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HomeMy WebLinkAbout94-540-S BankensteinBruce C. Bankenstein, Esquire Manifold and Bankenstein 42 North Duke Street York, PA 17401 -1299 Dear Mr. Bankenstein: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 21, 1994 94 -540 -S Re: Conflict, Public Official /Employee, Township Supervisor, Use of Authority of Office or Confidential Information, Business with which Associated, Engineering Services, Sewage Treatment Facilities, Vote, Supplemental Advice. This responds to your letter of June 20, 1994, in which you requested supplemental advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a Township Supervisor with regard to the Township's sewage facilities plan and its proposed sewage treatment plant, where the Supervisor's employer expects to submit proposals to the township and a neighboring borough for work related to the project, and was previously hired to prepare the municipal sewage facilities plan for the borough. Facts: By letter of March 7, 1994, you requested advice from the State Ethics Commission for three factual scenarios as to which you posed questions under the Ethics Law. On April 6, 1994, Advice of Counsel 94 -540 was issued, which Advice is incorporated herein by reference. You now seek supplemental advice. While the facts set forth in the prior Advice will not be repeated at length, it is briefly noted that you have submitted • your inquiries on behalf of a Township Supervisor for North Codbrus Township. The Supervisor is employed by a local engineering firm. This firm prepared the municipal sewage facilities plan for the Borough of New Salem, which Borough is surrounded by North Codorus Township. The firm is not the Borough's engineer. Neither the Supervisor nor his division within the firm was involved in this Bruce C. Bankenstein, Esquire July 21, 1994 Page 2 project. When the prior Advice was issued, the Supervisor believed that the lan for the Borough of New Salem recommended on -lot management Until a sewer system with sufficient capacity to serve New Salem would eventually be built by North Codorus Township or some other township. Also at that time, a plan for the Township was being developed by its own Township Engineer, without any involvement by the Supervisor's firm. You had been informed that the plan recommended an on -lot management system. However, if a sewage treatment plant would be developed for North Codorus Township or for New Salem Borough, the Supervisor's firm would submit a bid as would other companies. You stated that if such bids were submitted for the development of a sewage treatment plant for North Codorus Township, this Supervisor would abstain from any vote on such bidding. Since the issuance of Advice of Counsel 94 -540, the Township Supervisor reviewed the draft of the sewage facilities plan for the Township. The Supervisor has advised you that the plan, if approved, will recommend a sewage treatment plant to serve the developed and developing areas of the Township, including areas of the Township around the Borough of New Salem. That plan would propose service to New Salem Borough, although you note that such service would be contingent on independent action by that Borough. If the plan would be adopted and implemented, the Township would design and construct its own sewage treatment facility. However, any collection facilities in New Salem Borough would be the responsibility of that Borough, and not the responsibility of the Township. In essence, New Salem Borough would contract with North Codorus Township for sewage treatment capacity and would provide its own collection facilities for that purpose. However, the sewage treatment plant of the Township would certainly be looking to the sewer payments from New Salem Borough as part of its gross revenues for operating its own system. The engineering firm of which the Supervisor is an employee prepared the sewage facilities plan for New Salem Borough, but this project has been concluded. The firm is not the engineer for New Salem Borough or for North Codorus Township, and it is not working on the sewage facilities plan for North Codorus Township. If North Codorus Township does adopt a'sewage facilities plan which recommends a central sewage treatment facility, the Supervisor's firm would be interested in presenting a proposal to the Township, if invited, on the design phase or any subsequent phase where engineering services would be involved. It would also be interested in presenting a proposal, if invited, on the design phase of the New Salem Borough collection facilities to tie into Bruce C. Bankenstein, Esquire July 21, 1994 x. Page 3 the North Codorus Township system. That firm would be only one of a number of firms that would hope to submit proposals on these two potential projects. The Supervisor is not involved with the department of his firm which would submit such proposals or which would provic`e the services for the design phase, construction phase or achy othe phase of any proposed sewage treatment facility project by . NOrtI Codorus Township or any sewage collection facilities pro ect bW Ne* Salem Borough. North Codorus Township and New Salem Beirotrgh are independent municipal governing bodies and have ino agreement with %gard to sewage facilities. During the preparation and adoption of the Township's sewage facilities plan, there is and will be no relationship with any firm other than the Township's own independent engineering firm that is preparing this plan. No agreement exists with any firm for the design, construction or other phase of any such proposed project. No such contract or arrangement can exist until the plan has been fully approved locally and by the state, and until formal action is subsequently taken to implement any sewage treatment facility project. Based upon these additional facts and in light of the April 6, 1994 Advice of Counsel, you ask whether the Supervisor may take part in all the deliberations and actions upon the preparation and adoption of a revised sewage facilities plan for North Codorus Township. You also ask whether the Ethics Law would impose restrictions upon the Supervisor's conduct if the Supervisor's firm submits a proposal to or is hired by New Salem Borough with regard to the design or any other phase of that Borough's own sewage collection facility that has no bearing upon the Supervisor's actions with the Township. Finally, while noting that the Supervisor would abstain from any formal action, discussion, deliberation or vote with regard to phase(s) of the Township's sewage treatment facilities as to which the Supervisor's firm submits a proposal to the Township, you ask whether the Supervisor would have a conflict of interest in taking part in formal action, appropriation, discussion, deliberation or vote with regard to the implementation of a phase of the Township's sewage treatment facilities project where the contract for that phase has been awarded to some other firm. • Based upon all of the above, you request a supplemental advisory from the State Ethics Commission. Discussion: It is initially noted that puruant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. 55407(10), (11), advisories are issued to the requestor based upon the fate which the requester has submitted. Ih issuing the advisory based upon the Bruce C. Bankenstein, Esquire July 21, 1994 Page 4 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 P.S. §S407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Supervisor for North Codorus Township, the Supervisor on whose behalf you have inquired is a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. Sections 3(a), 3(b), 3(c), 3(f), and 3(j) have been fully set forth and explained in Advice of Counsel No. 94 -540, and the said Section will not be repeated herein but are incorporated herein by reference. IA considering the questions which you have posed in light of the additional facts which you have provided, it is clear that the T sewage facilities plan for a sewage treatment plant proposes service to New Salem Borough, and that the sewer payments from New Salem Borough would be part of the Township's gross revenues for operating its own system. It is also clear that this Supervisor's employer would seek to do the design phase of the collection facilities for the New Salem Borough to tie into the Townsh system as well as the design phase or any subsequent phase involving engineering services for North Codorus Township itself, should it adopt this plan. The fact that this Supervisor ie not involved with the specific department of his firm which would submit proposals or provide services on these projects is irrelevant. By virtue of this Supervisor's employment with this firm, it is by definition a business with which he is associated. Based upon the above supplemental facts, and in light of the extensive discussion of prior decisions by this Commission which were set forth in the initial Advice to you, it is clear that this Supervisor would have a conflict of interest as to matters before the Township involving the sewage facilities plan. There is a reasonable expectation that this plan, which proposes a sewage treatment plant rather than on -lot management, would result in a contractual relationship whereby the Supervisor's employer would receive a private pecuniary benefit. This private pecuniary benefit could result from either the Township's project or the collection facility for New Salem, or it could conceivably result from both projects. This firm was already chosen to do work for New Salem Borough in the past to prepare its own municipal sewage facilities plan. Additionally, the Supervisor would have a conflict of interest Bruce C. Bankenstein, Esquire July 21, 1994 Page 5 as to any matter before the Township involving his employer, including but not limited to projects where there is a reasonable expectation that his employer will submit a proposal. Based upon the above, your specific inquiries are addressed as follows. 1. The Supervisor may not take part in deliberations or actions upon the preparation and /or adoption of &revised sewage facilities plan for North Codorus Township. 2. Section 3(a) of the Ethics Law does not impose restrictions upon the Supervisor as to a proposal submitted by the Supervisor's f irmto New - Sal,.em Borough,' because this Supervisor does not serve as a public official of the borough. 3. As to phases of the. township's sewage treatment facilities project awarded to other firms, the Supervisor may not use the authority of office to the detriment of firms which are his own firm's competitors. See Pepper, Opinion 87 -008. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Second Class Township Code. Conclusion: As a Supervisor for North Codorus Township, the individual on whose behalf you have inquired is a public official subject to the provisions of the Ethics Law. The Township Supervisor would have a conflict of interest as to the sewage facilities plan for North Codorus Township. Additionally, the Supervisor would have a conflict of interest as to any matter before the Township involving his employer, including but not limited to projects where there is a reasonable expectation that his employer will submit a proposal. In each instance of a conflict of interest, the requirements of Section 3(j) set forth above must be observed. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. •-f Pursuant to Section 7(11), this Advice -is- 4 'complete defenses' in any enforcement proceeding_ initiated by the Commission,- and evidence of good faith conduct in any other civil _ or • :criminal' proceeding, providing the requester has di.s: losed truthfully all the material _facts and committed the acts complained of in reliance on the Advice given. Bruce C. Bankenstein, Esquire July 21, 1994 Jb Page 6 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 Advke 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 fifteen (15) 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 FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. Vincent JV Dop Chief Counsel