The bond was held for specific time to cover any problems with the maintenance or installation of the water and sewer lines during that time. 57. After the January 2, 1990, Council meeting, William P. Deemer offered his services to Borgfeldt, and advised that he could help with the sewer and water line extension, and some of the work on the master plan. a. Deemer was located in Slippery Rock, and as Authority Engineer, knew the water and sewer system. Deemer, 92- 067 -C2 Page 29 b. Deemer never indicated in any way that hiring him could be beneficial to Borgfeldt or his plan. 58. Borgfeldt experienced problems in 1991 to DER regulations. in Phase III relating a. Borgfeldt retained a new engineer, Norm Straub, who was also the borough engineer. b. After this time, Deemer was no longer used on the Poplar Forest Plan. The following findings relate to College Gardens Apartments, Water and Sewer Line Extension, (also known as the Kiester Road Apartments). 59. The College Gardens Apartments Water and Sewer Line Extension was being proposed by JGame Properties, owners of the property. a. JGame Properties employed Arbors Management, Incorporated, to manage College Gardens Apartments. b. Mr. Edward Quinlan is owner of Arbors Management, Inc., and a partner in JGame Properties. 60. Plans for the College Gardens Apartments Water and Sewer Line Extension were prepared by William P. Deemer & Associates. 61. Minutes of the Slippery Rock Municipal Authority reflect the following regarding the College Gardens Apartments Water and Sewer Line Extension. a. April 5, 1989: Edward Quinlan, head of the management company that operates the Kiester Road Apartment complex, College Gardens Apartments, expressed interest in obtaining water and sewer service from the borough. Deemer assessed the situation and determined how best to extend service to the site. Also, he gave Quinlan an estimate of the cost and the amount of tap fees under guidelines of the Comprehensive Plan. b. May 3, 1989: Deemer did some work on the engineering design for the feasibility of water and sewer to the Kiester Road Apartments. He showed the Municipal Authority a map of how it could possibly be handled. Quinlan is paying for this Feasibility Report; it would be his decision on how Deemer, 92- 067 -C2 Page 30 to proceed. c. June 7, 1989: The Chairman read the letter of May 5, 1989, from Ed Quinlan concerning the extension of water and sewer to the Kiester Road Apartments, and his request to have the tap fees reduced. It is not the Authority's responsibility to set and charge the tap fees, that is the responsibility of council because of the lease -back agreement between the Authority and the borough. The opinion of the Authority is that Deemer should present the situation to council. The Authority feels that there may be some possibility in negotiation of the water tap fees since there is not a meter for each apartment. The Authority feels there is little room to consider negotiating sewer tap fees. d. September 6, 1989: Ed Quinlan attended the school board meeting of August 28th, to request a right -of -way for a water line to the Kiester Road Apartments. Deemer said the board appeared favorable to his request. e. October 4, 1989: Deemer reported that council will act on the ordinance that will raise the tap fees for water and sewer at their October 17th meeting. The school• board has asked that the right -of -way for the water line to College Gardens Apartments on'Kiester Road be along the road instead of across their practice field. Deemer has drawn the plans accordingly. The question was brought up whether the Authority should ask for the right -of -way first, or wait to see if council approves the extension of water and sewer. Deemer's opinion is to ask for the right -of -way. If it is not approved, the Authority still has the right -of -way. A motion was approved for the Authority to send letters to the school board and the Coopers to procure the necessary right -of -ways to extend water and sewer lines to College Gardens Apartments on Kiester Road. f. January 3, 1990: Deemer reported that Quinlan (Kiester Road Apartments), was still interested in obtaining water and sewer service. Quinlan had Deemer doing the engineering design Deemer, 92- 067 -C2 Page 31 of the water line so that when the moratorium was lifted, he could proceed. g. March 7, 1990: Deemer presented Quinlan's Application for Extension of for Water and Sewer Line to the College Gardens Apartments on Kiester Road. He showed and explained the plans. He projects that the Authority will receive approximately $87,500.00 annually in revenue from it with less than $10,000.00 annually to service it. The project has been figured into the annual report, so that without the revenue from it, water and sewer rates would have to be increased. The Municipal Authority, as a group, accepted the application. h. April 4, 1990: Since the Arbors Management Application had been accepted at the last meeting, the plans had been referred to the engineer for his Economic and Engineering Feasibility Report. Deemer passed out copies of his report and explained that College Gardens would have to apply for a Public Water Supply Permit. All construction for water would be on private rights -of -way. This extension would improve water quality in the Cross and High Street area by flushing the dead -ends. There would be no outlay of borough or Municipal Authority money for either water or sewer extension. All sewage would be by gravity flow except for the lower building and the laundry where a grinder pump would be installed and operated by Arbors Management. Both water and sewer lines would be extended across the property to Harmony Road. i. May 2, 1990: Deemer presented the first application which was from Arbors Management for water and sewer service to College Gardens Apartments on Kiester Road. Their formal application had been made by the letter March 7, 1990, to the Authority, of which a copy had been given to council. At the March meeting, the Authority had reviewed it and referred the application to the engineer for his Economic and Feasibility Report, as required under Item 8 of the Comprehensive Plans. Deemer had given his report at the April meeting in which he stated that the extensions were feasible and economical and would increase the income of the Water and Sewer Fund by approximately $87,000.00 per year, with an outlay of two or more meters to read and enough electricity to run the pumps about 62 minutes per day. Deemer, 92- 067 -C2 Page 32 j A motion was approved unanimously allowing an extension of water and sewer to College Gardens Apartments. August 1, 1990: Deemer reported that the Right -Of -Way Acquisition for the College Gardens Apartments project is moving along. Deemer presented two bills - one in the amount of $315.00 for surveying°the'College Gardens Right -of -Way, and the other in the, amount of $2,932.25, for engineering services towards "refinancing the bond issue. The motion to pay the bills was seconded and approved. k. October 3, 1990: A motion was made to ratify the new agreement between College Gardens and the Authority. The motion was seconded and approved. 1. February 6, 1991: Deemer reported that he understood that contracts had been signed for the College Gardens project. m. March 6, 1991.: Deemer reported that work is progressing at College Gardens Apartments and that they are nearly ready to connect sewer lines. Laura Andrusis, Executive Secretary, was directed to bill College Gardens for their tap fees. n. May 1, 1991: . Deemer reported that the College Gardens Apartments on Kiester Road are now 100% on line for water and sewer. o. November 6, 1991: Laura Andrusis reported that she had received a letter from Mr. Quinlan of Arbors Management requesting information on turning the public portion of the water and sewer lines to College Gardens Apartments over to the Authority. She had sent the necessary information to Quinlan. June 2, 1993: A letter was read from Edward Quinlan of JGame requesting Deemer, 92- 067 -C2 Page 33 the release of the Certificate of Deposit held as a maintenance bond for the water and sewer lines for Kiester Road Apartments. The bond expires June 4, 1993. A motion was made to release the Certificate of Deposit on June 4, 1994. The motion was seconded and approved. 62. Arbors Management sewer and water line extension for the College Gardens Apartments project in Slippery Rock Township included plans titled, "Plan and Profile of the Proposed Sanitary Sewer and Water Extension along Kiester Road - S. R. Township - Butler County - Pennsylvania ". a. The plans were prepared by William P. Deemer & Associates on March 2, and March 4, 1990. b. Additional revisions to add "as- built" drawings were made on October 26, 1990 by Deemer. c. Both plans are signed and sealed by William P. Deemer, Engineer. 63. By way of letter, dated April 18, 1986, Deemer advised Edward Quinlan regarding his inquiry into obtaining water and sewer service for the College Gardens Apartments, of the following: a. The Authority had adopted a policy regarding the extension of water service into the township, but had no policy for sewer service extension. b. In addition to the cost of extending an 8" line, Quinlan would be responsible for the costs of the engineering and legal expenses. 64. On January 4, 1989, the Act 537 Sewerage Plan Revision Module, was submitted by Slippery Rock Township to Pennsylvania Department of Environmental Resources, in regard to the sewer and water line extension proposed by College Gardens Apartments. a. Deemer prepared a Project Narrative Report which was submitted with the module which provided in part: The Borough and Authority had given general approval for the proposed extensions. The Authority systems had the capacity to handle the water and sewer service to the apartments. The customer would be required to operate and maintain those portions of the system not being taken over by the Authority. Deemer, 92- 067 -C2 Page 34 65. On November 14, 1989, Deemer submitted a Progress Report to Mr. Edward Quinlan, Arbors Management, Inc. which contained the following. a. Deemer met with the. Slippery Rock School Board to negotiate necessary right -of -ways for the line extension. He had also contacted West Penn Power Company regarding possible right -of -ways across their property. b. Thomas Construction installed a meter so that a determination could be made on average water consumption. A figure of $8,750.00, per month for water and sewer service was determined by Deemer. This would average out to approximately $87,500.00, per year. Prior operating costs for the old system ran about $30,000.00 per year. The water and sewer line would represent an increase of approximately $33.00 per month, per apartment. c. A new rate schedule would significantly reduce the cost for the tap fee from $35,300.00, to $7,800.00. This included tap fees for water and sewer combined. 66. On May 2, 1989 Ed Quinlan, Arbors Management, Inc., advised Slippery Rock Borough Council President, Caroline Miller, of the intention to install water and sewer lines to the College Gardens. Apartments. a. Quinlan and William Deemer, the borough engineer, had discussed the most economical way to install the water and sewer lines. b. Quinlan requested a reduced tap -in charge for the 174 units included in the proposal which Deemer determined the cost to be $35,000.00. c. Since all 174 units would be tapped At one time, Quinlan proposed a reduced tap -in charge. 67. By of letter dated May 12, 1989, William Deemer advised Edward Quinlan, Arbors Management, Inc., that he had determined the best way to provide water and sewer service to the College Gardens Apartments complex. a. Deemer estimated the project cost for the sewer line including the Feasibility Study conducted by himself; designed drawings; permits; fees; agreements; and inspections would total $55,530.00. 68. Arbors Management, Inc. utilized Thomas Construction, Inc. to perform the installation of the water and sewer lines. Deemer, 92- 067 -C2 Page 35 69. Deemer presented a request for a right -of -way for the water and sewer line extension of College Gardens Apartments to the Slippery Rock Area School Board by letter dated September 12, 1989. a. Deemer advised the Board that he has represented the Slippery Rock Municipal Authority and Slippery Rock Borough Council, as Authority and borough engineer, for sixteen years. b. The letter served as a formal notification of a request received by the Board for line extensions to College Gardens Apartments. Deemer and Quinlan had attended the August 28, 1989, school board meeting. 70. Based on Deemer's proposals on the benefits of the line extensions for all parties concerned, Gladys Hilgar, Secretary of the Municipal Authority, wrote a follow -up letter to the school board dated October 4, 1989. a. Hilgar advised that the project was within the guidelines of the Comprehensive Plan, and that it would be constructed to the satisfaction of the consulting engineers. 71. On March 7, 1990, Edward Quinlan submitted a Letter of Application to the Slippery Rock Authority on behalf of Arbors Management, Inc. in regard to the sewer and water line extension to College Gardens Apartments. 72. By way of letter dated June 27, 1990, the Pennsylvania Department of Environmental Resources, Bureau of Water Quality Management, approved of the Module for Land Development for the College Gardens Apartments, Slippery Rock Township. 73. On October 3, 1990, the Slippery Rock Municipal Authority, Township of Slippery Rock and JGame Properties, (care of Arbors Management, Inc.), entered into an agreement for the extension of water and sewer lines to the College Gardens Apartments located in Slippery Rock Township. a. As part of the agreement, the developer assumed the responsibility of meeting the required specifications and paying for all costs incurred by the Authority relating to the review, inspection and approval of the project. 74. On October 18, 1990, William Deemer prepared a report titled Specifications for Construction of sewer and water lines for the College Gardens Apartments located on Kiester Road, Slippery Rock Township, Butler County, Pennsylvania. The specifications were revised on October 29, 1990. The cover Deemer, 92- 067 -C2 Page 36 page for the report is signed and sealed by William P. Deemer. 75. On February 18, 1991, Deemer explained to Quinlan in a letter that information contained in a Thomas Construction letter, dated February 13, 1991, was misleading. Thomas Construction indicated that "all engineering is complete and permits have been obtained ". Deemer offered the following: a. Enough engineering had been done to know that the project, as proposed, would work within the scope of the project. b. He will be there daily to make sure it is installed in accordance with the Authority's specifications. c. Survey the actual facility as constructed and prepare "as- built" drawings. d. Describe the right -of -way across his property to include all facilities to be turned over to the Authority. e. Quinlan needs to dedicate the right -of -ways to Authority ownership and maintenance and comply with the additional requirements of the Comprehensive Plan. 76. On March 18, 1991, JGame Properties completed an application and agreement for water and/or sewer service connections and continued service to the Slippery Rock Municipal Authority. a. The agreement is signed by Paul Dickey, Slippery Rock Authority Representative, and Edward J. Quinlan on behalf of JGame Properties. b. The application required information regarding the estimated flow for water and sewer, number of units being connected, cost for connections, etc. 77. On August 8, 1991, Deemer advised Quinlan by letter, that the construction of the project is in its completion phase. A number of items need to be completed under the requirements of the Comprehensive Plan, and Deemer requested a meeting after August 20, 1991. 78. A plan (drawing) prepared by William P. Deemer & Associates on November 27, 1991 was completed on behalf of Slippery Rock Area Municipal Authority, and included right -of -ways for sewer and water extension along Kiester Road (College Gardens Apartments). a. The plans were prepared utilizing the company heading of William P. Deemer & Associates. Deemer, 92- 067 -C2 Page 37 b. The seal and signature are that of Charles L. Hinds, Lucas Engineering. c. Hinds signed the plans as a registered Professional Surveyor, certifying that the plan is based upon actual field survey of the land described. d. The signature and seal of William P. Deemer do not appear on these plans. 79. On November 29, 1991, Deemer sent Edward Quinlan the right -of- way Deed of Dedication and Bill of Sale requiring his signature. a. Deemer recommended a 15 %, eighteen month maintenance bond, or approximately $15,000.00. b. Deemer submitted a copy of his proposed letter to the Authority setting forth the project cost, which the bond was based upon, which he estimated to be $118,729.70. c. On December 2, 1991, Edward Quinlan provided the signed Deed of Dedication and Bill of Sale to Deemer regarding the College Gardens Apartments. 80. By way of letter, dated December 4, 1991, William Deemer recommended to the Slippery Rock Municipal Authority that they accept the water and sewer lines to the College Gardens Apartments. His letter included the following. a. He had inspected the line installation frequently, and was satisfied that it is an excellent addition to the Authority's system. b. The lines had been tested, problems rectified, and the line had been holding the working pressure since May, 1991. The sewer system had been on line since June, 1991. c. The Certificate of Deposit assigned to the Authority was of acceptable form, in the proper amount, and would satisfy the requirements of the Authority for guarantee of maintenance of the line for an eighteen month period at 15% of the cost of construction. Deemer recommended that the Authority accept the amount in lieu of the 100% cost for twelve months as set forth in the agreement. d. All necessary legal right -of -ways and Bills of Sale had been executed. e. He certified the proportionate cost for the water line, Deemer, 92- 067 -C2 Page 38 should additional development occur, which would utilize the lines installed for College Gardens Apartments, to be $25.10 per lineal foot. f. On a separate page, Deemer delineated the project cost which included engineering design and supervision, right - of -way, inspection, etc., for the water line to be $7,759.00. The total cost of the project was $57,917.00. The engineering for the Sewer line was estimated to be $7,759.00 (1/2 of the amount allocated for both the water and sewer line costs). Total cost of the sewer line: $60,812.70. Deemer certified that the expenses were correct and true and represent only those costs attributable to the public lines which are being dedicated to the Slippery Rock Municipal Authority for public use. Deemer signed and sealed the attached page. 81. Deemer advised the Authority by way of letter dated December 10, 1991, that he had received the proper maintenance bond from JGame Properties, in the amount of $15,000.00. 82. A partial listing of William Deemer Associates invoices to JGame Properties, c/o Arbors Management included the following. a. April 13, 1990: Service period: Services performed: Total: b. April 5, 1991: Service period: Services performed Total: c. May 6, 1991: Same invoice as d. December 23,; 1991: Service period: 1989 through April 13, 1990 Submission of plans to the Slippery Rock Municipal Authority, meetings with borough and Slippery Rock Municipal Authority representatives, letters and blue prints. $1,094.50. Through March 31, 1991 : Engineering supervision and inspections. $1,975.00. 04/05/91 with a 1.5% surcharge. Through December, 1991. Deemer, 92- 067 -C2 Page 39 Services performed: Engineering and survey work to complete requirements for final acceptance by the Authority. Total: $1,500.00. 83. By letter dated January 7, 1991, Deemer advised Quinlan that his original estimate of 5/12/89 totaled $11,000 but did not include certain increases. 84. On May 16, 1991, Quinlan advised Deemer that the invoice in an amount of $2,004.63 would not be paid because of an error in the design of the sewer line resulted in additional costs of $6,000 or more. a. Quinlan further advised that a lawsuit was being considered. The following findings relate to the Basta /Messer Water Sewer Line Extension Project. 85. The Basta /Messer Sewer Line Project was a project that was being proposed by Jeffrey and Mary Messer, and John and Joanna Basta. a. This project involved a short line extension to an individual property, not a development. 86. Records of the Slippery Rock Municipal Authority indicate that the Basta /Messer Sewer Line Extension Plan was prepared by William P. Deemer & Associates and signed and sealed on June 3, 1992. 87. Minutes of the Slippery Rock Municipal Authority reflect the following regarding the Basta /Messer Sewer Line Extension Project. a. May 6, 1992: Deemer reported that according to DER, a 537 Plan will not be needed for the Basta property on Kiester Road for the sewer extension they are planning. b. June 3, 1992: Deemer presented plans for a sewer line extension for the Basta and Messer property on Kiester Road. He reported that they are in the process of obtaining a right -of -way from JGame. A motion was approved to enter into an agreement for the extension of the sewer line with Basta and Messer, and to authorize the proper officials to Deemer, 92- 067 -C2 Page 40 execute the agreement. c. December 2, 1992: Deemer reported the Basta /Messer Sewer Extension on Kiester Road was complete, and he had inspected the line and certified that it meets the construction and testing standards of the Authority. He recommended the Authority take ownership of the line subject to the posting of Proper Maintenance Bond and Bill of Sale. It was suggested that an outside engineer inspect and certify the line, as. Deemer was also engineer for Basta /Messer. It was recommended that the Executive Secretary contact Aqua Terra to see if they would do this. Discussion followed regarding the fact that since the line had already been buried, another engineer could not inspect it. A motion was approved to accept ownership of the line pending receipt of the maintenance bond and Bill of Sale. The Executive Secretary was instructed to contact the solicitor for advice on how certification of other projects where Deemer was the engineer for the developers should be handled, and to contact Aqua Terra to see if they would be interested in this. 88. By way of letter, dated June 3, 1992, William Deemer reported to the Slippery Rock Municipal Authority with recommendations regarding the Basta /Messer Sewer Extension. a. Deemer contacted the Department of Environmental Resources relative to the need for an Act 537, Plan Revision Filing, for the extension and was informed by DER that such a plan revision was not necessary. b. Deemer reviewed the plans for the owners, and checked the requirements of the Comprehensive Plan and the agreement between the borough and the township for sewer line extensions. c. Deemer certified that all requirements had been met, and recommended that since the proposal was found to be feasible from an economic and engineering standpoint, that the agreement be authorized. 89. An agreement between Slippery Rock Municipal Authority, Slippery Rock Township, Jeffrey and Mary Messer, and John and Joanna Basta was entered into on June 3, 1992. Deemer, 92- 067 -C2 Page 41 a. A Right -Of -Way Agreement with JGame Properties was signed on June 17, 1992. 90. Based on information provided by Deemer, a letter was written to Basta /Messer by Laura Andrusis, Executive Secretary of the Slippery Rock Municipal Authority. The letter advised that the outstanding cost of the engineering fees for the project would not exceed $400.00. 91. In a letter to the Authority, dated December 1, 1992, Deemer certified that he had inspected the Basta /Messer Sewer Line Extension; tested the line and certified that it meets the construction and testing criteria of the Authority; prepared two copies of the "as built" drawings, showing the line as constructed; and recommended the Authority take ownership of the line. a. Deemer also determined that, as per the Comprehensive Plan, a 15% bond to be held by the Authority for a fifteen month period, would amount to $600.00. b. The total cost of the line extension by Thomas Construction Company came to $4,000.00. 92. On December 1, 1992, Deemer provided the Authority with an invoice for work performed relating to the Basta /Messer Extension. The invoice included services relating to the review of the design, certification of the engineering, economic feasibility, the inspections during the construction, the "as built" drawing, the certification of the maintenance bond requirement, and the recommendation of acceptance of the line by the Authority. The following costs were detailed: Principal Engineer - 3.0 hrs @ $50.00 per hr = $150.00 Drafting - 6.0 hrs @ $ ?0.00 per hr = $120,00 Secretarial - 1.0 hrs @ $12.00 per hr = $ 12.0D Field Survey Work "as built " - 1.5 hrs @ $55.00 per hr = $82.50 Print 4 @ $4.00 each = $ 1640 Total amount due = $380.50 93. At the December 2, 1992 Authority Board meeting, Deemer reported on the Basta /Messer Extension. He advised the Board he had inspected the line, and that it was completed according to the construction and testing standard of the Authority. Deemer recommended that the Authority take ownership of the line subject to the posting of the maintenance bond. The Board accepted ownership of the line. a. One of the Board members recommended having an outside engineer inspect and certify the line, since Deemer was Deemer, 92- 067 -C2 Page 42 also the engineer for Basta /Messer. The problem was that the line had already been buried. b. Laura Andrusis was instructed to contact the solicitor for advice on the certification of other projects where Deemer was the engineer for the developer, and how it should be handled. (see finding #105). The following findings relate to the Davcol, Inc., Corporated Sewer and Water Line Extension project. 94. The Davcol, Inc. Sewer and Water Line Extension project was submitted by the owners, Don and Florence Bronder. 95. Records of the Slippery Rock Municipal Authority indicate that the Davcol, Inc. /Bronder water line extension plans were prepared by William P. Deemer & Associates. a. The plan is titled, "Proposed Water Line Extension to the SRMA System for Davcol, Inc. and Others." b. The plans were drawn on August 4, 1992. c. The plans were signed and sealed by William P. Deemer, dated August 5, 1992. 96. In relation to the Davcol, Inc. /Bronder Water Line Extension project, minutes of the Slippery Rock Municipal Authority confirm the following. a. December 4, 1985: The Authority received a check from Davcol in the amount of $225.00 as partial payment of the engineering and legal fees incurred when Davcol considered tapping into the borough water system. b. January 8, 1986: The check from Davcol in the amount of $225.00 is to be transferred to the borough since they have paid Deemer and will handle the balance of Davcol's payments. c. April 1, 1992: The 537 Planning Module for Davcol, Inc., for a development of 9.7 acres on West Liberty Road, Slippery Rock 'Township. d. August 5, 1992: Deemer, 92- 067 -C2 Page 43 Deemer presented plans for the extension of a water line to service the Bronder property from West Liberty Road. Deemer reported that the plans are in compliance with the requirements of a Comprehensive Plan, and that the proposal is sound from an engineering aspect and is feasible from an economic standpoint. A motion was approved authorizing the execution of an agreement for the extension of the water line. Deemer reported that the Highway Occupancy Permit has been sent for this project in the Authority's name since the Authority will be the owner and maintain the lines in the future. He reported that approval from DER for the 537 Plan Revision for the extension on the sewer line for this project has been received, and that once the owner has determined the most beneficial way to route the sewer lines, they will proceed with the design. e. September 10, 1992: Deemer reported that the Bronder Agreement for the Water Line Extension is ready to sign, and that the Authority has received the Highway Occupancy Permit from PennDOT for the water line. He reported that there has been no further action on the sewer line yet. f. October 7, 1992: Deemer reported that Bronder's water line on West Liberty Road is now complete except for the final connection. Nothing has been submitted as yet on the sewer line for that property. g. January 6, 1993: Deemer reported that Bronder is working on an agreement with McKnight for the sewer line to Bronder's property. He reported that McKnight is ready to start Phase II of his plan. 97. By way of letter dated August 5, 1992, William P. Deemer advised the Authority that the approval from DER for the Act 537 Plan Revision filed for the Davcol, Inc. proposed sewer line extension was received. a. He further advised that the water line extension plan has been prepared for the owners, and he has checked them for compliance with the requirements of the "Comprehensive Plan ", and certifies that all requirements have been met. b. He recommended that the Authority authorize the execution Deemer, 92- 067 -C2 Page 44 of the required agreement permitting the construction of the extension subject to the provision of the Authority of the necessary right -of -way, and further their complying with the Comprehensive Plan. c. He advised that the Authority is applying for a PennDOT Highway Occupancy Permit. The permit is being applied for in the Authority's name since the Authority will ultimately maintain the line. 98. A Transmittal letter and Resolution for a Plan Revision for New Land Development, and a Sewage Facility's Planning Module were submitted on behalf of Davcol, Inc. and others. The documents were prepared by William P. Deemer, and are signed and sealed by him. a. The named applicant on these sewage facilities planning module is Florence Bronder. b. The Chairman of the Authority, Thomas John, signed the Sewage Planning Module on April 1, 1992. c. A notarized statement accompanies the documents, and is signed by Laura Andrusis, Executive Secretary for the Authority, and Kenneth Bronder. The statement was notarized on September 11 and September 16, 1992, respectively. 99. Pursuant to the requirements" of the Comprehensive Plan, an Administrative and Professional Services Agreement was prepared between the Authority and Davcol, Inc. on September 8, 1992. a. Davcol agreed to comply by the requirements of the Comprehensive Plan for the Expansion and Extension of the Slippery Rock Municipal" Authority's Water and Sewer System. b. The agreement also provided in part that the developer agrees to pay reasonably incurred costs of the Authority for Administrative, engineering, and legal fees necessary to proceed with the implementation of the Plan. c. The agreement is signed by Catherine M. Bronder, Secretary, and Kenneth L. Bronder, President. d. On behalf of the Authority, the Agreement is signed by Laura Andrusis, Executive Secretary. 100. No additional documents or invoices were available from the Deemer, 92- 067 -C2 Page 45 Authority regarding this project. The following findings relate to the sewer line extension project to the LeBanno property. project that 101. The LeBanno sewer line extension project was a p ro j was being proposed by Philip LeBanno. that 102. Records of the Slippery Rock Municipal Authority indicat William the LeBanno Sewer Line Extension Plan wasp p a P. Deemer & Associates. plan was prepared by William P. Deemer & a. The original P Associates on July 8, 1991. b. The plan and profile of the prop osed sewer sanitary ary s s by extension for the LeBanno property was p pared William P. Deemer & Associates n signed and sealed by William P. Deemer, and is undated. to the LeBanno property sewer line extension, 103. I n relation minutes of the Slippery Rock Municipal Authority reflect the following. a . April 3, 1991: Bud LeBanno requested permission to extend the sewer line P his property on H a stated that he intends totduplex the the Phase ase I area. He st property, and that the township will only permit the e system. duplex if he can tap into the public LeBanno was informed that i e the ComprehensivemPlanwfor would have to the procedures set forth extension. Deemer said he would also ha o comply with the provisions of Act 537, if that property was not included in the 537 Plan for College to a rd e o w ns Apartments. There was a motion by LeBanno to proceed with the planning of the sewer line extension. The motion was seconded and approved. b. May 1, 1991: Deemer reported the LeBanno property on Ha e not been included in the 537 Planning to Gardens Apartments�es LeBanno hwould ahnew shorteryform himself. He also reported there which should take less for minor 537 revisions (3a), review time by DER. c. September 4, 1991: Deemer, 92- 067 -C2 Page 46 Deemer reported that he has completed the Feasibility Study for the request for an extension of sewer by Bud LeBanno on Harmony Road, and recommended the Authority enter into a formal agreement with LeBanno to extend the sewer line as requested. There was a motion to enter into an agreement with LeBanno. The motion was seconded and approved. A motion was then made to authorize the proper officials to execute the agreement once it is prepared by the solicitor. The motion was seconded and approved. The project was never completed. 104. On April 4, 1989, Slippery Rock Borough adopted a new ordinance authorizing the installation and operation of alternative sewer systems in Slippery Rock, subject to DER regulations and the approval of the Slippery Rock Borough Engineer. The following requirements apply: a. The applicant shall submit preliminary plans and reports to the borough for general review and recommendations; and then prepare and submit applications, final plans, necessary permits and reports for approval. b. - An engineer's report setting forth a full description of the proposed system and setting forth the basis for the design shall be submitted. c. The cost of all engineering, permit fees, and construction shall be paid by the applicant. 105. In December, 1992, Authority Solicitor, Richard McCandless, issued an Opinion regarding the Authority Engineer reviewing, inspecting and certifying sewer and water extension plans and installations which he prepared for private developers while being retained as the Authority Engineer. a. Subsequent to this Opinion, the Authority directed Deemer to choose whether he wished to represent the Authority or the private developer. b. The Authority also advised Deemer that on all projects which were currently in some phase of planning, installation or inspection, which Deemer was employed by the private developer, the Authority would hire an outside engineering firm to perform the reviewing, inspection, and certification on behalf of the Authority. c. The Authority chose the firm Aqua Terra, Inc., Consulting Engineers, William Rosenbaum, P.E., Principal. 106. Richard McCandless, solicitor for the Slippery Rock Municipal Deemer, 92- 067 -C2 Page 47 Authority, issued two opinions regarding the Authority Engineer's representation of private clients before the board on water and sewer line extension projects. a. January 9, 1991: The Opinion was in regard to whether an applicant for Extension Service is required to employ the services of the engineer for the Authority. McCandless advised that there was no legal requirement that the applicant must employ the Authority's engineer to do all of the work required under the Comprehensive Plan. However, the Authority had a right to see that all work completed by the applicant had been approved by the Authority's engineer, so that lines are installed properly and in accordance with all legal requirements of the Authority. b. December 4, 1992: The Opinion was in regard to whether the engineer's representation of private clients before the Authority was a conflict of interest. McCandless advised that the engineer for the Authority should not perform work for a developer who intended to extend sewage or water line with monies out of the developer's pocket, and subsequently to be turned over to the Authority. The engineer should disqualify himself for any proceeding in which he has a personal or pecuniary interest that is immediate or direct. The engineer should disqualify himself in regard to any approval or disapproval of lines when they are certified to the Authority to take over said lines. McCandless further recommended that the Authority employ an independent consulting engineer to review all projects in which Deemer acted as the private engineer for the client. 107. During the December 2, 1992, Slippery Rock Municipal Authority meeting, Laura Andrusis, Executive Secretary, was instructed to contact the solicitor for advice on the certification of other projects, where Deemer was the engineer for the developer, and how it should be handled. a. The advice was requested after Deemer reported to the Board on the Basta /Messer Sewer Extension, a project on which he was the engineer for the private client. b. Deemer had inspected the lines, certified that they were installed to the Authority's requirements; and recommended that the Authority take ownership of the Deemer, 92- 067 -C2 Page 48 line. 108. Deemer no longer reviews, inspects or certifies his own work to the Authority for developments where he has acted as the engineer for the private client. 109. William P. Deemer & Associates acted as general contracting engineer on several of the water and sewer line extension projects listed in finding #14. a. Surveying work was subcontracted to Lucas Engineering & Associates. b. Lucas Engineering was the general contracting engineer on the remaining projects listed in finding #14. c. Lucas Engineering subcontracted work on these projects to William P. Deemer & Associates. 110. As a general practice, Deemer did not mark -up his invoices to profit on the subcontracting work to Lucas Engineering & Associates. a. He has no financial interest in Lucas Engineering & Associates. b. Lucas Engineering & Associates rent space in a building that Deemer owns. 111. William P. Deemer & Associates submitted costs for work performed for the private client and the Authority on the same invoice. a. William P. Deemer & Associates submitted invoices for engineering services for the private client and the Authority directly to the private client. b. The Authority now invoices the private client for engineering services. 112. William P. Deemer & Associates performed engineering services for private clients listed in Finding #14 that was unrelated to the water and /or sewer line extension. a. This included plot layout; road design; etc. 113. All engineering work performed on water and sewer line extensions by William P. Deemer & Associates was done on behalf of the Authority as per the requirements of the Comprehensive Plan. (See Finding 12 a, b, c). Deemer, 92- 067 -C2 Page 49 114. Deemer provided the following information: a. The procedures and adopted policies for Slippery Rock Borough and Municipal Authority were in effect prior to his appointment as municipal engineer. b. All facilities, that were to be owned or operated by the Borough /Authority or that were constructed by agreement with others, were designed under the direction or request of the Borough /Authority. c. As to three properties purchased by the Allegheny Valley School, the approval was given by the Borough /Authority as per existing procedures for plan development and construction (1) The Authority directed the solicitor to prepare the "Comprehensive Plan for the Expansion and Extension of the Slippery Rock Municipal Authority's Water System" as to which Deemer had technical input as Authority Engineer. (a) The plan was adopted October 2, 1985. (b) The Borough /Authority agreed in principle to a similar plan for extending sewer service which was not developed at that time. (2) A Comprehensive plan for sewer extension was later developed after the application by G.L. McKnight, Inc., a developer as to Applewood Meadows. d. Deemer admits designing water and /or sewer extensions for all projects listed in Finding 14. e. As to private clients, Deemer never worked with those people before they approached the Authority /Borough for service. (1) The referrals to him were made by the Authority /Borough or staff. (2) Generally, the work done was limited to what was required for sewer /water line construction. (a) The Comprehensive plan required that such work be done by the Authority /Borough Engineer. f. The developers chose Deemer to coordinate the engineering aspect of their projects to lessen the chance of duplication. Deemer, 92- 067 -C2 Page 50 Deemer was paid a standard hourly fee for developing the water and sewer facilities for the developers. h. Any person wanting water /sewer service had to comply with the Comprehensive Plan but could retain the engineering company of his choice. g. i. Several shortfalls in the original Comprehensive Plan have been remedied. (1) Developers now must pay for solicitor /engineering fees directly to the Authority rather than to the solicitor/engineer. (2) The new plan allows other engineers to design water /sewer service extensions which must be approved by the Authority Engineer. (a) When the Authority Engineer provides service to a developer, the Authority will appoint a substitute engineer to approve, inspect, test and certify the facilities. Deemer offered explanation as to certain Findings noting generally that there was a lack of intent on his part as to any non - compliance with the prior or current Comprehensive Plan. (1) It is asserted by Deemer that he would not use public office to benefit a developer. (2) There has been steady development over the past 20 years which has cost the public nothing. 115. Deemer provided the following supplemental information: a. Deemer acted pursuant to standard operating procedure as per the Comprehensive plan for the expansion /extension of the Slippery Rock Municipal Authority Water /Sewer System adopted by the Authority, Borough and Township upon the advice of the respective solicitors with approvals by individual agreement with applicants /developers. b. Section 9(g) of the Ethics Law deals with the good faith reliance on a written non - confidential opinion of a solicitor publicly stated at an open meeting and recorded in the official minutes. c. The comprehensive plans were prepared by the solicitor for the Slippery Rock Municipal Authority and adopted by the Authority and municipalities at public meetings Deemer, 92- 067 -C2 Page 51 whereby Deemer was required to perform the design specifications and layouts and certify to the suitability of the lines for ownership by the Slippery Rock Municipal Authority. d. After the comprehensive plan was amended on May 3, 1993, the policy changed and so did the practice of Deemer. III. DISCUSSION: As the engineer for Slippery Rock Borough and Municipal Authority (Authority), William P. Deemer (Deemer) is a public employee 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 issue before us is whether Deemer as the Slippery Rock Municipal Authority Engineer violated Section 3(a) of Act 9 of 1989 relative to the allegation that he approved as Authority Engineer development plans and sewer or water modules which he prepared for private clients on a fee basis. Deemer served as the appointed engineer for Slippery Rock Borough and Slippery Rock Municipal Authority from 1973 through September 1990. Deemer continues to serve as the appointed engineer for the Authority. In a private capacity Deemer is a registered professional engineer who owns William P. Deemer and Associates, a consulting engineering firm. Deemer, 92- 067 -C2 Page 52 In 1985, Slippery Rock Township, Borough and Municipal Authority entered into an agreement known as "The Comprehensive Plan for the Expansion and Extension of the Slippery Rock Municipal Authority's Water System" whereby developers would have to enter into an agreement with the Authority to comply with all required specifications and to reimburse the Authority for expenses relative to the inspection and approval of their water /sewer extension projects. The plan required services to be performed by the Authority Engineer in relation to the application for extensions of the Authority systems. In particular, the applications had to be reviewed by the Authority Engineer who would then prepare a preliminary design and layout as to the feasibility of the projects. In addition, the installation had to be done in accordance with design specifications and layouts of the Authority Engineer. Deemer as Municipal Engineer reviewed, inspected, or approved plans submitted by individuals relative to projects which he or Deemer and Associates was involved in a private capacity and for which compensation was paid. Regarding Deemer's involvement as a Municipal Engineer as to matters on which he provided engineering services in a private capacity for clients, the fact findings may be summarized relative to the following eight specific projects: Allegheny Valley Schools, Applewood Meadows - Gary McKnight, Poplar Forest - Nicholas Borgfeldt, Arrowhead Place Walter Fowler, College Garden Apartments - JGame Properties, LeBanno, Davcol Inc. /Bronder and Basta /Messer As to the first project consisting of the Allegheny Valley Schools (School) water line extension, the School opened a group home which necessitated the need for public water service. After water line extensions were prepared by Deemer and Associates and submitted to the Authority for approval, the minutes reflect the following action taken by Deemer as Municipal Engineer: on March 7, 1984, ,Deemer presented the request from the School which was followed by a motion of approval as to the construction; and on May 1, 1985, during the review of the proposed agreement between the municipalities and the School, Deemer advised that the agreement included everything that would be incorporated for providing water service followed by an approval motion. Deemer and Associates was paid by the'School for services in connection with the project and was used because the School believed that the project would go quicker and smoother by utilizing Deemer. The second project involved the Applewood Meadows water and sewer line extension project which was proposed by Gary McKnight of G.L. McKnight, . Inc. The plans were privately prepared and submitted by Deemer and Associates for submission to the Authority for approval. The following reflects the action of Deemer as to Deemer, 92- 067 -C2 Page 53 the Applewood Meadows plans as per the Authority minutes: on September 3, 1986, Deemer showed the Authority a map with the proposed housing development as well as alternative plans for the placement of the sewer line; on November 5, 1986 Deemer was directed to send a letter to the Slippery Rock School Board explaining the joining of the sewer line at a manhole near the school; on January 7, 1987, Deemer reported that the Township had approved the plan for extending the sewer line and that the school board was considering the tap in of the sewer line into their manhole; on April 1, 1987, a motion was approved to authorize the Engineer to prepare an agreement for the water and sewer lines and to make application for permits to DER and PennDot; on May 6, 1987, Deemer reported that the revised plan module for Applewood Meadows had been submitted to DER for approval; on October 7, 1987, Deemer reported that the sewers were installed in Applewood Meadows and the pump station was on site; on April 7, 1993 Deemer reported that McKnight planned to start installing sewer lines in Phase II which would soon occur with some changes due to four additional lots which Deemer said would not affect the water and sewer lines nor require a revision; and on June 2, 1993, Deemer reported that McKnight was considering using a private right of way in lieu of a highway right of way due to PennDot restrictions. Deemer by letter dated November 5, 1986 advised the school board as to the request for the extension of the sewer line relative to the McKnight development wherein Deemer detailed alternatives and advised the school district of the advantages of an additional tax base. The planning module for the Applewood Meadows development was prepared by Deemer as consulting Engineer and then submitted to the Township where it was signed and sealed by Deemer on March 8, 1987. In response to a letter from DER requesting additional information, Deemer wrote a letter dated April 29, 1987 explaining his client's desire to start construction and requested that DER promptly issue permits. Deemer notified the Township on April 30, 1987 that the Authority intended to apply to DER for a permit to construct the sewers to service Applewood Meadows. An agreement was entered into on May 31, 1987 by all parties which contained a proviso that all work would have to be done in compliance with the design and plan as approved by the Authority Engineer Deemer, subject to his supervision, control and inspection. When the Authority submitted an application to DER for the sewer extension for the Applewood Meadow subdivision, the application was signed and sealed by Deemer. Thereafter, by letter of July 2, 1987, Deemer provided DER with additional information relative to the permit for the Applewood Meadow subdivision. When a maintenance bond from McKnight development had been received, Deemer recommended that the Authority accept the bond subject to the solicitor's approval. Deemer also recommended to the Authority that it accept the water and sewer line along with the pumping station. Deemer also Deemer, 92- 067 -C2 Page 54 prepared and submitted an application for a highway occupancy permit to PennDot on behalf of the Authority for the water and sewer lines being installed in the McKnight development. Deemer inspected the installation of the water and sewer lines in relation to the Applewood Meadows sewer and water line extension project and received payment directly from McKnight for all engineering services provided for that development. The third project wherein Deemer was involved both privately and publicly was the Arrowhead Place development. The Arrowhead Place was a development proposed by Walter Fowler who was an Authority Board Member. The Arrowhead Place sewer and water line extension plans were prepared by Deemer and Associates and submitted to the Authority. Slippery Rock Borough Council minutes reflect the following involvement by Deemer as to the Arrowhead Place sewer and water line extension: on October 3, 1989, in response to an inquiry as to why Fowler had not developed any plans for the water and sewer line extensions to his property, Deemer participated in the discussions and explained that Fowler did not want to spend money on the project if Council was not going to approve it; on October 17, 1989, Deemer asked Council if it would approve Fowier's plan for an extension if there were compliance with the comprehensive plan which was followed by an approval vote subject to the requirement that Fowler meet the provisions of the comprehensive plan; on November 30, 1989, Deemer explained the first phase of the plan to the Borough as well as the positive revenue impact for the Borough; on April 4, 1990, Deemer submitted a report regarding the application for the water /sewer extension of Arrowhead Estates to the Authority and advised that the plans were turned over to him for his review and report to the Authority as to the feasibility of the project from an economio and engineering point of view; on the same date, Deemer advised that the development would not tax the existing systems and recommended that approval be given by the Authority. After Deemer advised that Fowler had petitioned the Township which approved the application, Deemer stated that the project was properly designed and that there was adequate capacity in the existing system to serve the area covered by the proposal. The minutes of the Authority reflect the following actions by Deemer relative to the Arrowhead Place development: on March 7, 1990 Deemer presented Fowler's application; on April 4, 1990 Deemer explained the routing of the water and sewer system and the need to apply to DER for a pump station followed by a successful motion to sign the DER application; on May 2, 1990, Deemer presented the application for Arrowhead Estates and explained the history; and on July 11, 1990 Deemer reported DER's approval of Arrowhead Estates. A planning module for development report e s by u Deemer wherein he Deemer on behalf of Fowler Deemer, 92- 067 -C2 Page 55 determined that the pump station had the capacity to receive the sewage and that the water lines would assist the Authority in looping dead end distribution mains. Following DER approval, Fowler on October 30, 1990, entered into an agreement with the Authority and Township as per the comprehensive plan. On December 5, 1990 Deemer issued a letter to the Authority regarding the Arrowhead plan of Fowler wherein Deemer certified that the water line had been completed and inspected by Deemer who also approved an irrevocable letter of credit issued by a bank on behalf of Fowler. In addition, Deemer acknowledged an executed bill of sale for the water line, advised and certified the itemized cost of the project, certified compliance as to all necessary items and recommended that the Authority accept the facilities as part of the system. Deemer and Associates did receive fees from Fowler relative to the engineering services for the Arrowhead Place development. The fourth area of involvement by Deemer concerned the Poplar Forest water and service line extension project (Poplar Plan) proposed by Nicholas Borgfeldt. The Authority records as to the Poplar Plan reflect that the original plans did not include the seal or signature of Deemer but revisions to those plans were prepared by Deemer and Associates. The Authority minutes reflect the following involvement of Deemer as to the Poplar Plan: on April 5, 1989, Deemer reported that Borgfeldt was ready to install the water line through his property and Deemer recommended a ten inch diameter line for the purpose; on August 2, 1989, Deemer stated that seven hundred feet of the sewer line had been installed for the Borgfeldt project; on November 1, 1989, Deemer noted that the Borgfeldt plan had not been returned by DER and that Borgfeldt had no sewage permit; on December 6, 1989, Deemer reported that the Borgfeldt plan had been returned from Meadeville to New Castle for more processing; on January 3, 1990 Deemer stated that he talked to DER and anticipated DER's action in a few weeks; on February 7, 1990, Deemer reported that Borgfeldt's plan had been approved; on March 7, 1990, Deemer stated that information from DER reflected that there was no need to file a permit since no pumping station was needed; on July 10, 1991 Deemer reported that the water lines should be ready for the Authority's acceptance; on August 7, 1991, Deemer noted that the water and sewer lines in the final two phases of the Poplar Plan were completed which was followed by an approval motion to accept the lines; and on January 8, 1992, Supervisor Dickey reported that he and Deemer were planning to do a size evaluation for each lot in the Poplar Plan. By letter dated July 17, 1989 to the Planning Commission, Deemer, as Authority Engineer, submitted copies of planning modules relative to the Poplar Plan project noting that the planning modules had been submitted to DER. Thereafter, the Director of the Planning Commission on August 17, 1989 advised that approval had Deemer, 92- 067 -C2 Page 56 been granted. The planning module which was submitted by Deemer to DER for the Poplar Plan subdivision was under the signature and seal of Deemer. In addition, the transmittal letter and resolution for the plan revision for the Poplar td r d d t o t e lnclude include Deemer, even though the copy submitted signature or seal of Deemer as an Engineer. Deemer by letter dated August 5, 1991 provided the Authority with the certification as to the installation of the water /sewer lines in the Poplar Plan development claiming that he had inspected the line installation, lan and that the water /sewer lines complied with t the facil ties conrehensive that he recommended the Authority accept by Borgfeldt as to the Poplar Plan development. After Borough Council considered the Poplar Plan project on January 2, 1990, Deemer offered his services to Borgfeldt and advised that he could help with the sewer water line extension as well as some of the work on the master plan. When Borgfeldt experienced problems in 1991 as to the third phase of his project with DER regulations, Borgfeldt retained a new engineer Norman Stroud who is also the Borough fter Engineer; at time period. no longer used on the Poplar Forest Plan The fifth water and sewer line extension_ project in which Deemer was involved both publicly and privately was the College Garden Apartments which is also known as the Kiester Road Apartments (Apartments). The Apartments project was proposed by JGame Properties which utilized line extensions. Deemer and Associates to prepare plans for the water/sewer Minutes of the Authority reflect the following involvement of Deemer as to the Apartments water /sewer line extension: on April 5, 1989, after the operator of the apartment complex expressed interest in obtaining water /sewer service, Deemer devised 3 pl1n8tto extend service together with a cost estimate; on May Deemer did work on an engineering feasibility design as to the water /sewer extension and showed the Authority a map to effectuate the plan; on June 7,1989, the Authority Chairman suggested that Deemer should present the proposal by the Apartments to have the tap fees reduced to Council; on September 6, 1989, Deemer advised the Authority that the School District was receptive to the request for a right -of -way for a water line relative to the Apartments project; on October 4, 1989, after Deemer offered his opinion as to a request for a right -of -way, a motion carried to send letters to the School District seeking the necessary urig had Deemer as to t he Apartments project; on January 3, 1990, engineering design for the water line after Deemer reported that Quinlan was still interested in obtaining water /sewer service; on March 7, 1990, Deemer presented Quinlan's application for an extension of water /sewer lines to the Apartments project; on April 4, 1990, Deemer passed out copies of his engineering feasibility report and offered explanation as to the Apartments project; on May Deemer, 92- 067 -C2 Page 57 2, 1990, Deemer presented the application for water /sewer service as to the Apartments project which was followed by a motion of approval to grant the sewer /water extension to the Apartments project; on August 1, 1990, Deemer advised of the status of the right -of -way acquisition for the Apartments project; on February 6, 1991, Deemer reported on the status of the contracts as to the Apartments project; on March 6, 1991, Deemer reported on the work progress at the Apartment projects as to the sewer line connection; and on May 1, 1991, Deemer reported that the water and sewer were completely on line as to the Apartments project. As to the Apartments project plan for sewer /water line extension which was submitted to Slippery Rock Township, the plans and revisions were prepared by Deemer and Associates with both plans being signed and sealed by Deemer. By letter of April 18, 1986 Deemer advised Quinlan regarding his inquiry about obtaining water /sewer service for the Apartments project. The sewage plan revision module which was submitted by the Township to DER on January 4, 1988 in regard to the sewer /water line extension for the Apartments project was prepared by Deemer. Thereafter, on November 14, 1989, Deemer submitted a progress report to Quinlan. On May 2, 1989, when Quinlan advised the Borough Council President of his intention to proceed as to the installation of water /sewer lines as to the Apartments project, Quinlan discussed the most economical way for installation with Deemer as Borough Engineer. In addition, Quinlan requested a reduced tap in charge for his unit in a proposal as to which Deemer determined the cost. When Deemer advised Quinlan as to the best way to proceed as to the water /sewer service, Deemer estimated the project cost and included a feasibility study as well as the designs, drawings, permits, fees, agreements and inspections. The total cost included payments to Deemer for such services. When Deemer presented the requests for the right of way to the School Board for water /sewer extension of the Apartments project, Deemer stated that he represented the Authority Council as Engineer. Based upon Deemer's proposals, the Authority Secretary wrote to the School District that the project was within the guidelines of the comprehensive plan. Following approval from DER, the formal agreement was entered as to the extension of the water /sewer lines for the Apartments project with the developer assuming all costs relative to the review, inspection and approval of the project. Approximately two weeks after the approval, Deemer prepared a Specification for Construction report as to the sewer /water lines for the Apartments project which was signed and sealed by Deemer. On February 18, 1990, Deemer explained to Quinlan that the contractor's statement, that the engineering was completed and that Deemer, 92- 067 -C2 Page 58 permits were obtained, was "misleading ". Thereafter, on August 8, 1991, Deemer advised Quinlan that the construction of the project was in the completion phase but other items had to be co p an t as Deemer requested a meeting. lf of Authority which plan ded the prepared by Deemer on behalf requisite right -of -way. The plans were prepared utilizing the company heading of Deemer and Associates although the signature and seal of Deemer did not appear on. the plans. Subsequently Deemer sent Quinlan the right -of -way deed of dedication and bill of sale. Deemer recommended approximately one week later that the Authority ccept the water /sewer lines as to the Apartments project. Contained in Deemer's recommendation under his signature and seal were statements: that he inspected the line installation, that the Authority accept the certificate of deposit which would act as a guarantee of line maintenance, that he certified the proportionate cost of the lines and that he delineated the project cost. Deemer and Associates was paid for Ma y hese lggluinlan advised Deemer A partments project although on M y , that one invoice suit wasubeing not consides d due to the additional costs that a law suit incurred as a result of design error. The sixth project in which Deemer was ... involved both as a public employee and .privately as an engineer was the Basta /Messer water /sewer line extension project (Extension project) which involved a short line - extension to an individual property, not a development. The extension plan was prepared by Deemer and Associates. The minutes the Authority reflect the following activities of Deemer as to' the extension project: on May 6, 1992, Deemer advised that according to DER, a plan will not be needed for the extension project; on June 3, 1992, Deemer presented plans for the sewer line extension followed by an approval motion to enter into the agreement;' on December 2, 1992, Deemer advised that the extension was complete, that he inspected the line and that he certified compliance as to construction and testing standards which was followed by his recommendation that the Authority take ownership subject to the posting of the - maintenance bond and bill of sale. At that same meeting, the Executive Secretary was instructed to contact the solicitor for advice as to how the certification of other projects should be handled where Deemer was the engineer for developers. By letter dated June 3, 1992, Deemer reported to the Authority that he contacted DER which advised that a plan revision was unnecessary, that he reviewed the plans for the . owners and checked the Comprehensive Plan requirements and the agreement, that he certified that all requirements had been met and recommended that the agreement be authorized because he determined that the proposal was feasible from an economic and engineering standpoint. After Deemer, 92- 067 -C2 Page 59 the agreement was entered into on June 3, 1992, a letter was written to Basta /Messer from the Authority Executive Secretary advising of the outstanding costs of certain engineering fees for the project. By letter dated December 1, 1992, Deemer certified to the Authority that he inspected the line extension, tested the line as to construction standards, prepared drawings and recommended to the Authority that it take ownership of the line. On that same date Deemer provided the Authority with an invoice for the work performed relative to the project extension. Lastly, on December 2, 1992, Deemer reported to the Authority Board that he inspected the line which was complete according to construction and testing standards for the Authority. After Deemer recommended that the Authority take ownership of the line, subject to the posting of a maintenance bond, the Board accepted ownership. At that time, one of the Board Members recommended that an outside engineer inspect and certify the line since Deemer was also the engineer for Basta /Messer. The seventh project which Deemer was involved concerned a sewer /water line project by Davcol Inc. submitted by Don and Florence Bronder (Davcol). The plans were drawn, signed and sealed by Deemer on August 5, 1992. The Authority minutes reflect the following involvement by Deemer: on December 4, 1985, the Borough received a check from Davcol for engineering and legal fees; on January 8, 1986, Davcol's check was transferred to the Borough since Davcol had paid Deemer; on August 5, 1992, Deemer presented the plan for the extension noting that the plans were in compliance with the requirements of the comprehensive plan and the proposal was sound from an engineering aspect and economic standpoint followed by an approval motion for authorization of the execution of agreement; on the same date, Deemer further reported that a highway occupancy permit had been sent for the project and that DER's approval for the extension had been received and that the design would be prepared once the owner determined the most beneficial way to route the lines; on September 10,1992, Deemer reported that the water line extension agreement was ready to be signed and that the permit had been obtained from PennDOT; on October 7, 1992, Deemer reported that the water line was complete except for a final connection; and on January 6, 1993, Deemer reported that Bronder was working on the agreement for the line extension. In Deemer's letter of August 5, 1992 to the Authority regarding Davcol, he advised that the water line extension had been prepared by the owners and that he checked for compliance with the requirements of the comprehensive plan. Deemer recommended that the Authority authorize the execution of the agreement to permit construction of the extension and further advised the Authority to apply for the PennDOT Highway Occupancy Permit. The transmittal Deemer, 92- 067 -C2 Page 60 - letter and resolution for the by Deemer under hi.s mo were submitted for D Y ive seal. The agreement, as Davcol the wo�ldu agree comply p wt h c all plan, provided that requirements of the plan and that the developer would pay the reasonable cost to the Authority for various fees including engineering fees. The eighth matter of Deemer's involvement involved the LeBanno red ter the ex reflect i the 1991, Le e B l annorequest d the extend the sewer on April 3, 199, line at which time Deemer stated that there must be compliance with provisions of Act 537; on May 1, 1991, Deemer reported that since or e the LeBanno property was not within the planning module f f ; t himse College Garden Apartments, D emern ed have that completed a on September 4, 1991, feasibility study for Lebanno and recommended that the Authority enter into a formal agreement with Lebanno for the extension which was followed by a motion of approval to enter into an agreement. The project however was never Completed. Having summarized the eight different projects in which Deemer was dually involved in both a public and capacity, opted e now note that on April 4, 1989 Slippery Rock Borough ordinance relative to the installation of sewer systems which required in part that the cost of all engineering fees be paid by applicants. On December 1992, the Authority Solicitor issued an opinion relative to -the Authority's Engineer as to the review, inspection and certification of sewer /water line extension plans and installations in cases where he provided engineering services to developers. Thereafter, the Authority directed d dev ch between representation of the Authority �r private was further advised that all projects in progress where an Deemer had been employed in a private e Authority l to to the ereview, outside engineering firm by inspection and certification work on behalf of the Authority. The Authority Solicitor in fact issued two Opinions regarding the Authority Engineer's representation of clients as 991 Opinion, water /sewer line extension projects. In a January 9, 1 the solicitor noted there was no legal requirement that the applicant must employ Authority's Engineer 'to' do the work under see the comprehensive plan and that the Authority had the oved right b to the that all work completed by an applicant was approved Y Authority Engineer so that the lines were installed properly and in accordance with legal requirements. In a December 4, 1992 Opinion, the solicitor advised that the Authority Engineer should not perform work for developers who intended to extend water /sewage lines, that the engineer should disqualify himself from any Deemer, 92- 067 -C2 Page 61 proceedings in which he has a personal /pecuniary interest and that the engineer should disqualify himself in regard to any approval /disapproval of lines when there is a certification to the Authority to take over said lines. Lastly, the solicitor recommended that the Authority employ an independent consulting engineer to review all projects in which Deemer acted as a private engineer for clients. During a December 2, 1992 Authority meeting, the Executive Secretary was instructed to contact the solicitor for advice on the certification of other projects where Deemer was the engineer for the developer after Deemer reported to the Board on the Besta /Messer sewer extension project in which he was the engineer for those individuals as his private clients. As noted above, Deemer inspected the line, certified as to the installation requirements and recommended that the Authority take ownership of the line. After the above restrictions were imposed upon Deemer he desisted in reviewing, inspecting or certifying his own work to the Authority for developers for whom he acted as a private engineer. The engineering work performed on water /sewer line extensions by Deemer and Associates on behalf of the Authority continues as per the requirements of the comprehensive plan. The Authority now invoices private clients directly for engineering services. As a matter of explanation as to the above, Deemer admits that he did work for private clients which he subsequently reviewed as Municipal Engineer; however, Deemer asserts that such action was required by the comprehensive plan and that he was required to perform the design specification layouts and certify as to the suitability of the lines as per that comprehensive plan. In applying the provisions of Section 3(a) of Act 9 of 1989 to the instant matter, we find that Deemer, as a Slippery Rock Municipal Authority Engineer, violated Section 3(a) of Act 9 of 1989 when he approved development plans or modules which he designed or performed services for private clients. The use of authority of office by Deemer consisted of all of the actions, reviews, recommendations, inspections, certifications and approvals that he made as Municipal Engineer as to plans or modules which he prepared or was involved in as a private engineer for clients. As to the various sewer /water line extension projects that are referenced above, it is not known whether Deemer was taking any given action as Municipal Engineer or as a private engineer on behalf of a paying client. If anyone had asked or if Deemer had a modicum of sense to question his own conduct, no answer would probably have been forthcoming as to whether in any given instance Deemer was acting as the Municipal Engineer or private engineer. To say the least, Deemer was insensitive or to say the most, Deemer Deemer, 92- 067 -C2 Page 62 was callously materialistic as to his action at any given point of time relative to representing the public interest as Municipal Engineer and representing his client's interests as a private engineer. What is certain to this-Commission is that in all these instances Deemer had his own financial interest at heart when he operated from both ends of the table vis -a -vis the public interest Te and private clients' onst toted to . usehof authority of office. took in all these cases c See Juliante, Order, 809. The use of authority of office by Deemer resulted in a private pecuniary benefit consisting of the private fees that he received as well as the compensation that he received as a Municipal Engineer when he took such action as to the sewer /water line extension projects. The pecuniary benefit is private in that no authorization exists in law for the Municipal Engineer to be paid for taking official action as to his own private work. Lastly, the private pecuniary benefit inured to Deemer individually or to Deemer and Associates which is a business with which Deemer is associated as that term is defined under Section 2 of Act 9 of 1989, 65 P.S. S402. Our analysis and commentary in Ferraro, Order 720, wherein we found that a municipal engineer violated Section 3(a) of Act 170 of 1978 when he reviewed /approved plans that he prepared for clients in as a private engineer, is equally applicable to the instant matter: 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. Ferraro at 64, 65. Deemer, 92- 067 -C2 Page 63 Deemer however argues that he was compelled or required by law to take such action as per the requirements of the comprehensive plan. Deemer's argument that he in effect had a Hobson's choice is superficial and false. To the contrary, Deemer as a private engineer could have simply refused to take work from persons as to whom he knew he would have to review or pass upon work as Municipal Engineer. Second, as Municipal Engineer, Deemer could have removed himself and requested the substitution of independent engineer for any cases that he performed work for private clients. Deemer did not do this. Instead Deemer readily sought to serve two masters, that is, the Authority and private clients. What Deemer accomplished by such action was to place himself in an absolute conflict between his public duty and trust and that of his private clients to his own financial betterment. Such practice of Deemer continued until the Authority came to the realization, backed up by opinions of the solicitor, that such actions of Deemer constituted conflicts of interest. Consistent with our holding in Ferraro, supra, and other cases involving municipal engineers, we find that Deemer did violate Section 3(a) of Act 9 of 1989 when he as Municipal Engineer took official actions as to development plans or modules on which he performed engineering services for private clients. IV. CONCLUSIONS OF LAW: 1. William P. Deemer as the Municipal Engineer for Slippery Rock Municipal Authority is a public employee subject to the provisions of Act 9 of 1989. 2. Deemer violated Section 3(a) of Act 9 of 1989 when he used the authority of office as Municipal Engineer, after the effective date of Act 9, to take official actions as to development plans or modules on which he performed engineering services for private clients which resulted in a private pecuniary benefit to himself or the business with which he was associated, Deemer and Associates. In Re: William P. Deemer : File Docket: 92- 067 -C2 Date Decided: 9/28/93 : Date Mailed: 10/07/93 ORDER NO. 905 1. William P. Deemer as the Municipal Engineer for Slippery Rock Municipal Authority violated Section 3(a) of Act 9 of 1989 when he used the authority of office as Municipal Engineer, after the effective date of Act 9, to take 'official actions as to development plans or modules on which he performed engineering services for private clients which resulted in a private pecuniary benefit to himself or the business with which he was associated, Deemer and Associates. BY THE COMMISSION, JAMES M. HOWLEY, CHAIR