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HomeMy WebLinkAbout252 KearneyMr. John R. Kearney Dunmore Borough Engineer 1701 Quincy Avenue Dunmore, PA 18512 Re: #82 -68 -C STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION November 10, 1983 ' Order No. 252 Dear Mr. Kearney: The State Ethics Commission has received a complaint regarding you and a possible violation of Act 170 of 1978. The Commission has now completed its investigation. The individual allegations, conclusions, and findings on which those conclusions are based are as follows: 1. Allegation: That as Borough Engineer in Dunmore you reviewed and recommended approval of plans you drew up and submitted to the Dunmore Planning Commission with specific reference to Swinick Contracting and Development Company'and have failed to properly enforce or recommend action on performance bonds given by Swinick. A. Findings: 1. You serve as officially designated Engineer to the Borough of Dunmore and as such you are a public official/employee subject to the provisions of the Ethics Act. 2. At no time after January 1, 1979, did you serve as Engineer for or render engineering services to the Planning Commission (PC) in Dunmore Borough. a. The PC in Dunmore Borough is established pursuant to Borough Ordinance under authority of the provisions of the Municipalities Planning Code, Act 247 of 1968, as amended. John R. Kearney November 10, 1983 Page 2 b. The PC i appointed by the Borough Council but is a separate body from the Council, c. The Borough Engineer has no legal role or responsibility in appointment of the PC. d. The PC administers the Zoning and Subdivision Ordinances of the - Borough. 3. You also occasionally offee and perform engineering services to private clients although your full - -time job is as maintenance engineer with Mercy Hospital in Scranton. 4. You have, in your capa es an engineer rendered engineering services to a developer within the Borough, Zachary - Swinick and the Swinick Contracting and Development Compaoy, hereafter Swinick. a. Records of the Corporation Bureau, DepaAment of State, Commonwealth of Pennsylvania were reviewed and reveal no association between you and Swinick. b. You are not a shareholder, officer or owner in Swinick. 5. Swinick, from time to time, presented plans to the PC for approval and provided the performance bonds required by the PC and Ordinances associated with development or subdivisions. a, You were not called upon after January 1, 1979 to review or approve such plans or bonds as Borough Engineer or otherwise. b. You did not make any recommendations as Borough Engineer or otherwise after January 1, 1979, with respect to Swinick's plans or bonds. c. You were not required to nor did you recommend or review these bonds /plans for enforcement or release. B. Discussion: As'a public employee /official you must conform your conduct to the requirements of the Ethics Act and in particular must observe the provisions of Section 3(a) which states: 3. Restricted Activities (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). John R. Kearney November 10, 1983 Page 3 Given the facts as found above, we can discern no evidence to conclude that you used your post as Borough Engineer to favor your own interests or those of Swinick for whom you provided engineering services. C. Conclusion: The provisions of Section 3(a) of the Ethics Act are not violated in this situation. II. Allegation: That as Borough Engineer you engage in a business relationship with a member of borough council, trading as Turnpike Garage, and regularly do business with a developer (Swinick) who you generally regulate and whose plans have been subject to your recommendation or approval. A. Findings: The Findings 1-5 are incorporated here by reference, in addition to which we find as follows: 6. Your role as Borough Engineer in the last five years has been minimal. 7. The records of the minutes of Borough Council for the last five years were reviewed and do not record any instance where plans you may have prepared were presented to Council for review /approval. 8. The private engineering work you do is limited to small projects mostly for friends. 9. There is no evidence of special treatment being given to Swinick or any other private client of yours as to permits, plans or inspections. 10. There is no evidence of special treatment being given to Swinick or any other private client of yours w'.th respect to signs or building code inspections /violations. a. Such matters would be handled generally by the zoning officer or building inspector. b. The zoning officer and building inspector and their actions are not within your jurisdiction or control. 11. There is n,) evidence that you engage in a business relationship with a member of Borough Council, trading as Turnpike Garage or that the fact that Swinick may have done business with said Garage had any effect on your official judgment or action as Borough Engineer. John R. Kearney November 10, 1983 Page 4 B. Discussion: These facts as found do not support the assertion that you have sought or obtained generally Favorable official action for clients for whom y•: :u provided engineering services. Likewise, the fact that you serve private clients, without more, is insufficient to• conclude the Ethics Act has been violated. The Ethics Act was not designed nor has it been interpreted by this Commission to preclude public officials /employees from engaging in normal business or professional relationships. Of course, you should be particularly sensitive should a person for whom you provide(d) private services as an engineer submit proposals which you as Borough Engineer must review or whose actions or performance you must review or inspect as Borough Engineer. However, we have found no impropriety in your actions in these matters. C. Concl w ion: There is no violation of The Ethics Act given the facts as found above. Our file7 l this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. 408(a). However, this Order is final and will be made available as a public document 15 days after service (defined as mailing) unless you file documentation with the Commission which justifies reconsideration and /or challenges pertinent factual findings. See 51 Pa. Code 2.38. During this 15 -day period, no one, including the Respondent unless he waives his right to challenge this Order, may violate this confidentiality by releasing, discussing or circulating this Order. Any person who violates the confidentiality of a Commission proceeding is guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned for not more than one year or both, see 65 P.S. 409(e). PJS /jc By the Commission, g arii A l L .4 Chairman 4,AL