HomeMy WebLinkAbout99-546C DingmanKevin J. Sommar, Esquire
Sommar, Tracy & Sommar
210 South Broad Street
PO Box 227
Lansdale, PA 19446
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1 -800- 932 -0936
ADVICE OF COUNSEL
June 29, 1999
FAX: (717) 787 -0806 • Web Site: www.ethics.state.oa.us • e -mail: ethicsastate.pa.us
99 -546C
Re: Conflict; Public Official /Employee; Township Engineer; Former Authority
Engineer; Review of Subdivision and Land Development Plans.
Dear Mr. Sommar:
This responds to your letter of May 25, 1999 by which you request clarification
of Dingman Advice of Counsel No. 99 -546.
Jssue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S.
§1101 se presents any prohibition or restrictions upon a Township Engineer as
to the review of subdivision and land development plans to the Township,
where the Township Engineer previously served as Engineer for the local Municipal
Authority when project financial notes were issued for the design and construction of
the sanitary sewer system for the Authority.
Fa cts: On behalf of William K. Dingman (Dingman), you request clarification of
D inaman Advice of Counsel No. 99 -546.
Dingman, Advice of Counsel No. 99 -546, was issued to Dingman based upon
the facts that he submitted. Those facts as set forth in the Advice are incorporated
herein by reference.
Your inquiry concerns the following issue that Dingman posed as having been
raised by a citizen:
Because the Township engineer or his firm has done work for The
Washington Township Municipal Authority including supplying
professional opinions regarding projections and estimates that Authority
has used to size their sewage treatment plant and determine what parts
of the Township should be sewered, is it a possible conflict of interest for
the engineer to be reviewing developer's plans for Washington
Township? Especially because the Municipal Authority's financial
condition is partially dependent on the developments the Township Board
of Supervisors approve which the Township engineer is reviewing, and
because if the Municipal Authority would defau /t on its financial
obligations, the engineer and or his firm may face potential liability.
Sommar 99 -546C
June 29, 1999
Page 2
Dingman letter of March 30, 1999 at 2 (Emphasis added).
Dingman, Advice of Counsel No. 99 -546 responded to the above question as
follows:
. pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65
Pa.C.S. §§1107(10), (1 1), advisories are issued to the requestor based
upon the facts which the requestor has submitted. In issuing the advisory
based upon the facts which the requestor has submitted, the Commission
does not engage in an independent investigation of the facts, nor does
it speculate as to facts which have not been submitted. It is the burden
of the requestor to truthfully disclose all of the material facts relevant to
the inquiry. 65 Pa.C.S. §§1107(10), (1 1). An advisory only affords a
defense to the extent the requestor has truthfully disclosed all of the
material facts.
Based upon the facts which you have submitted, if review by
you /EDM as to subdivision and land development plans submitted to the
Township would impact upon the potential liability of you /your firm, then
you /your firm would have a conflict of interest and would be required to
abstain fully and to satisfy the disclosure requirements of Section 1103(j)
as set forth above.
Dingman, Advice of Counsel No. 99 -546 at 2, 4.
In your clarification request dated May 25, 1999, you state that when Dingman
provided an opinion to the Washington Township Municipal Authority ( "Authority "),
it was predicated upon certain facts and assumptions, as set forth in the opinion letter
itself. You further state.
. Consequently, Mr. Dingman's potential liability is judged on the basis
of the circumstances which existed at the time of the opinion and the
reasonableness of the conclusions reached from the assumptions that
were based on those circumstances. This is entirely independent of any
change of those circumstances which may occur as a result of a change
in zoning which occurred or the action or inaction of the supervisors in
approving or not approving land development plans. Consequently,
whether or not the Authority is able to meet its bond obligations as a
result of the approval or disapproval of subdivision and land development
plans does not impact on the potential liability of Mr. Dingman since the
opinion was based upon the circumstances which existed at the time of
the opinion and the assumptions which were drawn from those
circumstances as specifically set forth in the opinion itself.
The review by Mr. Dingman on behalf of the Township of any
submitted subdivision and land development plan is to determine whether
or not the plans comply with the current Township ordinances and, if
not, to advise the Township as to the manner in which the plan fails to
comply with the Township ordinances. The Township then
independently determines whether or not to approve the plan or to
require the modifications necessary to have it comply with their
Township ordinances. Mr. Dingman, on behalf of EDM Consultants, Inc.,
Sommar 99 -546C
June 29, 1999
Page 3
the Township engineer, does not take part in the decision making process
of whether to approve or disapprove the plan.
In this manner, the work which was performed on behalf of the
Authority and the work which is performed on behalf of the Township,
are independent matters involving two different clients at two different
time periods under a distinctly separate set of circumstances. Thus, Mr.
Dingman, in presenting the question as posed by the citizen, may have
created the impression that his review of the plans might in some way
impact on his potential liability for the opinion rendered to the Authority,
it would appear from the facts that this is not the case and no conflict of
interest actually exists. Consequently, although you had indicated that
the existence of the avoidance of potential liability was a necessary
factor for you to determine that there was a conflict, we would
appreciate your clarifying the Advice of Counsel so as to make clear that
an engineer who renders an opinion for an Authority would not be
thereafter prohibited from serving as the Township engineer.
May 25, 1999 letter of Sommar, at 1 -2 (Emphasis added).
In addition to the above, you posit that the fact that the Township's engineer
does not have the ability to vote would seem to be an important factor in determining
the existence of a conflict since Section 1103 of the Act permits a vote by an
interested person with a conflict if there is full disclosure in order to permit the
municipality business to be properly conducted. You contend that since no vote is
made by the Township engineer, to the extent any conflict would be found to exist,
the lack of a vote would satisfy the Act or, alternatively, sufficiently satisfy any
potential conflict so as not to prohibit the Township engineer from performing his job
in reviewing the plans to determine whether they comply with the current Township
ordinances.
Discussion: Just as was noted in Dingman, Advice of Counsel No. 99 -546, it
is initially noted in this clarification of the said Advice that pursuant to Sections
1107(10) and 1107(11) of the Ethics Act, 65 Pa. C. S. § §1107(10), (11), advisories
are issued to the requestor based upon the facts which the requestor has submitted.
In issuing the advisory based upon the facts which the requestor has submitted, the
Commission does not engage in an independent investigation of the facts, nor does it
speculate as to facts which have not been submitted. It is the burden of the requestor
to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S.
§§1107(10), (1 1). An advisory only affords a defense to the extent the requestor has
truthfully disclosed all of the material facts.
As the Township Engineer for Washington Township, Dingman /Dingman's firm
(EDM Consultants, Inc., hereinafter "EDM ") would be considered a public official /public
employee subject to the provisions of the Ethics Act.
Section 1103(a) of the Ethics Act provides:
Sommar 99 -546C
June 29, 1999
Page 4
65 Pa.C.S. §1102.
Section 1103. Restricted activities.
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. §1103(a).
The following terms are defined in the Ethics Act as follows:
Section 1102. 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. The term 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.
"Authority of office or employment." The actual
power provided by law, the exercise of which is necessary
to the performance of duties and responsibilities unique to
a particular public office or position of public employment.
"Business." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self - employed individual, holding company,
joint stock company, receivership, trust or any legal entity
organized for profit.
"Business with which he is associated." Any
business in which the person or a member of the person's
immediate family is a director, officer, owner, employee or
has a financial interest.
Section 1103(j) of the Ethics Act provides as follows:
Section 1103. Restricted activities.
(j) Voting conflict. - -Where voting conflicts are not
otherwise addressed by the Constitution of Pennsylvania or
by any law, rule, regulation, order or ordinance, the
following procedure shall be employed. Any public official
or public employee who in the discharge of his official
Sommar 99 -546C
June 29, 1999
Page 5
duties would be required to vote on a matter that would
result in a conflict of interest shall abstain from voting and,
prior to the vote being taken, publicly announce and
disclose the nature of his interest as a public record in a
written memorandum filed with the person responsible for
recording the minutes of the meeting at which the vote is
taken, provided that whenever a governing body would be
unable to take any action on a matter before it because the
number of members of the body required to abstain from
voting under the provisions of this section makes the
majority or other legally required vote of approval
unattainable, then such members shall be permitted to vote
if disclosures are made as otherwise provided herein. In the
case of a three - member governing body of a political
subdivision, where one member has abstained from voting
as a result of a conflict of interest, and the remaining two
members of the governing body have cast opposing votes,
the member who has abstained shall be permitted to vote
to break the tie vote if disclosure is made as otherwise
provided herein.
65 Pa.C.S. §1103(j).
In applying the above provisions of the Ethics Act to the request for clarification
of Dingman, Advice of Counsel No. 99 -546, you are advised as follows.
With regard to the specific question of whether Dingman /EDM, having
previously rendered opinion(s) to the Authority as the Authority's Engineer, would be
prohibited from thereafter serving as the Township's Engineer, the Ethics Act contains
no express prohibition against such subsequent service. However, the restrictions of
Sections 1103(a) and 1103(j) must be observed by authority engineers and township
engineers alike. Pursuant to Section 1103(a) of the Ethics Act, a municipal authority
engineer or a township engineer would be prohibited from using the authority of such
public position or confidential information received by holding such public position for
the private pecuniary benefit of himself, any member of his immediate family, or a
business with which he or a member of his immediate family is associated. As noted
in Dingman, Advice of Counsel No. 99 -546, EDM is a business with which Dingman,
as its President, is associated.
Thus, in any instance where Dingman's /EDM's use of the authority of the
position of Township Engineer would result in a prohibited private pecuniary benefit,
a conflict would exist. On the issue of potential liability specifically, the Advice
concluded (based upon the facts submitted by Dingman) that if review by
Dingman /EDM as to subdivision and land development plans submitted to the
Township would impact upon the potential liability of Dingman /EDM, then
Dingman /EDM would have a conflict of interest and would be required to abstain fully
and to satisfy the disclosure requirements of Section 1103(j) as set forth in the
Advice. That conclusion would not and does not change simply because you posit
your view that such liability would not exist. The question of whether such liability
would exist is a factual issue that may not be resolved by an advisory from the State
Ethics Commission.
Finally, you are advised that your interpretation of the application of Section
1103(j) is incorrect. That Section, which sets forth certain legal requirements as to
conflicts and certain narrow exceptions for voting despite a conflict, has nothing to do
Sommar, 99 -546C
June 29, 1999
Page 6
with determining whether a conflict exists. A conflict exists when the elements for
a conflict of interest, as set forth in the above statutory definition of that term (65
Pa.C.S. §1102), are met and neither of the two statutory exceptions applies.
Moreover, the duty of a public official /public employee with a conflict is to abstain
fully- -not merely from voting, but from any use of authority of the public position (see,
Juliante, Order No. 809 (use of authority of office encompasses more than voting)).
The fact that a given public official /public employee with a conflict does not hold a
voting position does not in any way alleviate the conflict of interest or his
corresponding duty to abstain from otherwise using the authority of his public position .
as to the matter. Your alternative suggestion that the lack of a vote would "satisfy
any potential conflict so as not to prohibit the Township engineer from performing his
job ... " (Sommar letter of May 25, 1999 at 2), is without merit for these same
reasons.
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability of any other statute, code, ordinance, regulation or other code
of conduct other than the Ethics Act has not been considered in that they do not
involve an interpretation of the Ethics Act. Specifically not addressed herein is the
applicability of the Second Class Township Code or any applicable professional code(s)
of conduct.
Conclusion: As Township Engineer for Washington Township ( "Township ") in
Berks County, Pennsylvania, William K. Dingman ( "Dingman ") and /or Dingman's firm,
EDM Consultants, Inc. (EDM) would be considered a public official /public employee
subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "),
65 Pa.C.S. §1101 sea. EDM is a business with which Dingman, as its President,
is associated. Based upon the facts which you have submitted, if review by
Dingman /EDM as to subdivision and land development plans submitted to the
Township would impact upon the potential liability of Dingman /EDM, then
Dingman /EDM would have a conflict of interest and would be required to abstain fully
and to satisfy the disclosure requirements of Section 1103(j) as set forth above. The
Ethics Act would not prohibit Dingman /EDM from serving as the Township Engineer
merely because Dingman /EDM previously served as engineer for the Washington
Township Municipal Authority. Lastly, the propriety of the proposed conduct has only
been addressed under the Ethics Act.
Pursuant to Section 1107(11), an Advice is a complete defense in any
enforcement proceeding initiated by the Commission, and evidence of good faith
conduct in any other civil or criminal proceeding, provided the requestor has disclosed
truthfully all the material facts and committed the acts complained of in reliance on the
Advice given.
This letter is a public record and will be made available as such.
Finally, if you disagree with this Advice or if you have any reason to
challenge same, you may appeal the Advice to the full Commission. A
personal appearance before the Commission will be scheduled and a
formal Opinion will be issued by the Commission.
Any such appeal must be in writing and must be actually received
at the Commission within thirty (30) days of the date of this Advice
pursuant to 51 Pa. Code §13.2(h ). The appeal may be received at the
Commission by hand delivery, United States mail, delivery service, or by
Sommer 99 -546C
June 29, 1999
Page 7
FAX transmission (717-787-0806). Failure to file such an appeal at the
Commission within thirty (30) days may result in the dismissal of the
appeal.
cerely,
eL J
Vincent J. Dopko
Chief Counsel