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HomeMy WebLinkAbout905-R DeemerIn re: William P. Deemer STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 Before: James M. Howley, Chair Daneen E. Reese, Vice Chair Dennis C. Harrington Roy W. Wilt Austin M. Lee Allan M. Kluger Joseph W. Marshall, III The State Ethics Commission received a request for reconsideration on October 22, 1993, with respect to Order 905 issued on October 7, 1993. Pursuant to Section 21.29 of the Regulations of the Commission, the discretion of the State Ethics Commission to grant reconsideration is properly invoked as follows: §21.29. Finality; reconsideration. File Docket: 92- 067 -C2 Date Decided: December 7, 1993 Date Mailed: December 10, 1993 (b) Any party may ask the Commission to reconsider an order or opinion within 15 days of service of the order or opinion. The requestor shall present a detailed explanation setting forth the reason why the order or opinion should be reconsidered. (e) Reconsideration may be granted at the discretion of the Commission if: made. made. (1) A material error of law has been (2) A material error of fact has been (3) New facts or evidence are provided which would lead to reversal or modification of the order or opinion and if these could not be or were not discovered by the exercise of due diligence. 51 Pa. Code §21.29(b), (e). This adjudication of the Commission is hereby issued which sets forth the Discussion and Reconsideration Order. This Reconsideration Order is final and shall be made available as a public document on the fifth (5th) business day following the date of issuance. eemer, 92- 067 -C2 Page 2 ADJUDICATION DISCUSSION: William P. Deemer, hereinafter Deemer, has requested reconsideration of Deemer, Order No. 905, issued on October 7, 1993. In the foregoing Order, we determined that Deemer, as Slippery Rock Municipal Authorit Engineer, violated Section 3(a) of Act 9 of 1989 by taking official actions as to certain plans /modules of developers for whom he performed private engineering services. Deemer raises the following four arguments in support of his reconsideration request which we will address seriatim: the municipality required the engineer to design the plans, the Comprehensive Plan directed the developer to pay the engineering fees, the persons requiring the services were referred to Deemer by municipal officials /employees and the Comprehensive Plan did not provide for a private design /public review process. As to the first argument, Deemer asserts that the municipal engineer has always had to design all publicly or privately funded projects and that he did not approve the designs which were approved by the regulatory agencies. Since the Comprehensive Plan required water /sewer extension designs by the municipal engineer, Deemer argues that he never approved the plans for the construction which was between the developer and'the municipality and which was public in nature with him being in charge but "not making any approvals. Although Deemer did not give any formal approval since it was the responsibility of the municipality or government regulatory agency to make such decisions, it is clear from the record that Deemer was involved with clients /developers both publicly and privately in projects as to which he made reviews and recommendations for approvals and took other actions. We reject Deemer's first argument based upon our analysis in Order 905. In the second argument, Deemer contends that the Comprehensive Plan required the developer to pay for engineering designs and legal work. Deemer asserts that he was told it would be easier for him to "bill the developers directly for the work - -- [he] was doing in their behalf for the municipality." Deemer states that he continued that practice until it was changed by the new Comprehensive Plan. As to Deemer's second argument, we fail to see the materiality or relevancy of the routing of payment. The gravamen of the violation of Section 3(a) of Act 9 of 1989 by Deemer in Order 905 was based upon his dual public /private involvement with the developers /clients. Since the issue raised by Deemer is irrelevant or immaterial to our finding of a violation, we reject his second argument. Deemer 92- 067 -C2 Page 3 Deemer, in his third argument, asserts that the persons who came to him were referred by the municipal secretary, superintendents or boards, that the developers were never told that he (Deemer) had to do all the engineering work aside from the design of the water /sewer systems, that in some cases he was retained by these people for subdivision work including plan preparation and related development work and that there was no concern about future approvals since no approval was required under the Comprehensive Plan and since all supervision, inspection and testing was done by Deeu.ar as municipal engineer. On this issue, we determined in Order 905 that it was a violation for Deemer to have dual public /private involvement with developers /clients. Since the foregoing was the linchpin of the violation in this case, we expressly reject the argument. The fourth and final point of Deemer is that the Comprehensive Plan did not allow for him to design a system which he would have to approve; the fact that he did agree to do other work for these developers that required municipal approval was "inconsequential." Deemer concludes that he did not serve two masters on the theory that what he did in an official capacity was as per the Comprehensive Plan and what he did as other work for developers which was approved by the political subdivisions or regulatory agencies was as per the choice of the developers. We reject the cavalier conclusion that Deemer was not serving two masters. As we noted in Miller, Opinion 89 -024 on the issue of dual public /private involvement by a public employee as to third parties, . . . the Ethics Law would prohibit you from using the authority of your office to approve, recommend or play any role in the approval of permits or in relation to any township action involving a client, plan or project in which . . . [you or your business] is involved. Id. at 3, 4. Lastly, Deemer makes general assertions that he should not be faulted if the Comprehensive Plan, as prepared by the solicitor, was illegal and that he should not be made a "sacrificial lamb" because it was not his fault that he followed the procedures in the Plan. Both as to the above and the four main arguments of Deemer, nothing has been presented which suggests a material error of law, a material error of fact or new facts or evidence. In light of the foregoing, the request for reconsideration is denied. In re: William P. Deemer File Dockets 92- 067 -C2 : Date Decided: December 7. 1993 : Date Mailed: December 10, 1993 RECONSIDERATION ORDER NO. 905 -R 1. The request to reconsider Order 905, issued on October 7, 1993, is denied. BY THE COMMISSION, JAMES M. HOWLEY,