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HomeMy WebLinkAbout1020 SchmittIn Re: Dan Schmitt STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: 95- 007 -C2 Date Decided: 8/27/96 Date Mailed: 9/6/96 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Allan M. Kluger Rev. Joseph G. Quinn Boyd E. Wolff This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation of the Public Official and Employee Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 It sea., by the above - named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation. Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was filed and a hearing was waived. The record is complete. A consent agreement was submitted by the parties to the Commission for consideration which was subsequently approved. This adjudication of the State Ethics Commission will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date 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). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with Act 9 of 1989, 65 P.S. §408(h). Any person who violates confidentiality of the Ethics Law 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. §409(e). Confidentiality does not preclude discussing this case with an attorney at law. Schmitt, 95- 007 -C2 Page 2 I. ALLEGATION: That Dan Schmitt, as Engineer for Unity Township and Unity Township Planning Commission, Westmoreland County, violated Section 3(a) of the Ethics Law (Act 9 of 1989), when he used the authority of his office to obtain a private pecuniary benefit for himself and /or a business with which he was associated when he participated in the township's review, consideration, modification and /or approval of developer plans which were prepared by a engineering firm, by which he was employed and in which his brother had a financial interest. H. FINDINGS: 1. Gibson- Thomas Engineering Company, Inc. (GTE, a Pennsylvania Corporation), serves as the Appointed Engineer for Unity Township. a. GTE serves as Engineer for the Township Board of Supervisors and the Township Planning Commission. 2. Mark Gera is the President of Gibson - Thomas Engineering Company, Inc. a. The firm employs a staff of professional engineers and support personnel totaling thirty to fifty, depending on the season. b. Gibson Thomas Engineering Company, Inc., is located at 1004 Ligonier Street, Latrobe, Westmoreland County, PA 15650. c. Gera and Edward Schmitt hold the total financial interests in the company. d. Edward Schmitt is the brother of Daniel Schmitt. 3. Daniel Schmitt is a duly licensed Professional Engineer and employed by GTE. a. Schmitt began employment with GTE as a Professional Engineer in 1989. 4. From March, 1989, through January, 1996, Daniel Schmitt represented GTE during the Unity Township Board of Supervisor's meetings, Planning Commission meetings, and other township related meetings and acted as the official township engineer. a. Mark Gera has also attended several meetings as a representative of GTE. 5. The minutes of the Reorganization meetings of the Unity Township Board of Supervisors for each year beginning in 1989, confirm the appointment of GTE as Township Engineer. a. Minutes of meetings make reference to the signing of an agreement between the township and GTE. b. The agreements were to define the duties of both parties relating to engineering services provided to the township. c. The agreement also set the fee's to be paid to GTE. Schmitt, 95- 007 -C2 Page 3 d. Although the minutes so reflect the agreement, no actual agreements were ever signed prior to 1996. 6. In the course of GTE's service as the Unity Township Engineer, a representative for the engineering firm has been assigned to attend the various Township Supervisor and Planning Commission meetings. 7. The agreements between the Unity Township and GTE were not executed as stipulated in the Reorganization meeting minutes of the Board of Supervisors, because Mark Gera of GTE disagreed with some of the proposed language in the agreements. 8. GTE was compensated by Unity Township by a monthly retainer and hourly rates for engineer, engineer's support, inspections, drafting and other assistance. 9. The Reorganization minutes of the Unity Township Board of Supervisor's meetings reflect the following in regard to the retainer set for GTE. Year Annual Retainer 1989 $ 13,000.00 1990 13,000.00 1991 None indicated 1992 13,008.00 1993 13,000.00 1994 13,000.00 1995 13,000.00 10. The March 7, 1989, Unity Township Planning Commission Meeting was the first meeting attended by Schmitt as Township Engineer. a. Schmitt was introduced to the Board by Mark Gera. 11. In Unity Township, when a subdivision is proposed, the proponent must enter into a Developers Agreement, which includes provisions requiring the township engineer to review and make recommendations on the subdivision design construction, and to conduct inspections. a. Inspection fees are to be paid to the engineer by the township from monies deposited into escrow by the developer. b. This agreement is a requirement for all developments submitted for approval in the township. c. The use of developers agreements and the procedures for subdivision approval and development evolved to meet changing procedural requirements and charges imposed in the Pennsylvania Municipalities Planning Code. 12. Unity Township also requires developers seeking final approval of projects to provide the township with a bond, letter of credit, or to establish an escrow account, in an amount equal to 1 10% of the total costs of the improvements. Schmitt, 95- 007 -C2 Page 4 a. Inspection fee's for services provided by GTE on a development were deducted from the escrow account. b. Unity Township did not keep detailed financial records relating to the various development's inspection fees. 13. Prior to any Planning Commission or Board of Supervisor's approval of preliminary or final plans for private developments in Unity Township, the plans are subject to review by the Township Engineer and the Ordinance Officer. a. The review was to assure compliance with the Township Zoning Ordinances, DER regulations and other mandates. b. Additional review was required by the Westmoreland County Soil Conservation Service as to soil sedimentation control plans and stormwater management plans as well as compliance with all other applicable regulations relating to public sanitary sewers or other disposal means contemplated by a given development. 14. Plans on file with Unity Township and Westmoreland County, confirm that GTE was the privately retained Engineer of Record for the following developments between 1989 and 1995, for which township action was required: Woodland Estates Mountain View Village Mt. Laurel Estates The following findings relate to the Woodland Estates Development. 15. Woodland Estates was developed by REMOCWEN Investment Trust, Inc., on eleven acres of property located in Unity Township which had been purchased in 1988. . a. Intentions were to sub - divide the eleven acre property into eight residential Tots, for subsequent sale. b. The subdivision was also known by the names Woodland Drive, Woodland Estates, REMOCWEN Subdivision and Woodland Acres. 16. REMOCWEN Investment Trust, Inc., is a corporation located at RD #2, Box 263, Latrobe, Unity Township, PA. a. James Newcomer was the President. b. The company was formed by James Newcomer, and his brother and sister. 17. A Unity Township Planning Commission Land Subdivision /Development Application was filed by James Newcomer for the Woodland Estates Development on May 26, 1988. a. Jan Perkins, a professional engineer sub - contracted by Gibson- Thomas Engineering Company, Inc., is listed as the engineer. Schmitt, 95- 007 -C2 Page 5 18 The Woodland Estates Subdivision Plan was prepared and sealed by Jan Ernst Perkins, P.E., sub - contractor of GTE for filing with the Westmoreland County Planning Commission. a. The plan was dated in October, 1987. b. The plan shows the GTE I.D. #GT -6996. c. The plan was prepared for REMOCWEN Investments Trusts. 19. A Woodland Estates Plan and Profile was also designed and drawn by GTE sub- contractor Jan Perkins on February 26, 1989, and submitted to Unity Township. a. The actual drawing displayed the GTE logo in the lower right hand corner. 20. The drawing was first revised on August 14, 1989, with the GTE logo deleted. a. This revision showed the Professional Engineer seal of Mark John Gera. 1) Gera was the owner of GTE at the time. 21. A second revision of the Woodland Estates drawing was dated September 13, 1989, with Gera's seal deleted. 22. The final revision of the Woodland Estates drawing was dated September 27, 1989, and devoid of any seal or logos identifying GTE as the private engineers. 23. When the Woodland Estates Plan and Profile was submitted to the Unity Township Supervisors, Supervisor C. T. Baughman questioned whether a conflict of interest may exist. a. Baughman questioned the propriety of GTE reviewing plans as township engineer that were submitted by GTE staff. b. Township Solicitor, William Stillwagon, advised Baughman that as long as GTE logo and Mark Gera's P.E. seal did not appear on the plans, no conflict of interest existed. c. At the time of this advice, Stillwagon had already posed this question to the State Ethics Commission, which issued an advisory opinion. (See Finding #146). 24. Based on Stillwagon's advice, the revisions to void the seals and logo were made to the Woodland Estates Plan by GTE. a. The revisions deleted the GTE logo and Gera's P.E. seal. 25. At this point in time, Schmitt had no involvement in the Woodland Estates Plan. mf 95- 007 -C2 Page 6 26. The Unity Township Supervisors unanimously agreed to grant preliminary approval for the Woodland Estates Subdivision, during the April 13, 1989, meeting. a. The plan was incorrectly labeled in the minutes as Woodlawn Subdivision. b. The plan was previously approved by the Planning Commission. c. The supervisors approved the plan contingent upon the final design for the storm water drainage and cul -de -sac design. d. The approval was based, in part, on the township engineer's review. 27. The Unity Township Planning Commission a Woodland Estates Development at the Septembere12 the 1989 1989, meeting, t by unanimous vote. a. Schmitt was in attendance as Township Engineer. b. The plan was previously approved on June 6, 1989, but re-approval necessary because the developer failed to record said pla p within the designated time frame. 28. The Unity Township Supervisors unanimously granted final re-approval Woodland Estates Development, during a September 14, 1989 eting r the a. Re- approval was necessary due to the developer's failure to timely file the plan with the County Recorder's Office. b. The re- approval was contingent upon approval from Storm Water Management and additional work on the cul -de -sacs. c. Mark Gera was present as Township Engineer and Sewage Enforcement Officer. 29. By way of letter, dated October 5, 1989, to Mark Gera, Ordinance Officer, Kevin Firment, requested itemized accounting of he inspector's time for each individual development on a weekly basis along with a copy of the inspector sheets approving or disapproving each phase of the development. Firment also provided copies of the permits issued for the Woodland Estates Development. 30. By way of letter, dated September 12, 1989, to Kevin Firment, Unity Township Ordinance Officer, Mark Gera, P.E., GTE, advised that the Storm Water Control Plan for Woodland Drive in Woodland Estates met the criteria of the township. a. This review and opinion was issued by GTE in the capacity of Unity Township Engineer. 31. By way of letter, dated November 16, 1989, to Dan Schmitt, Gregory Philips, District Manager for the Westmoreland Conservation District advised that the Woodland Acres (Woodland Estates) Erosion and Sedimentation Control Plan Schmitt, 95- 007 -C2 Page 7 had been reviewed and would be considered adequate for normal weather conditions. a. Dan Schmitt became involved with this plan on or about this time. 32. By way of letter, dated November 20, 1989, to Dan Schmitt, James Pillsbury, Westmoreland Conservation District Hydraulic Engineer, provided comments relating to the Woodland Drive Storm Water Plan, and advised that the project did not contain the appropriate plan elements. 33. By way of letter, dated November 22, 1989, to Schmitt, Gregory Phillips, District Manager for the Westmoreland Conservation District, advised that the Storm Water Management Plan for the Woodland Acres Revisions (Woodland Estates) was reviewed, and comments were contained in an attachment. 34. REMOCWEN provided funds to establish an escrow account which was maintained by Unity Township, during the construction of the Woodland Estates Development. a. Payments for inspections performed by GTE were made to GTE from the escrow account. b. Township records of the disbursements from REMOCWEN's escrow accounts were not available. 35. Township records confirm that GTE was paid $ 1,030.00, for inspection work at the Woodland Estates Development on 11/24/89. Date Invoice # Amount Date Paid Check # 11/24/89 2617 $1,030.00 12/29/89 555 36. GTE billed REMOCWEN Investments as follows for private engineering work at the Woodland Estates Development: Date Invoice # Amount Date Paid Check # 06/11/90 2919 $3,300.00 08/14/90 1 136 $ 5,000.00 09/07/90 166 Total: $8,300.00 37. GTE daily inspection Togs confirm that Schmitt, acting in the capacity as township engineer, supervised the roadway inspection of the Woodland Drive development on December 4, 1995. Schmitt was accompanied by Township Supervisor Stas at the time. As a result of the inspection, REMOCWEN received approval to install the final layer of asphalt on the roadway of the Woodland Drive Development. 38. GTE time sheets for Dan Schmitt indicate dates and time spent by Schmitt on the Woodland Estates Development. a. b. Schmitt, 95- 007 -C2 Page 8 Date Time (Hours) 08/18/93 2 09/23/93 2 09/29/93 1 06/22/94 1 39. REMOCWEN selected GTE as their engineering firm to design the subdivision for the following reasons. a. Newcomer based his decision to choose GTE on their economical rates, convenience, personal knowledge of owner, and the possibility of saving money because of their specific knowledge of township rules and procedures because of their township's engineer position. b. Newcomer recalled that several employees of GTE specifically dealt with the private engineering work of the corporations subdivision, Schmitt included. The following findings relate to the Mountain Laurel Estates Development. 40. Mountain Laurel Estates was developed by Prestige Development, a residential builder located at 402 Primrose Drive, Greensburg, PA 15601. a. In 1993, Prestige Development purchased a parcel of land located in Unity Township, from Himandavo Ventures. 41. Mountain Laurel Estates was planned as a 51 lot residential subdivision, on 46.9 acres of property adjacent to Township Road 695 (Cavalier Road), Latrobe, Unity Township, Pennsylvania. a. Phase I was to contain 20 Tots, on 17.5 acres. In a private capacity, GTE completed the lot layout; road layout; signing; sanitary sewer system; storm sewer system; and other related engineering functions for the development. 42. Subsequent to purchasing the Mt. Laurel Estates property, David Roach contracted with GTE to perform engineering services in regards to the project. a. GTE designed the plans on the property for the previous owners. 43. David Roach was advised by Gera that the previous developer, Himandavo Ventures, owed GTE $25,000.00. a. Gera advised Roach that the $25,000.00 debt would need to be satisfied prior to GTE performing any services for Prestige. 44. Roach negotiated a settlement with GTE to pay the $25,000.00. 45. The original plans for the Mt. Laurel Estates Subdivision Plan, Phase I, was prepared by Jan Ernest Perkins, P.E., in July, 1989. a. Perkins is a subcontractor of GTE. Schmitt, 95- 007 -C2 Page 9 b. The plan bears the GTE ID# GT -7199. c. The plan was prepared for Himandavo Ventures. d. The plan is on file with Westmoreland County Office of Recorder of Deeds. 46. By way of letter, dated August 31, 1989, to Daniel Schmitt, Gregory Philips, District Manager for the Westmoreland Conservation District, advised that the Erosion and Sedimentation Control Plan for Mt. Laurel Estates Phase I had been reviewed and was found to be adequate for normal weather conditions. a. The letter was sent to Schmitt in his capacity as Township Engineer. 47. On September 12, 1989, Kevin Firment, Ordinance Officer for Unity Township, was advised by Mark Gera, GTE, that the Storm Water Control Plan for Mt. Laurel Estates Phase I, met the criteria of the township and was designed in accordance with Township Road Ordinance 169. 48. The Unity Township Planning Commission, by unanimous vote, conditionally granted final plan approval to the Mountain Laurel Estates Development,. on September 12, 1989, contingent that the berm be improved with curbing on the • lots that front on Carney Road. a. Schmitt was in attendance as township engineer. b. The owner of the development was HIMANDAVO Ventures, represented by Fred Davoli. c. Kevin Firment, Township Ordinance Officer, read from an outline prepared by himself and the township engineer, containing a number of items that needed to be addressed. d. At the same meeting of the Unity Township Planning Commission (09/12/89), Schmitt commented on the Mt. Laurel Estates - Phase I, in his capacity as engineer for the private developer. 49. At the 09/12/89 meeting, Daniel Schmitt appeared as the engineer representing the private developer and at the same time acted as the township engineer in reviewing and making recommendations on the noted issues. 50. The Unity Township Supervisors unanimously granted final approval for the Mt. Laurel Estates Plan, during the October 12, 1989, meeting. 51. The Unity Township Planning Commission re- granted final approval for the Mountain Laurel Estates Plan at the January 2, 1990, meeting, by unanimous vote. a. Mark Gera was present as township engineer. b. The plan was previously granted final approval on September 12, 1989; however, the owner failed to properly record that plan. Schmitt, 95- 007 -C2 Page 10 c. The plan was granted final approval with the condition that the berm be improved with curbing on the lots that fronted Carney Road. 52. The Unity Township Supervisors unanimously granted final re- approval for the Mt. Laurel Estates Plan, Phase 1, during the January 10, 1990, meeting. a. The plan met all the requirements, as reviewed by the Township Engineer and Ordinance Officer. 53. By way of letter, dated March 7, 1990, to Merle Musick, Chairman of the Unity Township Planning Commission, Mark Gera, President of GTE; addressed a question raised at the March 6, 1990, meeting, relative to the approval of the storm water control system at the Mountain Laurel Development Plan. a. Action on the plan was tabled because a letter from GTE had not been received relative to the acceptability or inadequacies of the proposed soil erosion control and storm water systems. b. Gera contended that it was not a practice of GTE to provide such a letter prior to the Planning Commission prior to approval of such plans. 1) These items had been handled by the Board of Supervisors and Municipal Authority. c. Gera noted that the storm water situation is similar to the review and approval of sewer facilities development which did not require a letter from the Municipal Authority to the Planning Commission relative to the status and acceptance of sanitary sewer plans. d. A clarification of the items required by the Planning Commission prior to the plan's approval was necessary between the Board of Supervisor's Planning Commission and GTE. 54. By way of letter, dated March 7, 1990, to the Unity Township Board of Supervisors, Mark Gera advised that the proposed storm water plan for the Mountain laurel Development will meet township requirements, with some modifications. a. Gera noted that he would work with the Board of Supervisors prior to construction to modify the facilities, as required. 55. A revised plan for Mt. Laurel Estates, Phase I, was prepared by Jan Perkins, P.E., and dated March 3, 1992. a. The plans bear Perkins' P.E. seal and the GTE logo. b. The plans bear the GTE ID# GT -7199. c. The plans were prepared for Prestige Development, Inc. 56. By way of letter, dated April 8, 1991, Edward Schmitt, GTE, provided the costs for the development of the entire plan for Mountain Laurel Estates, to Dave Roach, President of Prestige Development, developer of the plan. Schmitt, 95- 007 -C2 Page 11 57. The Unity Township Planning Commission unanimously granted final approval for the Mountain Laurel Estates Final Plan at the April 14, 1992, meeting. a. Dan Schmitt was in attendance. b. The owner of the development was noted to be Prestige Development, Inc. c. Schmitt, in conjunction with the Township's Ordinance Officer, formulated an outline for the P.C. member's use during the meeting, which contained the following comments on Mountain Laurel Estates: 1) Lots meet all requirements: 51 lot subdivision; plan received Preliminary Approval of the UTPC 3/3/92. 58. The Unity Township Supervisors unanimously granted final approval for the Mt. Laurel Estates Phase I Subdivision only, during the April 16, 1992, meeting. a. Schmitt was listed in the roll call of officers in attendance. 59. On May 8, 1992, Mark Gera, GTE, advised Vince Shilabod, Ordinance Officer for the Unity Township Supervisors, that the Water Management Plan for Mt. - Laurel Estates was prepared in compliance with township ordinances and Soil Conservation Services Management. a. Gera provided suggestions regarding the traffic plan prepared by the traffic engineer for Mt. Laurel Estates. 60. The Unity Township Supervisors unanimously granted final approval of the construction plans for Mt. Laurel Estates Phase I Development, during the May 14, 1992, meeting. a. The official roll call indicated the attendance of Dan Schmitt from GTE. 61. On September 23, 1992, Revision II for Mt. Laurel Estates was filed with Westmoreland County Recorder of Deeds. a. The plan bears the P.E. seal of Daniel Schmitt and the GTE logo. b. The plans bear the GTE ID# GT -7199. 62. On November 10, 1992, Daniel Schmitt provided Dave Roach, Mountain Laurel Estates developer with drawings; and enclosed a partial site plan and cost estimate for the gas line location. 63. A letter of Transmittal, dated April 16, 1993, indicates that Schmitt provided a sketch of the entrance for Mt. Laurel Estates to the Unity Township Supervisors, specifically to the attention of Vince Shilabod, Ordinance Officer. 64. The Unity Township Planning Commission unanimously granted the final re- approval for the Mountain Laurel Estates Development Plan at the June 1, 1993, meeting. Schmitt, 95- 007 -C2 Page 12 a. The township engineer, in conjunction with the ordinance officer, formulated an outline for the Planning Commission member's use, during the meeting, which contained the following comments concerning the Mt. View Village Plan: 1) Plan received approval of the Planning Commission on 3/3/92, and the Supervisors on 3/16/92, contingent on DER approval and receiving a highway occupancy permit. DER approval has since been received; however, the 90 day time limit has expired. 65. Schmitt addressed items to be corrected following an inspection of the storm sewer system of Mt. Laurel Estates, by way of letter dated September 30, 1993, to developer Dave Roach. The items listed are as follows: a. All disturbed areas need to be seeded and mulched. Erosion controls installed around basin until it is stabilized. b. The following pipes entering inlets require additional grouting: 1) Right side inlet on Pine Street at the intersection of Pine and Daisy (approx. sta. 6 + 75); 2) Inlet on left side of Pine Street, where 36" pipe enters system (approx. station 10 + 00). 66. By way of letter, dated October 19, 1993, to Dave Roach, developer of Mt. Laurel Estates, Schmitt advised of concerns of Unity Township Supervisor, Stas, and that shoulder marks be replaced so that snow plow trucks could tell the difference between the roadway and shoulder on Cavalier Road near the development. 67. By way of letter, dated November 3, 1993, to Mt. Laurel Estates, developer Dave Roach, Schmitt advises that numerous attempts had been made to contact him to sign the revised site plan so that it could be approved by the Planning Commission and Supervisors prior to recording. 68. The Unity Township Planning Commission unanimously granted the final approval for the Mt. Laurel Estates, Phase I, Revision #2 Plan, at the February 1, 1994, meeting. a. A meeting outline agenda was previously completed by the Township Engineer and the Township Ordinance Officer in order to assist the Planning Commission members in their decision making on individual plans, and contains the following comments: 1) Mt. Laurel Estates, Phase I Revision was approved by the Unity Township Supervisors 11/18/93. This is the exact same plan as approved. The only change is the renumbering of the lots. 69. On March 18, 1994, Schmitt advised Dave Roach, that areas of concern pertaining to the roadway, sanitary and storm sewers had been handled as per the project specifications and drawings. The final layer of asphalt and Schmitt, 95- 007 -C2 Page 13 necessary bonding requirements were all that was necessary to comply with the township ordinance. 70. By way of letter, dated July 25, 1994, to Dave Roach, Schmitt related problems with erosion, wash -outs, and accumulation of sediment on roads in Phase I, which Township Supervisor Stas felt would be eliminated by the installation of storm sewers along both roads and at the development of the front Tots along Cavalier Road. 71. In correspondence dated November 15, 1995, to Dave Roach, Schmitt noted that with the final layer of asphalt was placed on Mt. Laurel Estates Phase I, in October, and that before the township would accept the roads, a maintenance bond would be necessary. A bond in the amount of $41,300.00, representing 50% of the estimated costs to install the sub -base, binder and wearing course, was necessary. The bond would be for a two year period, beginning the day after the township accepted the roads. 72. Mt. Laurel Estates Phase II Development Plans were prepared by Harry L. Rusher. a. b. a. The plan displays the Professional Land Surveyor seal of Rusher. b. The plan does not show either the seal or signature of Schmitt. c. The plan shows the logo of GTE. d. The plan shows the GTE ID #GT -7199. e. The plan was dated May 27, 1994. f. The plan was prepared for Prestige Development, Inc. 73. On June 7,1994, The Unity Township Planning Commission granted preliminary approval of the Mt. Laurel Estates Development, pending receipt of necessary permits. a. Planning Commission members were supplied with a outline of the itinerary of the plans coming up for approvals. The itinerary was composed by the Code Enforcement Officer and the township engineer in reference to the Mt. Laurel Estates Development. b. Dan Schmitt noted that the master plan was changed installing a cul -de- sac due to the slope of the roadways. Public water and sewage is available; however, the following approvals are needed: DER planning modules, N.P.D.E.S. permit through the County Conservation District along with developers' agreements with the UTMA and the Supervisors. 74. The Unity Township Supervisors unanimously granted preliminary approval for the Mt. Laurel Estates Phase II Plan, during the June 9, 1994, meeting. Schmitt, 95- 007 -C2 Page 14 a. The plan needed the following additional work: 1) DER Planning Modules. 2) UTMA approval. 3) N.P.D.E.S. Permit from County Conservation District. 4) Developers Agreement with supervisors. b. The needed work was researched and compiled by the Township Ordinance Officer and the Township Engineer. c. The roll call of officials indicated the presence of the Engineer, Dan Schmitt. d. The township supervisors based their decision in part, on the review of the plans by Dan Schmitt. 75 On December 6, 1994, the Unity Township Planning Commission voted to accept the Mt. Laurel Estates Development Preliminary Plan. a. The Planning Commission members were provided with an itinerary of plans prior to the meeting which was composed by the Code Enforcement Officer and the township engineer and reads as follows in reference to the Mt. Laurel Estates Development: b. Dan Schmitt noted that a cul -de -sac has been revised along with removing a gas well to allow three additional Tots. 76. By way of letter, dated January 12, 1995, (1996), to Westmoreland County Conservation Compliance Officer, Kelly Sofaly, Schmitt re- submitted the Erosion and Sedimentation Control Plan and the Storm Water Management Plan for Mt. Laurel Estates Phase 11, with the added comments as suggested during the review of the initial submission of the plans. 77. By way of letter, dated February 13, 1995, to Dave Roach, developer of Mt. Laurel Estates Phase 11, Schmitt provided the status of the project and advised that construction could probably begin in the spring of 1995, since he anticipated that all necessary approvals would be received. 78. By way of letter, dated February 16, 1995, to Dave Roach, Schmitt provided copies of the Mt. Laurel Estates Phase 11 Lot Layout as requested by Roach. Schmitt advised that Unity Township required a copy of the deed restrictions and covenant to be submitted with final plan review. 79. By a Letter of Transmittal, dated April 13, 1995, Schmitt provided Roach with a copy of the Earth Disturbance Inspection from DER on the Mt. Laurel Estates Project. a. A second Letter of Transmittal, dated April 17, 1995, from Schmitt to Roach, provided Acknowledgment of Receipt of the NPDES Permit Application package for Mt. Laurel Estates. Schmitt, 95- 007 -C2 Page 15 80. On May 2, 1995, the Unity Township Planning Commission gave final approval for the Mt. Laurel Estates Development Subdivision. a. There is no record of Dan Schmitt present in the roll call of township officers; however, the minutes record that Dan Schmitt reminded the Board they should not grant final approvals with contingencies. 81. On May 19, 1995, the Unity Township Supervisors discussed concerns with Mt. Laurel Estates Development. a. There was a question of downspouts running onto the Carney Road. b. Dan Schmitt noted the homes involved were pre- existing to the Storm Water Management Ordinance and therefore "g andfathered in ". 82. By way of letter, dated May 19, 1995, to Merle Musi k, Jr., Unity Township Code Enforcement Officer, Schmitt provided follow -up i formation to a meeting between the two on 05/18/95, which included: 1) All necessary approval have been receiv d by the developer to initiate Phase II of the Development. 2) No outstanding violations exist on Phase I pertaining to erosion and sedimentation control. 83. By way of letter, dated May 23, 1995, to Dave Roach, Schmitt provided a list of items to be submitted to and approved by Unity Township. 84. By Letter of Transmittal, dated May 24, 1995, GTE Engineer, William Glasser, provided the Unity Township Supervisors with an Application for a Grading Permit for Mt. Laurel Estates. a. A handwritten notation at the bottom to Schmitt states, "Danny F.Y.I. ". b. The attached Application for a Grading Permit, specifies that the purpose of the grading is for the construction of roadways and installation of utilities. 1) The application specifies GTE as the project engineer. 2) The application is signed by David Roach, and dated 05/01/95. 85. By way of letter, dated July 6, 1995, to Merle Musick, Jr., Unity Township Code Enforcement Officer Schmitt, provided an estimate of $15,500.00, for the inspection costs for the roadway, storm sewers and detention basin construction of Mt. Laurel Estates Phase II, 50% ($7,250.00) to be escrowed with the supervisors prior to construction. 86. By way of letter, dated July 15, 1994, to Daniel Schmitt, P.E., GTE, James Pillsbury, Hydraulic Engineer for the Westmoreland Conservation District, advised that the Mt. Laurel Estates Phase II plans were reviewed and meet the requirements of PA Title 25, Chapter 102, Erosion Control. Revised plans Schmitt, 95- 007 -C2 Page 16 would need to be re- submitted with the corrections indicated on the attachment: 87. On July 15, 1994, James Pillsbury advised Schmitt that a review of the Storm Water Management Plan submitted for Mountain Laurel Estates Phase 11, found that the project did not contain the appropriate plan elements. 88. By way of letter, dated August 23, 1993, (1994), to James Pillsbury, Schmitt responded to the July 15, 1994 letter and requested an extension of thirty days to respond to the request for additional information by the Conservation District regarding Mt. Laurel Estates Phase 11. 89. By way of letter, dated October 23, 1995, to Unity Township Supervisor Stas, Schmitt related his intention to allow the Mt. Laurel Estates Contractor to pave on the scheduled date as long as the PennDOT temperature requirements are adhered to and weather permits. 90. By way of letter, dated November 6, 1995, to Ken Hays, of Hays Contracting, Schmitt advised that he and Supervisor Stas had inspected the road being constructed in Mt. Laurel Estates Phase 11, and discussed the problems Hays was experiencing. a. Schmitt suggested installation of a geotextile in the problem areas prior to installation of the binder. b. Schmitt noted that the recommendation does not mandate that the supervisors accept the road if it does not meet the requirements. 91. The Unity Township Supervisors unanimously granted a Variance for HIMANDAVO Ventures, Mt Laurel Estates Development Phase 1, during a August 29, 1989, Variance Hearing meeting, during which Schmitt provided comments. a. The purpose of the meeting was to hear a request for a variance for a cul -de -sac street. b. Dan Schmitt, Engineer for Davoli's, stated they looked at three alternative to the cul -de -sac, but the grade was too steep. 92. Between July 31, 1991, and July 7, 1995, GTE, as engineer for the developer, billed Prestige Development a total of $50,200.25 for private engineering work on Mt. Laurel Estates, Phases I and II. Date Invoice # Amoun Date P Check # 07/31/91 3546 $ 2,000.00 07/31/91 1007 06/01/92 3951 7,075.25 06/17/92 1014 12/22/92 4282 11,115.00 02/25/93 114 02/23/95 5834 24,250.00 04/11/95 178 06/08/95 6110 2,047.50 06/26/95 188 07/07/95 6191 3.712.50 07/31/95 189 $50,200.25 Schmitt, 95- 007 -C2 Page 17 93. GTE, as township engineer, billed Unity Township a total of $15,138.15, for inspection services associated with Phase I and II of the Mountain Laurel Estates Development. GTE billed Unity Township and the township deducted the amount from the escrow account it maintained for the Mountain Laurel Estates Development. Date Invoice # Amount Date Paid Check # 12/22/92 4286 $ 4,475.63 03/09/93 10091 04/14/93 4440 2,200.00 05/26/93 10464 05/11/93 4498 1,347.50 08/05/93 10560 05/24/93 4533 1,512.50 08/05/93 10560 06/07/93 4566 1,622.50 10/08/93 10663 07/06/93 4611 2,076.25 10/08/93 10769 04/13/94 5145 70.00 05/02/94 8072 08/04/95 6238 1,031.25 Not listed Not listed 09/07/95 6314 123.75 Not listed Not listed 10/11/95 6448 678.75 Not listed Not listed $15,138.13 94. GTE was also being paid a monthly retainer by Unity Township to serve as township engineer. 95. Daily inspection logs pertaining to the Mountain Laurel Estates Development confirm that GTE furnished one of their inspectors at the construction site on various dates in 1992 and 1993 for Phase I and in 1995 for Phase II. 96. During the period from December 26, 1989, through and including October 25, 1995, Daniel Schmitt worked 254 hours on the Mt. Laurel Estates Development. The following findings relate to the Mountain View Village Estates Development. 97. Mountain View Village Estates was developed by Charles C. Mason, Jr., and Vance Booher, Ill, on a forty acre tract of land located off White School Road (S.R. 2015), Latrobe, Unity Township, PA. a. The subdivision was to contain ten lots for construction of single family homes. b. Mason and Booher were the owners of the land. 98. By way of a letter, dated November 15, 1991, to Dan Schmitt, Timothy Bolden, Engineer, requested payment for engineering services which he supplied for Mt. View Village, in the amount of $118.75. a. Bolden provided computer aided design services to GTE in relation to the Mt. View Village Estates subdivision plans. 99. The Mt. View Village Subdivision Plan was prepared by Jan Ernst Perkins, P.E., sub - contractor of GTE. a. The plan did not display the P.E. seal of Perkins, or the signature of Schmitt. Schmitt, 95- 007 -C2 Page 18 b. The plan, originally dated January, 1992, does include the GTE logo. c. The plan shows the GTE I.D.# GT -7471. d. The plan was prepared for Charles C. Mason, Jr, and Vance E. Booher, III. e. The plan is on file in the Westmoreland County Recorder of Deeds Office. 100. A second plan for the Mt. View Village Subdivision, was prepared by another engineer employed by GTE. a. The plan did not display the signature of Schmitt. b. The plan, originally dated January, 1993, includes the GTE logo. c. The plan shows the GTE I.D.# GT -7471. d. The plan was prepared for Charles C. Mason, Jr., and Vance E. Booher, III 101. Unity Township records include a Unity Township Land Subdivision /Development Application, dated February 3, 1992, for the Mt. View Village Development, as signed and submitted by Daniel Schmitt, GTE. 102. On February 4, 1992, the Unity Township Planning Commission approved the Mt. View Village Subdivision preliminary plans. a. The approval was given following comments from Dan Schmitt. b. Schmitt announced that he was present as engineer for the developer. 103. On February 6, 1992, Schmitt advised Chuck Mason that preliminary approval for the proposed subdivision of White School Road (Mt. View Village), was received from the Unity Township Planning Commission. Schmitt stated that before final approval is given, the following items would need to be clarified: 1. A subdivision development name. 2. Naming of the street. 3. Final lot locations 4. Approval of the sanitary sewer locations by the developer. 5. Signing of the Highway Occupancy Permit. a. Schmitt advised that the Water Authority could provide service to the property. b. In order to assemble the final approval package for the March Planning Commission and Board of Supervisor's meetings, revision needed to be made as soon as possible. Schmitt, 95- 007 -C2 Page 19 c. Schmitt wrote the letter in his capacity as engineer for the Planning Commission. 104. The Unity Township Supervisors unanimously granted preliminary approval for the Charles C. Mason, Jr., and Vance E. Booher HI, Mt. View Village plan during the February 13, 1992, meeting. 105. The Unity Township Planning Commission granted final plan approval for the Mt. View Subdivision on March 3, 1992, contingent upon receiving DER approval and a Highway Occupancy Permit. 106. The Unity Township Supervisors unanimously granted final approval for the Mt. View Village Plan, during the March 16, 1992, meeting. a. The Township Engineer, in conjunction, with the Township Ordinance Officer, prepared a checklist of the plan which stated: 1) Plan meets all requirements except: a. A Highway Occupancy Permit from the state. b. DER approval of above. c. Approval of water run -off by supervisors. b. The Chairman of the Supervisors recommended that the storm sewer plans and the roadway construction be tabled, but action on the remainder of the plan be taken. c. The roll call indicated that Mark Gera was in attendance as the engineer. 107. By way of a letter, dated May 5, 1992, Daniel Schmitt, P.E., GTE, notified Charles Mason of the developmental costs for the Mt. View Village Development, estimated to total $395,140.00. Included was a 6% engineering charge of $21,250.00. Schmitt sent the letter as private Engineer for the development. 108. The Unity Township Supervisors unanimously agreed to amend Act 537 (Resolution R- 9 -92), to extend a sewer line for the Mountain View Village area, during the May 14, 1992, meeting. a. Mt. View Village Development was privately engineered by GTE. b. The official roll call indicated that attendance of Dan Schmitt from GTE. 109. On September 23, 1992, Schmitt provided to Charles Mason six revised sets of construction drawings for the Mt. View Village Development. 110. The Unity Township Supervisor's unanimously granted final re- approval to the Mt. View Village plan at the June 10, 1993, meeting. a. b. Schmitt, 95- 007 -C2 Page 20 111. By way of letter, dated May 11, 1994, to Township Solicitor William Stillwagon, Schmitt recommended that a Performance Bond of $210,000.00, be included in the Mt. View Village Developers Agreement. 112. A Developer's Agreement between Unity Township and Mt. View Village Subdivision developer Charles Mason, Jr., and Vance Booher III, was executed on June 10, 1994. The agreement required certain actions by the private engineer for the developer and by the township engineer. a. A plan prepared by the developer's engineer showing detailed plans and profiles of the paving, shall be submitted to the township, along with detailed plans of drainage and proposed drainage facilities. b. To install the streets, roads, public ways, storm sewers, curbing, gutters, utilities; including the entire storm sewer system as described on plans submitted by developers to the township engineer, and finally approved by the township engineer and the Supervisors of the Township of Unity. c. Developers agree that any and all work performed shall be done under the township's supervision and at the direction of the township engineer and supervisors. d. Any changes in the approvals granted by the township supervisors on any plans, profiles or other information submitted to the township supervisors shall be made only after the written approval of the township supervisors and the township engineer. e. In the event that the township engineer determines that maintenance, repair work or construction, are not completed as provided in this agreement prior to the expiration date of this agreement, then he or the supervisors shall notify developers to make the necessary repairs. f. The township agrees to accept the dedication of the streets, roads, public ways, storm sewer, easements and rights -of -way upon completion and final approval by the township engineer and supervisors. It is further understood and agreed that Charles C. Mason, Jr., and Vance E. Booher, III, shall guarantee performance of the terms and conditions of this agreement as it may be affected by the terms and provisions of the ordinances of the Township of Unity and the decisions of the supervisors and township engineer. 113. By way of facsimile transmission, dated June 23, 1994, Charles Mason notified Schmitt of the proposed installation of a stone wall above the roadway in relation to the Mt. View Village Subdivision. a. A handwritten notation states "OK'd by M. O'Barto ". b. O'Barto is a Unity Township Supervisor. 1 14. On August 19, 1994, Dan Schmitt submitted a pay estimate to Charles Mason for Mt. View Development as reviewed and approved. g. Schmitt, 95- 007 -C2 Page 21 1 15. By Letter of Transmittal, dated July 27, 1995, to Chuck Mason, GTE employee Joetta Diorio, provided a pay request from Monzo Construction which had been reviewed and approved by Dan Schmitt, P.E., GTE. a. The attached application and Certificate for Payment was in regard to the partial payment of $2,800.00 for work performed on the installation of the Mt. View Village sanitary sewer line between 11/94 to 07/95. 116. By way of letter, dated September 28, 1995, to Charles Mason, Schmitt advised that the Performance Bond posted with the township on the Mountain View Village Development could be reduced to $16,200.00, since the sub -base and binder course had been placed. 1 17. On November 9, 1995, the Unity Township Supervisors gave approval to revise the final plan of the Mt. View Village Development: a. The roll call indicated the presence of Engineer Dan Schmitt. 118. On November 8, 1995, the Unity Township Planning Commission voted to approve the Mt. View Village Development request to relocate a lot line. a. The official roll call indicates that Engineer Dan Schmitt was present. b. Prior to the above meeting, the township engineer, along with the Zoning Officer, composed an agenda which was distributed to the Planning Commission members to assist in their decision making. The agenda indicated comments by the Engineer and Ordinance Officer in relation to the Mt. View Village Development. 119. In the capacity of engineer, GTE completed the lot layout; road layout signing; sanitary sewer system; storm sewer system; and other related engineering functions for the Mt. View Village development. 120. During the construction of the Mountain View Village Subdivision, GTE drew payments for inspection fees from an escrow account maintained by the township with funds provided by the developer. a. Township records of the disbursements from the Mountain View Village escrow account to GTE were not available. 121. Records indicate that GTE was paid $19,828.25, for inspection work at the Mt. View Village Development from April 18, 1994 to October 6, 1995. a. GTE, as Township Engineer, billed Unity Township for the inspection work. b. Unity Township paid GTE from the escrow account funded by the developer and maintained by the township. 122. During this period, GTE was also being paid a monthly retainer by Unity Township to serve in the role of Township Engineer. Schmitt, 95- 007 -C2 Page 22 123. GTE billed Mason & Booher for the private engineering work at the Mt. View Village Development totaling $9,927.50. Date Invoice # Amount 03/26/91 3346 $3,260.00 05/12/92 3913 74.25 11/04/93 4884 6.593.25 Total $9,927.50 124. GTE's daily inspection Togs pertaining to the Mt. View Village Development confirm that GTE furnished one of their inspectors for construction inspections on twelve dates from July 29, 1994, through December 19, 1994. 125. GTE time sheets for Dan Schmitt confirm that from 05/23/91, through and including 09/13/95, Schmitt spent 107 hours on the Mt. View Village Development, in his capacity as an employee of GTE. 126. In addition to annual retainers and payments received for inspections, GTE also submitted invoices to Unity Township for engineering services: 1990 - $21,955.00 1991 - 7,369.64 1992 - 54,750.02 1993 - 27,404.16 1994 - 21,075.63 1995 - 51,362.75 a. The totals reflect services such as labor, drafting, engineering, expenses, maps, bridge inspections, road work, storm sewers, permits, and other related activities consistent with the duties of an appointed township engineer. b. The totals do not specifically reflect work performed on the three developments detailed in this report. c. The totals do not include inspection fees charged against township held escrow account for developments. 127. GTE time sheets for Daniel Schmitt confirm that between March 6, 1990, and November 9, 1995, Schmitt submitted hours worked for the Planning Commission and Board of Supervisors as follows: a. Planning Commission: 220 hours b. Board of Supervisors: 390.5 hours 128. In 1984, Unity Township Supervisor Baughman requested Solicitor Stillwagon check with the State Ethics Commission regarding GTE's role as private engineer and engineer for the township. 129. On August 16, 1984, the Ethics Commission issued Advice Of Counsel 84 -600, in response to Stillwagon's request. Schmitt, 95- 007 -C2 Page 23 a. Previous Ethics cases were cited to answer and explain the Advice of Counsel. 1) The engineer should abstain from participating in review, recommendations and discussions regarding the municipality's action on such plans (Sowers, 80 -050). 2) The developer, who is an elected township supervisor, could not inspect or approve his own work as a developer (Sowers, Supra). b. The Advice of Counsel concluded that as a public employee serving as engineer for the municipality, the conduct of the engineer in relation to his public post and his private employment should be governed by the following: 1. Not use his official position to obtain any business in a private capacity as Engineer; 2. Not utilize confidential information gained through his official position as Municipal Engineer; 3. Refrain from participating in discussions, review, or recommendations on matters which directly relate to clients he has served as a private Engineer which may have been subject to the review and approval and recommendation authority of a planning commission and subsequently reviewed by the Municipality itself. 4. Make public his relationship to such a private client with respect to any plans or recommendations that may come before the Municipality for final or further review and approval; and 5. Not review in his capacity as Municipal Engineer on behalf of the Municipality any plans on which he worked as a private engineer. If the guidelines discussed above are adhered to, the Municipal Engineer may concurrently serve as Municipal Engineer and private Engineer for clients even where those clients may be required to submit plans to the Planning Commission and /or the Municipality. 130. On January 1, 1996, Unity Township Supervisors and Gibson - Thomas Engineering Co. Inc., entered into a written agreement contracting engineering services in the capacity of engineer for the township, under the following conditions: a. Township shall pay the engineer $1,084.00 /per month as a retainer to include the following services: 1) Attend all Supervisors and Planning Commission meetings, plus monthly sewage meetings and act as a liaison between the sewage authority and the Township Supervisors. 2) Be available during regular business hours for consultation with the Supervisors or a Supervisor. Schmitt, 95- 007 -C2 Page 24 3) Review all plans brought before the Planning Commission with the ten (10) day period prior to the Planning Commission meeting and provide written recommendations to the Planning Commission. 4) Assist the Supervisors regarding road construction, drainage and road repair, where the services of an engineer are needed. 5) Assist the TOWNSHIP in all matters involving the services of an Engineer. b. For any additional consulting services, the Township shall be billed on a per job basis at the following rates: 1) Principal $75.00/hr 2) Engineer (field and office) $35.00- 65.00 /hour 3) Office Work- Technician $25.00- 40.00 /hour 4) Drafting $25.00- 35.00 /hour 5) Construction Inspection $22.50- 30.00 /hour 6) Survey Crew $55.00- 75.00 /hour 7) No charge for typographical or clerical service c. For all intents and purposes, ENGINEER shall be an independent contractor and be responsible for any acts or negligence on the part of the ENGINEER and shall also provide workmen's compensation insurance for it's own employees as well as professional liability insurance. A copy of the insurance coverage shall be provided to the TOWNSHIP and be on file. d. The agreement was signed by the Township Supervisors, Yazvec, O'Barto, and Stas and the GTE President, Mark J. Gera. e. There were no other past written agreements on file between the two entities. f. This agreement would be valid for one year. 131. Included in the 1996 agreement between Unity Township Supervisors and GTE, was a provision ( #6) prohibiting the dual representation by GTE of a private client, while representing the township as Engineer and: a. The Engineer or any member of the engineering firm shall not appear before the Township for any planning matter or for any other matter representing any client of Engineer. b. It was acknowledged that the Engineer is also the independent consulting engineer of the Unity Township Municipal Authority and township consents to same. 132. Schmitt, as a Representative of GTE, reviewed, inspected, or approved plans submitted by individuals relative to projects which he and GTE were involved in a private capacity and for which compensation was paid. Schmitt, 95- 007 -C2 Page 25 a. In all of these projects, Schmitt, through GTE, was involved in both a public and private capacity. b. The Unity Township Supervisors and Planning Commission were aware of Schmitt's private representation. 133. Gibson - Thomas Engineering, Inc., failed to file Statements of Financial Interests in their capacity as Unity Township Engineers for the years 1994, 1993, 1992, 1991, 1990, 1989. 134. Dan Schmitt and GTE have cooperated with the Investigative Division throughout the investigation of this matter. 135. The officials of Unity Township, including the Supervisors, Code Enforcement Officers, Planning Commission Members, and Planing and Development staff were familiar with the requirements for the plans and subdivisions submitted to them and were actively engaged in the review of plans, specifications, inspections and the inspection of physical facilities so that each of the plans set forth above were independently reviewed and inspected. 136. The role of GTE was fully disclosed to the officials of Unity Township, and these officials were aware of the role played by GTE to the plans for the - developments discussed above. 137. GTE has developed a policy to not undertake any new private work in the future which would place the firm in a multiple- representation capacity. III. DISCUSSION: At all times relevant to this matter, the Respondent, Dan Schmitt, hereinafter Schmitt, has been a public (official)(employee) subject to the provisions of the Public Official and Employee Ethics Law ( "Ethics Law "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, el seq. The issue before us is whether Schmitt, as Engineer for Unity Township and Unity Township Planning Commission, Westmoreland County, violated Section 3(a) of the Ethics Law (Act 9 of 1989), as to allegations that he used the authority of his office to obtain a private pecuniary benefit for himself and a business with which he was associated when he participated in the township's review, consideration, modification or approval of developer plans which were prepared by a engineering firm, by which he was employed and in which his brother had a financial interest. Pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under Act 9 of 1989 as follows: Section 2. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the Schmitt, 95- 007 -C2 Page 26 65 P.S. §402. facts. 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 or his immediate family or a business with which he or a member of his immediate family is associated. Having noted the issues and applicable law, we shall now summarize the salient Since 1989, the firm of Gibson - Thomas Engineering Co., Inc. (GTE) has been appointed Municipal Engineer for the Unity Township Board of Supervisors and Planning Commission with an annual base retainer of $ 13,000. In that capacity, GTE performs review functions and makes recommendations on proposed subdivisions and conducts inspections. Schmitt is a licensed engineer employed by GTE. Mark Gera and Schmitt's brother Edward hold the total financial interest in GTE. Schmitt, on - behalf of GTE, represented the firm at meetings of the Township Board of Supervisors and Planning Commission from March, 1989 through January, 1996. Whenever a subdivision is proposed in Unity Township, the developer must enter into an agreement whereby the township engineer will review and make recommendations on proposed subdivision design construction and conduct inspections with the fees paid through the Township to the engineer from monies deposited by the developer. Thus, prior to approval by either the Planning Commission or Board of Supervisors, the preliminary or final plans for developments in the Township are reviewed by the township engineer and ordinance officer. The record reflects involvement by Schmitt as to three separate developments, Woodland Estates, Mountain Laurel Estates, and Mountain View Village, which we will consider seriatim. As to Woodland Estates, REMOCWEN Investment Trust, Inc. submitted a development for 11 acres of property. The Woodland Estates subdivision plan was prepared by Jan Perkins, P.E., as a subcontractor for GTE, and filed with the Planning Commission. Although the Woodland Estates Plan and Profile contained the GTE logo on the drawings, a subsequent revision deleted the GTE logo but contained Gera's seal as a professional engineer. A second revision was submitted which deleted Gera's seal. The final revision for Woodland Estates was devoid of any seal or logo identifying GTE as the private engineer. It appears that the deletions as to seal and logo occurred because one of the Supervisors raised a conflict question when the Woodland Estates Plan and Profile was submitted. Based upon the advice of the Solicitor, who opined that no conflict would exist if the GTE logo or Gera's seal would not appear on the plans, revisions were made to remove the seal and logo. Up to that point in time, Schmitt had no involvement with the Woodland Estates Plan. When the Planning Commission approved the final plan for Woodland Estates development, Schmitt was in attendance as Township Engineer. Subsequently the Schmitt, 95- 007 -C2 Page 27 District Manager for the Westmoreland Conservation District (WCD) advised Schmitt by letter that Woodland Estates erosion and sedimentation control plan had been reviewed and was considered adequate. In another letter to Schmitt from the WCD Hydraulic Engineer, commentary was provided that the Woodland Drive Storm Water Plan did not contain appropriate plan elements. The WCD District Manager advised Schmitt in a subsequent letter that the Storm Water Management Plan was reviewed and comments were contained therein. Schmitt, in his capacity as Municipal Engineer, supervised the roadway inspection at Woodland Drive Development. Thereafter, GTE received $1,030 for inspection work for the Woodland Estate development and billed the developer $8,300 for the private engineering work. The next development to be reviewed is Mountain Laurel Estates Development (MLED). MLED was a 51 lot residential subdivision owned by David Roach, who contracted with GTE to perform the engineering services. The original plans for MLED Phase I were prepared by Jan Perkins, P.E., as a subcontractor of GTE. Schmitt was advised by the WCD District Manager that the Erosion and Sedimentation Control Plan for MLED Phase I had been reviewed and was found to be adequate. The Unity Township Ordinance Officer advised Mark Gera of GTE that the Storm Water Control Plan for MLED Phase I met the criteria of the Township as per the Township Road Ordinance. With Schmitt in attendance at the Planning Commission meeting as Municipal Engineer, conditional final plan approval was given to MLED in September, 1989, contingent upon a berm improvement. The Township Ordinance Officer read an outline prepared by him and the Township Engineer which contained a number of items that needed to be addressed. Schmitt commented on MLED in his capacity as engineer for the private developer. Thus, at this meeting, Schmitt appeared both as engineer representing the private developer and as Municipal Engineer making reviews and recommendations. The Unity Township Supervisors unanimously granted final approval for the MLED Plan in October, 1989. At a Unity Township Planning Commission meeting in January, 1990, final approval was regranted for the MLED Plan with Gera present as Township Engineer. The Supervisors granted final re- approval of the plan following review by the Township Engineer and Ordinance Officer. By letter of March 7, '1990, Mark Gera advised the Unity Township Board of Supervisors that the proposed storm drain water plan for MLED met Township requirements with some modifications. A revised plan for MLED Phase I was prepared for Prestige Development, Inc. by Jan Perkins, P.E., which contained Perkin's seal and a GTE logo. In a letter dated April 8, 1991, Edward Schmitt of GTE provided costs for the development of the entire plan for MLED to the President of Prestige Development. The Planning Commission unanimously granted final approval for the MLED Final Plan at an April 14, 1992 meeting with Schmitt in attendance. For that meeting, Schmitt, in conjunction with the Township Ordinance Officer formulated an outline which contained commentary that all lots in MLED met all requirements. Thereafter, at an April 16, 1992 meeting, the Township Board of Supervisors, with Schmitt in attendance, unanimously granted final approval for MLED. After Mark Gera of GTE advised the Ordinance Officer that the water management plan for MLED was prepared in compliance with Township Ordinances and Soil Conservation Service Management, the Board of Supervisors, with Schmitt in attendance, unanimously granted final approval of the construction plans for MLED on May 14, 1992. Schmitt, 95- 007 -C2 Page 28 On September 23, 1992, Revision II for MLED was filed at the County with the plans bearing the P.E. seal of Schmitt and a GTE logo. On November 10, 1992, Schmitt provided the MLED developer with drawings, a partial site plan and cost estimate for the gas line location. Thereafter, on April 16, 1993, Schmitt provided a sketch of the entrance to MLED to the Supervisors. The Planning Commission unanimously granted final approval for the MLED development plan on June 1, 1993. At that meeting, the Township Engineer and Ordinance Officer formulated an outline for the Commission's use. By letter dated October 19, 1993, the MLED developer was advised of a Supervisor's concerns by Schmitt regarding shoulder markings which needed to be replaced so that snow plow trucks could distinguish between roadway and shoulder. At a February 1, 1994 meeting, the Planning Commission unanimously granted final approval to MLED Phase I, Revision II plan as per an agenda outline previously completed by the Township Engineer and Ordinance Officer in order to assist the members in their decision - making. On March 18, 1994, Schmitt advised the MLED developer about concerns as to the roadway, sanitary and storm sewers vis -a -vis the project specifications and drawings. Schmitt communicated with the developer by letter of November 15, 1995 (sic) concerning a final layer of asphalt to be placed in MLED Phase I and the need for a maintenance bond. On June 7, 1994, the Planning Commission granted preliminary approval of MLED pending receipt of necessary permits. The Township Board unanimously granted preliminary approval for MLED Phase II Plan on June 9, 1994. The plan, however, did need some additional work as per research compiled by the Ordinance Officer and Township Engineer. The approval by the Township Supervisors was based in part upon the review of the plans by Schmitt. On December 6, 1994, the Planning Commission voted to accept MLED Preliminary Plan as per information that was provided to the members by the Code Enforcement Officer and Township Engineer. Thereafter, Schmitt resubmitted an Erosion and Sedimentation Control Plan and Storm Water Management Plan to the Westmoreland County Conservation Compliance Officer with certain commentary. By letter of February 13, 1995, Schmitt sent a letter to the MLED developer as to Phase II providing a project status and time frame for commencement of construction. Thereafter, Schmitt provided a requested Phase II lot layout to the MLED developer as well as a copy of an Earth Disturbance Inspection from DER. After the Planning Commission on May 2, 1995 gave final approval for MLED subdivision, the matter was considered by the Supervisors on May 19, 1995 wherein a question arose as to downspouts. Schmitt responded that the situation was pre- existing and "grandfathered in." On that date, Schmitt advised the Code Enforcement Officer that all necessary approvals had been received and there were no outstanding violations as to Phase I pertaining to erosion and sedimentation control. On May 24. 1995, GTE Engineer Glasser provided the Supervisors with a grading permit application for MLED which contained a handwritten notation by Schmitt. On July 15, 1994, the Hydraulic Engineer for WCD wrote to Schmitt advising that the MLED Phase II plans were reviewed and erosion control requirements were met. In a follow -up letter, Schmitt was advised that a review of the Storm Water Management Plan submitted by MLED Phase II did not contain appropriate plan elements. Schmitt responded and requested an extension of thirty days as to the request for additional information. In a letter dated October 23, 1995 to a Supervisor, Schmitt stated his intention to allow the MLED contractor to pave on the scheduled date as long as temperature requirements were met. The Supervisors unanimously Schmitt, 95- 007 -C2 Page 29 granted a variance for Phase I at a meeting in which Schmitt provided commentary as to a cul -de -sac street. As to MLED, GTE billed the developer for private engineering work in the amount of $50,200.25 for the period July 31, 1991 through July 7, 1995. GTE, as Municipal Engineer for Unity Township relative to the MLED development, billed the Township in the amount of $15,138.13. The foregoing amount was in addition to the standard retainer GTE received from Unity Township. From December, 1989 through October, 1995, Schmitt worked 254 hours on the MLED project. Turning now to the Mountain View Village Estates Development (MVVED), the proposal was for 10 Tots on a 40 acre tract. By letter dated November 15, 1991, Timothy Bolton, Engineer, requested payment from Schmitt for his engineering services relative to the development. The MVVED Plan was prepared by Jan Ernst, P.E. as a subcontractor for GTE. The Plan included a GTE logo. A second Plan for MVVED was prepared by a GTE engineer and included the GTE logo. The Township records reflect that the Land Subdivision and Development Application dated February 3, 1992 for MVVED was signed and submitted by Dan Schmitt, GTE. The Planning Commission approved the MVVED preliminary plans on February 4, 1992 after commentary by Schmitt who appeared as the developer's engineer. Schmitt advised the developer that preliminary approval had been obtained but certain items needed clarification. That letter was sent by Schmitt in his capacity as Planning Commission Engineer. After the Township Board granted preliminary approval for the MVVED plan on February 13, 1992, the Board granted final approval on March 3, 1992 contingent upon receiving DER approvals and a highway occupancy permit. Mark Gera was in attendance at that Board meeting as the engineer. By letter dated May 5, 1992, Schmitt, P.E., GTE as private engineer, notified the developer of the costs. When the Supervisors agreed to extend the sewer line for MVVED at a May 14, 1992 meeting, the role call reflected the attendance of Schmitt from GTE. On September 23, 1992, Schmitt provided the developer with construction drawings. An agreement was entered between Unity Township and MVVED developer on June 10, 1994 which required certain actions to be taken by the private engineer for the developer and the Municipal Engineer. By a June 23 ,1994 FAX, the developer notified Schmitt of a proposed installation of a stone wall relative to the MVVED subdivision. Subsequently, Schmitt submitted a pay estimate to the developer for the MVVED development as reviewed and approved. By letter dated July 27, 1995, GTE submitted a letter to the developer for payment from Monzo Construction which had been reviewed and approved by Schmitt, P.E., GTE. In a September 28 ,1995 letter to the developer, Schmitt advised that the performance bond posted with the Township could be reduced by a certain amount. On November 9, 1995, the Supervisors gave approval to revise the plan for MVVED, with Schmitt present. The Planning Commission, with Schmitt present, approved the MVVED request to relocate a lot line on November 8, 1995. Prior to that meeting, the Engineer and Zoning Officer composed an agenda for distribution to the Planning Commission Members to assist in their decision - making. As to the MVVED development, GTE received $19,828.25 from the Township in addition to the monthly retainer. In a private capacity, GTE billed the developer Schmitt, 95- 007 -C2 Page 30 $9,927.50 for private engineering work relative to the MVVED development. Schmitt spent 107 hours on the MVVED development in his capacity as an employee of GTE. For the years 1990 through 1995, GTE invoiced Unity Township for engineering services, as detailed in Fact Finding 126, in addition to the monthly retainer. When a Unity Township Supervisor in 1984 requested the Solicitor to check with this Commission regarding GTE's dual role as private engineer and Municipal Engineer, Advice of Counsel 84 -600 was issued in response to that request. The Advice directed that the engineer could not use his position to obtain business in a private capacity, could not use confidential information, must refrain from participating in discussions, review or recommendations relating to clients that he had served as a private engineer, must disclose his relationship and could not review as Municipal Engineer any plans on which he worked as a private engineer. On January 1, 1996, the Township and GTE entered into a formal written agreement concerning engineering services for the Township. That agreement provided for a retainer plus billing on a job basis. In addition, the agreement contained a specific prohibition against dual representation by GTE of private clients and the Township. Prior to that agreement, Schmitt, as a representative of GTE, reviewed, inspected and approved plans submitted by individuals for projects which he and GTE were involved in a private capacity for compensation. Schmitt was involved in - projects noted above both in a public and private capacity. GTE has now developed a policy against undertaking any private work which would place the firm in a multiple representation capacity. Having summarized the above relevant facts, we must now determine whether the actions of Schmitt violated Section 3(a) of Act 9 of 1989. In order to establish a violation, Section 3(a) requires a use of the authority of office or confidential information by a public official /employee for the private pecuniary benefit of himself, a member of his immediate family, or business with which he or a member of his immediate family is associated. As to each of the three developments outlined above, we find that the actions of Schmitt transgressed Section 3(a) of Act 9 of 1989. It is clear that there was a use of authority of office by Schmitt, as engineer for both Unity Township and the Planning Commission, in that he engaged in numerous activities as to participation, review, and recommendations relative to three developments. The record reflects also numerous actions by Schmitt as an engineer employed by GTE in performing private services for the very same developers. In fact, there are many instances in our review where we cannot determine whether a given action by Schmitt was on behalf of the municipality or on behalf of GTE as a private engineer for the developer. The answer to our own query is the inescapable conclusion that Schmitt was indeed engaged in a simultaneous representation of two parties, the municipal body and the private developer as to the same projects, which is absolutely a conflict. On numerous prior occasions we have ruled that engineers are prohibited from engaging in such conduct under Section 3(a) of the Ethics Law. Ferrero, Order 720; Bakowicz, Order 910. Clearly, such action did result in a private pecuniary benefit to Schmitt and to GTE, a business with which he as well as a member of his immediate family are associated in that Schmitt's brother has an ownership interest in GTE. 65 P.S. §402. Schmitt, 95- 007 -C2 Page 31 Since the record in this case does not provide any evidence of intent to violate the Act, we must conclude that the violation was unintentional. However, we are at a Toss to understand Schmitt's insensitivity to the inherent nature of the conflict in simultaneously working for and representing the developers while performing reviews as Municipal Engineer on the very same projects. Since this problem should be resolved in light of the fact that Unity Township has an agreement with GTE which now prohibits such dual representation, we will take not further action regarding the above violations and any other potential violations contained in the Stipulation regarding Dan Schmitt, Ed Schmitt, Mark Gera, GTE, its employees, agents, and /or subcontractors. Lastly, we note that the parties have filed a Stipulation of Findings and Consent Agreement which set forth a proposed resolution of the allegations. We believe that the Consent Agreement is the proper disposition for this case based upon our review as reflected in the above analysis and the totality of the facts and circumstances. IV. CONCLUSIONS OF LAW: 1. Dan Schmitt, as Engineer for Unity Township and Unity Township Planning Commission, Westmoreland County, is a public official /employee subject to the provisions of Act 9 of 1989. 2. Dan Schmitt unintentionally violated Section 3(a) (Act 9 of 1989) when he used the authority of office to obtain a private pecuniary benefit for himself and a business with which he is associated through his participation as Municipal Engineer of plans in Woodland Estates, which were prepared by an engineering firm with which he is employed and in which his brother has a financial interest. 3. Dan Schmitt unintentionally violated Section 3(a) (Act 9 of 1989) when he used the authority of office to obtain a private pecuniary benefit for himself and a business with which he is associated, through his participation as to development plans in Mountain Laurel Estates, which were prepared by an engineering firm with which he is employed and in which his brother has a financial interest. 4. Dan Schmitt unintentionally violated Section 3(a) (Act 9 of 1989) when he used the authority of office to obtain a private pecuniary benefit for himself and a business with which he is associated, through his participation as to development plans in Mountain View Village, which were prepared by an engineering firm with which he is employed and in which his brother has a financial interest. In Re: Dan Schmitt ORDER NO. 1020 File Docket: 95- 007 -C2 Date Decided: 8/27/96 Date Mailed: 9/6/96 1. Dan Schmitt, as Engineer for Unity Township and Unity Township Planning Commission, Westmoreland County, unintentionally violated Section 3(a) (Act 9 of 1989) when he used the authority of office to obtain a private pecuniary benefit for himself and a business with which he is associated through his participation as Municipal Engineer of plans in Woodland Estates, which were prepared by an engineering firm with which he is employed and in which his brother has a financial interest. 2. Dan Schmitt unintentionally violated Section 3(a) (Act 9 of 1989) when he used the authority of office to obtain a private pecuniary benefit for himself and a business with which he is associated, through his participation as to development plans in Mountain Laurel Estates, which were prepared by an engineering firm with which he is employed and in which his brother has a financial interest. 3. Dan Schmitt unintentionally violated Section 3(a) (Act 9 of 1 989) when he used the authority of office to obtain a private pecuniary benefit for himself and a business with which he is associated, through his participation as to development plans in Mountain View Village, which were prepared by an engineering firm with which he is employed and in which his brother has a financial interest. 4. We will take no further action regarding the above violations and any other potential violations contained in the Stipulation regarding Dan Schmitt, Ed Schmitt, Mark Gera, Gibson - Thomas Engineering Company, Inc., its employees, agents, and /or subcontractors. BY THE COMMISSION, dY�AL & Pfuo.' DANEEN E. REESE, CHAIR