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HomeMy WebLinkAbout1067 DietrichIn Re: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 Thomas Dietrich File Docket: X -ref: Date Decided: Date Mailed: Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Boyd E. Wolff Julius Uehlein This is a final adjudication of the State Ethics Commission. 96- 040 -C2 Order No. 1067 10/2/97 10/14/97 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 2t seq., by the above named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). 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. Dietrich, 96- 040 -C2 Page 2 I. ALLEGATION: That Thomas Dietrich, a public official /public employee, in his capacity as a Sewage Enforcement Officer, Zoning Enforcement Officer and Ordinance Enforcement Officer for Centre Township, Berks County, violated the following provisions of the State Ethics Act (Act 9 of 1989) when he used the authority of his office for a private pecuniary benefit by participating in discussions, actions and /or decisions relating to the Brookewood Heights Development at a time when he was involved in negotiations with the owners of that development over sewer line placement through his personal property. Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.S. §403(a). Section 3. Restricted activities (b) No person shall offer or give to a public official, public employee or nominee or candidate for public office or a member of his immediate family or a business with which he is associated, anything of monetary value, including a gift, loan, political contribution, reward or promise of future employment based on the offeror's or donor's understanding that the vote, official action or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. 65 P.S. §403(b). 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. II. FINDINGS: 1. Thomas Dietrich has simultaneously been employed by Centre Township, Berks County, since 1979 in the following capacities. Dietrich, 96- 040 -C2 Page 3 a. Sewage Officer. b. Building Officer. c. Zoning Officer. d. Ordinance Enforcement Officer. 2. Dietrich was simultaneously appointed to these positions at the annual reorganization meetings by the Centre Township Board of Supervisors. 3. Dietrich's compensation for all positions is set by the Board of Supervisors in the form of fees and an hourly wage. 4. In 1993 and 1994 the rate of compensation Dietrich received for all other activity in his capacity as the Sewage Enforcement Officer and Building /Zoning Officer was $ 13.50 per hour. 5. Dietrich reports to the Township Board of Supervisors in his capacity as the Ordinance Enforcement Officer. 6. The duties and responsibilities of an Ordinance Enforcement Officer set by the Centre Township Board of Supervisors are as follows: a. Enforces and manages all Ordinances within the Township, except those specifically excluded by the Board of Supervisors at a stated meeting. b. Assists the Board of Supervisors in the development and maintenance. of Township Ordinances. c. Maintains current Ordinance Book containing all ordinances within . the township. d. Inspects buildings, property and /or equipment as required by the existing Ordinances to insure compliance with all provisions. e. Inspects buildings, property, and /or equipment suspected to be in violation of an Ordinance upon the request by the Board of Supervisors. f. Provides Engineering and Technical counsels to the Board of Supervisors on an as needed basis. Implements the Pennsylvania Sewage Facilities Act as required by the Department of Environmental Resources within the township. h. Maintains filing system of all permits applied for and issued, all complaints leading to violations received and investigated, and all subdivision plans submitted to the township. i. Assures the proper documentation of all inspections conducted within the township. g. Dietrich, 96- 040 -C2 Page 4 Recommends operating budget and fee schedules to the Board of Supervisors for adoption. k. Maintains the Computer Operating System within the department including recommendations for hardware and software upgrades. I. Performs other duties as requested. 7. As Sewage Enforcement Officer Dietrich has the power and duty to issue, deny and revoke sewer permits, and to take all other actions necessary to administer and enforce Act 537 which is the Sewage Facilities Act. a. Dietrich's duties as Sewage Enforcement Officer includes handling the septic system permitting process. b. Dietrich's specific functions as Sewage Enforcement Officer include the review of soil profiles (deep probes) and percolation tests and the issuance of permits. c. Dietrich's duties were limited to on -lot septic systems and did not include authority over sewer plants. 8. Chapter 72 of the Sewage Facilities Act provides in part that a Sewage Enforcement Officer may not conduct a test, issue a permit, participate in the official processing of an application or official review of a planning module for an individual or community on -lot sewage system in which the Sewage Enforcement Officer, a relative of the Sewage Enforcement Officer, a business associate of the Sewage Enforcement Officer, other than the local agency, has a financial interest. a. A financial interest includes full or partial ownership, agreement or option to purchase, a leasehold, mortgage or another financial or proprietary . interest in; or serving as an officer, director, employee, contractor, - consultant, or another legal or fiduciary representative of a corporation, partnership, joint venture or other legal entity which has a property interest in any of the following: (1) One or more Tots to be served by the system or systems. (2) The development or sale of the lots to be served by the system or systems. (3) A contract, either written or oral, to perform a service in the development of one or more of the lots to be served by the system. The service may be before or after the fact of development and may include professional as well as other services. (4) A contract, either written or oral, to sell, plan, design, construct, install or provide materials or component parts for the system. 9. In 1980, Jay Brossman submitted the Brookewood Heights Subdivision plan to the Centre Township Supervisors for approval. Dietrich, 96- 040 -C2 Page 5 a. The original plan for Brookewood Heights was a 103 acre tract subdivided into 59 lots. b. The plan was approved by the supervisors sometime after 05/15/81 when DER approved the sewer module. 10. The Brookewood Heights Subdivision did not have any type of centralized sewage system. a. Prior to building any homes on the Tots, probe and percolation tests had to be conducted to test the suitability of the soil for an on -lot sewage system. 11. In his capacity as Sewage Enforcement Officer (SE0) /Ordinance Enforcement Officer (OEO), Dietrich conducted probe and percolation tests for the Brookewood Heights Subdivision. a. Dietrich submitted a field report to the Centre Township Planning Commission on February 4, 1981, regarding soil testing at Brookewood Heights. 't 2. Dietrich filed site investigation reports on each lot he conducted a percolation test. a. The tests were conducted on 07/13/81; 10/08/81; 10/08/81; 06/10/82; 02/10/83; and 05/18/83. 13. In 1983, the Department of Environmental Resources required that percolation tests be done on Tots that had elevated sound mounds. 14. Dietrich filed a report with the Centre Township Board of Supervisors on' December 8, 1983, regarding percolation tests that were done at the Brookewood Heights Subdivision. a. A total of 59 lots were tested. b. The results of Dietrich's tests indicated only 25% were suitable for on -lot sewage systems. c. Dietrich recommended that the development was not suitable for on -lot sewage systems. d. This report was in agreement with the DER report. 15. Based on the soil analysis conducted by DER and the change in requirements for on -lot systems, the developers of the Brookewood Heights Subdivision decided to try other options to develop a sewer system. a. On April 11, 1990, Curt Frantz, engineer for developer Jay Brossman, submitted a Planning Module for Land Development on Brookewood Heights II & Ill to the Centre Township Supervisors for a community sewage system. Dietrich, 96- 040 -C2 Page 6 16. On February 24, 1992, Curt Frantz submitted a planning module to build a sewage treatment plant at Brookewood Heights I, Phase II. a. This plan was advocated due to the developer's inability to get on -lot septic systems approved. 17. To approve the developer's request to build a sewage treatment the township created Ordinance No. 34 -1 -1987. a. Ordinance 34 -1984 [sic] was approved by the township on June 8, 1993. b. The ordinance was an Installation and Maintenance Agreement for Community Sewage Wastewater Treatment and Disposal System. c. The agreement was made by Jay Brossman of Brookewood Heights, the Centre Township Supervisors and Centre Township Municipal Authority. 18. The sewage treatment plant was to be located at the subdivision of Brookewood Heights I, Phase II on a 31.88 acre tract of land on Sleepy Hollow Road. a. The sewage treatment facility was going to serve 18 lots. 19. The location of the sewage treatment plant was proposed by Curt Frantz, Engineer for the developer and agreed to by the township. a. Frantz designed the location of the sewage collection lines leading to the sewage treatment plant. 20. The design of the sewer treatment system has collection lines traveling through Lot 20 of Brookewood Heights Subdivision, which is owned by Thomas . Dietrich. a. Lot 20 is located off of Sleepy Hollow Road. 21. Thomas Dietrich and his wife Roseanne Dietrich purchased Lot 20 from the developer of the Brookewood Heights Subdivision on April 15, 1986, for $ 10,000. a. Brossman Homes contracted with the Dietrich's to build a home at 1055 Sleepy Hollow Road. 22. Robert Bentz, Centre Township alternate sewage enforcement officer, conducted the percolation and probe tests at Lot Number 20. a. A sewer permit was issued on July 25, 1986, with the name of the applicant listed as Jay Brossman. 23. In his capacity as Ordinance Enforcement Officer, Dietrich provides the board of supervisors with monthly reports regarding his activities as Sewage Enforcement Officer, Zoning Officer, Building Inspector and Ordinance Enforcement Officer for Centre Township. Dietrich, 96- 040 -C2 Page 7 24. Dietrich submitted monthly reports to the supervisors which included information relative to Brookewood Heights and the sewage plant as follows: a. March 10, 1993: February Report. Brookewood Heights Subdivision, Sleepy Hollow Drive - No change. b. July 14, 1993: June Report. Brookewood Heights Subdivision, Sleepy Hollow Drive - Second review, have concerns about future ownership of sewage plant. c. August 11, 1993: July Report. Brookewood Heights Subdivision, Sleepy Hollow Drive Should discuss access to Lot 19 for concerns about fire protection. d. September 4, 1993: August Report: Brookewood Heights Subdivision, Sleepy Hollow Drive - waiting for re- submission. e. December 12, 1995: November Report. Brookewood Heights, Sleepy Hollow Drive, recommend approval of the module. f. February 19, 1996: January Report. Brookewood Heights, Sleepy Hollow Drive - Module sent to DEP. g. April 1, 1996: March Report. Brookewood Heights, Sleepy Hollow Drive - Module approved by DEP. h. May 1, 1996: April Report. Brookewood Heights, Sleepy' Hollow Drive Module approved by DEP - Working on agreements. 25. The Centre Township Board of Supervisors took actions as follows regarding the Brookewood Heights Subdivision sewer. a. August 11, 1993: b. July 12, 1995: Dietrich reports on reasons for DER's denial of Brookewood Heights Planning Module including existence of wetlands and access to Lot 19. At Dietrich's suggestion, the board will inform the Joint Planning Commission of opposition to dry hydrant fire system for Lot 19. Dietrich present. Revised preliminary sub - division plan requested, motion approved granting 60 day extension until 09/13/95. Dietrich, 96- 040 -C2 Page 8 Dietrich present at this meeting. c. September 13, 1995: Revised planning module ready for DER review, easement agreement with Tom Dietrich needs to be completed. Supervisors, Solicitor and Ordinance Enforcement Officer, (Dietrich) satisfied with progress, no additional time limit extension required. Dietrich present. d. December 13, 1995: Motions passed approving the sewer planning module and preliminary subdivision plan for Brookewood Heights. Dietrich present. e. October 9, 1996: Motion approved granting extension until 12/11/96 for Brookewood Heights to obtain DEP permits and Improvements Agreement. Dietrich present. f. December 11, 1996: Motion carried to reject the Brookewood Heights Subdivision. 26. Dietrich, in his capacity as Sewage Enforcement Officer /Ordinance Enforcement - Officer, reviewed the Brookewood Heights plans and provided comments and recommendations to the Centre Township - Centre Borough Joint Planning Commission. a. This included providing reports and recommendations during the planning and approval stage of the Brookewood Heights sewer plant. 27. Dietrich reviews, comments and recommends to the Joint Planning Commission regarding the Brookewood Heights Subdivision include the following: a. August 13, 1989: Discussion centered on prior submission of Planning Module to DER, a maintenance agreement for the sewer system and that the right -of -way agreement with Tom Dietrich must be completed. Letter to Planning Commission advising that Brookewood Heights II and III must be incorporated into one subdivision due to sewage plant, one subdivision cannot be approved with the other; strongly recommends rejection of the plant and a re submittal. b. March 20, 1990: Letter to Planning Commission advising that paperwork must be sent to DER for major Dietrich, 96- 040 -C2 Page 9 c. February 13, 1993: module submission; initial probes analyzed on 03/19/90; Lot 19 does not have proper access as required by ordinance; and suggests a revised preliminary plan. Letter to Planning Commission advising of review of plans, in part: The sanitary sewer line and easement must be dimensionally located on each lot. The proposed plant location must be dimensionally located on the plan. The sanitary sewer averages from a depth of five feet to eighteen feet below grad. [sic] Installation of this line in these soils will require extensive shoring operations and incur substantial costs. An alternate approach should be investigated. Improvements and driveway including property contours shall be shown for Lot 20. Access to Lot 19 across Lot 18 will not be permitted. Full sewer plant design must be submitted with plans. Full details of lot sewer connection including interception point on lot must be detailed. d. February 17, 1993: Meeting of Planning Commission. Contents of , 02/13/93 letter presented. Letter to be forwarded to the developer. e. June 16, 1993: Meeting of the Planning Commission. A 120 day extension request approved; revised plans accepted for review by Tom Dietrich and Jim Fisher (Township Engineer). f. July 21, 1993: Planning Commission Meeting. Review letters of township Engineer and Tom Dietrich were read. Dietrich's letter of review references Dietrich's letter of 02/17/93 (See Finding No. 41(c)) [sic] to the Planning Commission. 28. The Joint Planning Commission took the following actions regarding the Brookewood Heights Subdivision following presentations and /or recommendations of Dietrich. a. January 23, 1994: Wetland study to be provided to SEO (Dietrich); sewer line crosses Lot 20, a private lot (Dietrich's), signed agreement for crossing the lot shall be provided. Revised plans will have to be submitted. Dietrich, 96- 040 -C2 Page 10 b. c. November 16, 1994: Revised plans submitted to be reviewed by 0E0/SEO (Dietrich) and township engineer. Review of Dietrich's report discussed and plan deficiencies from Dietrich's report noted the following, in part: Wetland study shall be provided to the SEO and included in the module. DER crossing permit shall be provided. The sewer right -of -way shall be dimensionally located on Tots 19 & 20 and wherever the R -0 -W does not match a lot line. Lots 25, 27 & 20 shall have the option presently, or at any time in the future, to connect into the sewage plant, and the plant shall be sized accordingly. This option shall be stated on the plan. The sewer plant land shall be defined and access shown on the plan. Access to the sanitary sewer collection system (west side) shall be provided via easements from Sleepy Hollow Drive. December 21, 1994: d. March 15, 1995: e. May 16, 1995: f. June 21, 1995: g. July 19, 1995: August 16, 1995: The existing buildings, wells and sewage systems shall be shown for lots 20 and 25. The abandoned well, septic system and proposed dwelling shall be shown on lot 26. Sewer line crosses lot 20, a private lot, signed agreement for crossing shall be provided. A 230 day extension requested by developer' due to pending sewer agreements. Dietrich expresses concern over the type of -fill proposed for the subdivision and stressed that this needs constant supervision and monitoring. Motion approved to recommend to the supervisors to not grant preliminary plan approval until there has been a major advancement with the plans. Reported that the supervisors did not approve preliminary plans and granted an extension until 09/13/95. Attorney for the developer provides an update and noted that an agreement had been reached with Tom Dietrich to cross his property with the sewage treatment lines. Dietrich, 96- 040 -C2 Page 11 Dietrich stated the agreement is only verbal, nothing in writing. i. November 15, 1995: Updated [sic] provided by developer's attorney, an easement agreement between the developer and Tom Dietrich is being reached. j. April 17, 1996: Development plans given final approval. 29. The developer obtained an easement from Dietrich to locate the sewer collection lines on Dietrich's property. 30. At the Centre Township Planning Commission Meeting of August 16, 1995, the attorney for the developer stated an agreement was being made between the developer and Thomas Dietrich on the sewer lines crossing Dietrich's property. 31. On November 21, 1995, an Easement Agreement and Agreement of Sale was entered into between Jay Brossman and Bart Wenrich, developers, and Thomas and Roseanne Dietrich. a. The Easement Agreement provided that the Dietrich's permitted the developer to construct, install, maintain and use a sanitary sewage treatment pipe on their property for the disposal of sanitary sewage waste emanating from the Brookewood Heights Subdivision. 32. The Agreement of Sale made between the developer and Thomas and Roseanne Dietrich was contingent upon the Dietrich's signing the Easement Agreement. a. The sales agreement provided that the developer was to pay the Dietrich's $14,000 of which $4,000 would be paid directly to the , Dietrich's. b. The remaining $10,000 would be used by the Dietrich's as a payment to the developer for Dietrich annexing Lot 19A which borders the Dietrich's property. c. The Agreement of Sale was signed by Thomas and Roseanne Dietrich. d. The agreement was reviewed by attorneys for Dietrich and the developer and the township solicitor. 33. At the Centre Township Board of Supervisors Meeting on December 13, 1995, the supervisors approved the Preliminary Subdivision Plan and Sewage Planning Module for Brookewood Heights I, Phase II. a. The approval was given after recommendations made by Dietrich that the module was complete and the township engineer [sic]. 34. On March 12, 1996, Deirdre Lehman, Water Quality Specialist for the Department of Environmental Protection, approved the sewage treatment plant for Brookewood Heights I, Phase II, contingent upon all the necessary permits being obtained. Dietrich, 96- 040 -C2 Page 12 35. On April 7, 1996, the Centre Township Planning Commission gave final approval for the Brookewood Heights plan. 36. On June 26, 1996, the township granted an extension of time for the approval of Brookewood Heights II. a. The extension was made so that the developer could obtain all necessary permits from the Department of Environmental Protection so he could get the letter of credit finalized for the Improvements Agreement. 37. In May of 1996 the township billed the Brookewood Heights developer a total of $3,325.25 for costs associated with the Brookewood Heights development. a. This included $614.25 for Ordinance Enforcement Officer charges. 38. Ordinance Enforcement Officer Department charges for the Brookewood Heights Subdivision totaled $614.25 between 1993 and May 23, 1996. 39. The following fees were paid to Dietrich in his capacity as the Ordinance Enforcement Officer for Centre Township in regard to matters with the Brookewood Heights Subdivision. These fees were part of the $614.25 charged to the developer. Date Activity a. 02/13/93 02/17/93 06/30/93 08/14/93 08/14/93 10/12/94 11/06/94 11/21/94 12/21/94 03/15/95 09/13/95 09/16/95 05/23/96 Preliminary Review 4.0 Discussion at Planning Comm. Mtg. 1.0 Module Review 2.0 Discuss Sewage with Engineer 1.0 Lot 19 Access Letter 1.0 Review Sewage Agreement 1.0 Planning Commission Meeting 1.0 Review 2.0 Comments at Planning Comm. Mtg. 1.0 Discussion at Planning Comm. Mtg. 1.0 Rec'd Module and Planning Comm. Mtg. 1.0 Module Review 2.0 Close File 1.0 Hours fee TOTAL $54.00 $13.50 $27.00 $13.50 $13.50 $13.50 $13.50 $27.00 - $1350 $14.00 $14.00 $28.00 $14.00 $ 259.00 Board of 40. On December 11, 1996, Wenrich asked the Centre Township Supervisors for a one month extension. a. The request was rejected by the township board of supervisors. 41. In January, 1997, Dietrich began recusing himself on all matters involving the Brookewood Heights Subdivision. 42. Dietrich, as a Centre Township Sewage Enforcement Officer, participated in the review process of the proposed Brookewood Heights Sewer Treatment Plant at a time when he was negotiating with the developer to have collection lines cross his property. Dietrich, 96- 040 -C2 Page 13 a. Dietrich participated in these actions after consulting with the township solicitor. b. The solicitor advised Dietrich that he could participate in the review since the decision to approve or reject the module or plan would lie with the board of supervisors. c. Based on the advice of the solicitor, Dietrich continued to review the module and issue reports to the board of supervisors and Planning Commission. 43. Dietrich received a total of $259.00 for duties related to the review of the Brookewood Heights subdivision sewer plant plan. a. The $14,000 was not paid to Dietrich once the board of supervisors rejected the sewer plant plan. III. DISCUSSION: At all times relevant to this matter, the Respondent, Thomas Dietrich, hereinafter Dietrich, has been a public official /public 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, gt fig. The allegation is that Dietrich violated Section 3(a) and Section 3(b) of the Ethics Law when he used the authority of his office for a private pecuniary benefit by participating in discussions, actions, or decisions relating to the Brookewood Heights Development at a time when he was involved in negotiations with the owners of that development over sewer line placement through his own property. Pursuant to Section 3(a) of the Ethics Law quoted above, 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 quoted above. Section 3(b) of Act 9 of 1989, quoted above, provides in part that no person shall offer to a public official /employee anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Having noted the issues and applicable law, we shall now summarize the material facts. Since 1979, Dietrich has simultaneously been employed by Centre Township as a Sewage Enforcement Officer, Building Officer, Zoning Officer, and Ordinance Enforcement Officer. The Centre Township Board of Supervisors sets Dietrich's compensation for all of these positions. Dietrich provides monthly reports to the Board of Supervisors regarding his activities in each of his capacities. As an Ordinance Enforcement Officer, Dietrich's duties and responsibilities include: assisting the Board of Supervisors in the development and maintenance of Township Ordinances; enforcing and managing Township Ordinances; inspecting buildings, property and /or equipment as required by the Ordinances to insure Dietrich, 96- 040 -C2 Page 14 compliance with all provisions; inspecting buildings, property, and /or equipment suspected to be in violation of an Ordinance, as requested by the Board; providing Engineering and Technical counsels to the Board of Supervisors on an as needed basis; and implementing the Pennsylvania Sewage Facilities Act within the Township as required by the Department of Environmental Resources (now the Department of Environmental Protection). As Sewage Enforcement Officer, Dietrich handles the septic system permitting process. Dietrich has the power and duty to issue, deny, and revoke sewer permits, and to take all other actions necessary to administer and enforce the Sewage Facilities Act. The stipulated Findings state that Dietrich's duties were limited to on -lot septic systems and did not include authority over sewer plants (Finding 7c). The parties have stipulated that the Sewage Facilities Act prohibits a Sewage Enforcement Officer from conducting a test, issuing a permit, participating in the official processing of an application or official review of a planning module for an individual or community on -lot sewage system in which the Sewage Enforcement Officer, a relative of the Sewage Enforcement Officer, or a business associate of the Sewage Enforcement Officer, other than the local agency, has a financial interest. Financial interest includes, inter Dia, full or partial ownership of one or more Tots to be served by the system or systems. This case involves a particular development known as the Brookewood Heights Subdivision. The Brookewood Heights Subdivision plan was submitted to the Centre Township Supervisors for approval in 1980, by developer Jay Brossman. The plan was approved by the Supervisors sometime after May 15, 1981; when DER approved the sewer module. The Brookewood Heights Subdivision did not have any type of centralized sewage system, and before homes could be built on the lots, probe and percolation. tests had to be conducted to test the suitability of the soil for on -lot sewage systems. In his capacity as Sewage Enforcement Officer /Ordinance Enforcement Officer for the Township, Dietrich conducted probe and percolation tests for the Brookewood Heights Subdivision and also submitted various reports to the Centre Township Planning Commission and the Centre Township Board of Supervisors. On December 8, 1983, Dietrich filed a report with the Centre Township Board of Supervisors which recommended that the development was not suitable for on -lot sewage systems. Dietrich's report was in agreement with a report by the Department of Environmental Resources (DER). On April 15, 1986, Dietrich and his wife purchased Lot 20 from the developer of the Brookewood Heights Subdivision for $ 10,000. Lot 20 is located off of Sleepy Hollow Road. The Dietrichs also entered into a contract with Brossman Homes to build a home at 1055 Sleepy Hollow Road. The alternate Sewage Enforcement Officer for Centre Township conducted the percolation and probe tests for Lot 20, and a sewer permit was issued on July 25, 1986 with Jay Brossman named as the applicant. At some point, based upon the soil analysis conducted by DER and the change in requirements for on -lot systems, the developers of the Brookewood Heights Subdivision decided to try other options to develop a sewer system. In April, 1990 . Dietrich, 96- 040 -C2 Page 15 — approximately four years after Dietrich and his wife had purchased Lot 20 of the Brookewood Heights Subdivision — Curt Frantz, engineer for developer Jay Brossman, submitted a Planning Module for Land Development on Brookewood Heights II & III to the Centre Township Supervisors for a community sewage system. On February 24, 1992, Frantz submitted a planning module to build a sewage treatment plant at Brookewood Heights I, Phase II. This plan was advocated due to the developer's inability to get on -lot septic systems approved. The developer's request to build a sewage treatment plant was approved by an Ordinance of the Township on June 8, 1993. The ordinance was an "Installation and Maintenance Agreement for Community Sewage Wastewater Treatment and Disposal System," made among Jay Brossman of Brookewood Heights, the Centre Township Supervisors, and the Centre Township Municipal Authority. The treatment plant was to be located at the Subdivision of Brookewood Heights I, Phase II on a tract of land on Sleepy Hollow Road. The sewage treatment facility was going to serve 18 lots. The location of the plant was proposed by Curt Frantz, engineer for the developer, and was agreed to by the Township. It was Frantz who designed the location of the sewage collection lines leading to the sewage treatment plant. The design of the sewer treatment system provided for collection lines to travel through Lot 20 of Brookewood Heights Subdivision — the very lot owned by Dietrich and his wife. Between March 10, 1993 and May 1, 1996, eight of Dietrich's monthly reports to the Supervisors included information related to Brookewood Heights and the sewage plant. Dietrich's monthly reports, outlined at Finding 24, included, inter alia the following: (1) concerns about future ownership of the sewage plant (report of July 14, 1993); and (2) a recommendation for approval of the module (report of December 12, 1995). The Centre Township Board of Supervisors took various actions regarding the Brookewood Heights Subdivision sewer system, as set forth at Finding 25. The stipulated Finding reflects that Dietrich was present at such meetings with the possible exception of the December 11, 1996 meeting. At the July 12, 1995 and September 13, 1995 meetings, discussion included the need for an agreement with Dietrich for a right of way /easement related to the sewer system. At the December 13, 1995 meeting, following Dietrich's recommendation for approval of the module, motions passed approving the sewer planning module and preliminary subdivision plan for Brookewood Heights (But eventually, as noted below, the Board of Supervisors rejected the sewer plant plan). As Sewage Enforcement Officer /Ordinance Enforcement Officer, Dietrich also reviewed the Brookewood Heights plans and provided comments and recommendations to the Centre Township - Centre Borough Joint Planning Commission. Dietrich's reviews, comments, and recommendations to the Joint Planning Commission regarding the Brookewood Heights Subdivision between August 13, 1989 and July 21, 1993, are set forth at Finding 27. By letter to the Planning Commission dated February 3, 1993, Dietrich advised as to requirements for the location of the proposed plant, restrictions on access with regard to lots 18 and 19, and the location of the sanitary sewer line and easement on each lot. Finding 28 outlines actions taken by the Joint Planning Commission regarding the Brookewood Heights Subdivision following presentations and /or recommendations of Dietrich. The actions that are set forth occurred from January, 1994 through April 17, 1996. Some of the actions taken by the Joint Planning Commission were Dietrich, 96- 040 -C2 Page 16 specifically directed at requiring a signed agreement for the developer to cross Lot 20 — Dietrich's private lot. Furthermore, per Dietrich's report, three Tots — including Lot 20 owned by Dietrich — were to have the option to connect into the sewage plant at any time (Finding 28c). The plant was to be sized to allow for such connection, and the option was to be stated on the plan. The Joint Planning Commission did not give final approval to the development plans until April 17, 1996, after an easement agreement had been reached between the developers (Jay Brossman and Bart Wenrich) and the Dietrichs. The Easement Agreement and Agreement of Sale were entered into by the Dietrichs and the developers on November 21, 1995. The Easement Agreement provided that the Dietrichs permitted the developer to construct, install, maintain, and use a sanitary sewage treatment pipe on their property for the disposal of sanitary sewage waste emanating from the Brookewood Heights Subdivision. The Agreement of Sale between the developers and the Dietrichs was contingent upon the Dietrichs signing the Easement Agreement. The Agreement of Sale provided that the developer was to pay the Dietrichs $14,000, of which $4,000 was to be paid directly to the Dietrichs, and of which $10,000 would be used by the Dietrichs as a payment to the developer for annexing Lot 19A which borders the Dietrichs' property. Approximately three weeks after the Easement Agreement and Agreement of Sale had been entered into by the developers and the Dietrichs, Dietrich submitted a monthly report to the Centre Township Board of Supervisors in which he recommended approval of the module for the Brookewood Heights Subdivision, and the Centre Township Board of Supervisors approved the preliminary subdivision plan and sewage planning module for Brookewood Heights I, Phase II. The approval was given after recommendations made by Dietrich that the module was complete. On March 12, 1996, Deidre Lehman, a Water Quality Specialist for the Department of Environmental Protection (DEP), approved the sewage treatment plan' for Brookewood Heights 1, Phase 11, contingent upon all of the necessary permits being,_ obtained. Thereafter, on April 7, 1996, the Centre Township Planning Commission gave final approval for the Brookewood Heights plan. Subsequently, the Township granted extension(s) of time for the approval of Brookewood Heights II, so that the developer could obtain necessary permits from DEP and get the letter of credit finalized for the Improvements Agreement. Although it is not clear from the Stipulation of Findings what went wrong, the sewer plant plan was ultimately rejected by the Centre Township Board of Supervisors. As a result, the $14,000 was not paid to Dietrich by the developers. The parties have stipulated that Dietrich, as a Centre Township Sewage Enforcement Officer, participated in the review process of the proposed Brookewood Heights Sewer Treatment Plant at a time when he was negotiating with the developer to have collection lines cross his property. Dietrich participated in these actions after consulting with the township solicitor. The solicitor advised Dietrich that he could participate in the review since the decision to approve or reject the module or plan would lie with the Board of Supervisors. Based on the advice of the solicitor, Dietrich continued to review the module and issue reports to the Board of Supervisors and Planning Commission. It was not until January, 1997, that Dietrich began recusing himself on all matters involving the Brookewood Heights Subdivision. Dietrich, 96- 040 -C2 Page 17 The parties have further stipulated that Dietrich received a total of $259.00 for duties related to the review of the Brookewood Heights subdivision sewer plant plan. As outlined in Finding 39, Dietrich received those fees totaling $259 for actions taken in his capacity as the Ordinance Enforcement Officer for Centre Township in regard to matters with the Brookewood Heights Subdivision between February 13, 1993 and May 23, 1996. Having summarized the above relevant facts, we must now determine whether the actions of Dietrich violated Sections 3(a) and 3(b) 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 /public employee 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. In applying the provisions of Section 3(a) of Act 9 of 1989 to the above facts, we find that the actions taken by Dietrich as Sewage Enforcement Officer constituted uses of authority of office. We need look no further than Fact Finding 42 which specifically recites that "Dietrich, as a Centre Township Sewage Enforcement Officer, participated in the review process of the proposed Brookewood Heights Sewer Treatment Plant at a time when he was negotiating with the developer to have collection lines cross his property." Dietrich received a pecuniary benefit of $259 as to the fees he received for his official actions as to the sewage treatment facility. Further, the pecuniary benefit was a private one because there is no authorization in law for Dietrich to receive such fees. To the contrary, the Sewage Facilities Act specifically prohibits a Sewage Enforcement Officer from participating in matters wherein he, a relative, or business associate have a financial interest. The term "financial interest" under that Act includes ownership of a lot served by a sewage system. As noted, Dietrich and his wife owned a lot in the Brookewood Heights Subdivision. Accordingly, Dietrich received a private pecuniary benefit of $259. We find that Dietrich violated Section 3(a) of Act 9 of 1989 when he participated in the review process of the Brookewood Heights Subdivision at a time when he was negotiating with the developer to place sewer collection lines on his property. 'See, - Bartos, Order No. 995. As to Section 3(b) of the Ethics Law, we find no violation relative to Dietrich's participation in the review process of the Brookewood Heights Subdivision based upon an insufficiency of evidence. We note that the parties have entered into a Consent Agreement which includes a payment by Dietrich of $259. Section 7(13) of Act 9 of 1989, 65 P.S. §407(13), specifically empowers this Commission to impose restitution in those instances where a public official /public employee has obtained a financial gain in violation of the Ethics Law. In this case, the parties, the Investigative Division and Dietrich, have stipulated to a payment of $259 by Dietrich. We take administrative notice that Dietrich has already made payment of the $259. Accordingly, we will take no further action in this case regarding the above violation. Dietrich, 96- 040 -C2 Page 18 Lastly, we note that the parties have filed a Stipulation of Findings and Consent Agreement which sets 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. Thomas Dietrich, as a Sewage Enforcement Officer for Centre Township, Berks County, is a public official /public employee subject to the provisions of Act 9 of 1989. 2. Dietrich violated Section 3(a) of the Ethics Law when he participated in the review process of the Brookewood Heights Subdivision at a time when he was negotiating with the developer to place sewer collection lines on his property. 3. Dietrich did not violate Section 3(b) of the Ethics Law relative to his participation in the review process of the Brookewood Heights Subdivision based upon an insufficiency of evidence. In Re: Thomas Dietrich ORDER NO. 1067 File Docket: 96- 040 -C2 Date Decided: 10/2/97 Date Mailed: 10/14/97 1. Thomas Dietrich, as the Sewage Enforcement Officer for Centre Township, Berks County, violated Section 3(a) of the Ethics Law when he participated in the review process of the Brookewood Heights Subdivision at a time when he was negotiating with the developer to place sewer collection lines on his property. 2. Dietrich did not violate Section 3(b) of the Ethics Law relative to his participation in the review process of the Brookewood Heights Subdivision based upon an insufficiency of evidence. 3. As per the Consent Agreement of the parties, Dietrich is directed to make payment of $259 through this Commission to Centre Township. In that Dietrich has already made payment of $259, we will take no further action in this case regarding the above violation. BY THE COMMISSION, 4 ua4ti& Its DANEEN E. REESE, CHAIR