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HomeMy WebLinkAbout1523 HalsteadIn Re: James Halstead, Respondent File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Nicholas A. Colafella Mark Volk 08 -007 Order No. 1523 7/22/09 8/4/09 This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding possible violation(s) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., 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." A Stipulation of Findings and a Consent Agreement waiving an evidentiary hearing were subsequently submitted by the parties to the Commission for consideration. The Stipulated Findings are set forth as the Findings in this Order. The Consent Agreement has been approved. This adjudication of the State Ethics Commission is issued under the Ethics Act and 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 the Ethics Act. Halstead, 08 -007 Page 2 I. ALLEGATION: That James Halstead, [a] public official /public employee in his capacity as a Supervisor of Clinton Township, Butler County, violated Section 1103(a) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. § 1103(a), when he used the authority of his public position for the private pecuniary gain of a member of his immediate family by participating in actions of the Clinton Township Board of Supervisors to approve the installation of a cellular telephone antenna to be located on his parents' property. II. FINDINGS: 1. James Halstead has served as a Supervisor for Clinton Township, Butler County, from May 1998 to the present. a. Halstead was appointed as Road Foreman in January 2006 and continues to serve in that capacity. 2. Clinton Township is a 2 class township governed by a three - member board of supervisors. a. The township supervisors receive $156.25 gross per month in compensation. 1. Regular supervisor meetings are held once per month. 2. Special meetings are held throughout the year as needed. b. Supervisors do not have to be present at the meetings in order to receive the compensation. 3. Voting at Clinton Township meetings occurs via an aye or nay vote after a motion is made and seconded. a. Township minutes normally note that a motion was made, seconded, voted on, and the result of the vote. 1. Instances exist where the minutes document only a motion and a second being made. aa. Those instances represent unanimous approval for the motion by the supervisors which was not recorded by the secretary. b. Abstentions or dissenting votes are specifically documented in the minutes. 1. A roll call vote is normally taken if an abstention and /or dissenting vote is cast. c. Minutes are approved for accuracy at each subsequent meeting. 4. Invoices are provided to the supervisors at the regular monthly meetings for review and approval. a. Invoices to be paid are routinely reviewed at the township meetings by the supervisors. b. Bill lists were not provided to the supervisors to be voted on until the fall of 2007. Halstead, 08 -007 Page 3 5. Invoices provided to the supervisors for approval are those received by the township since the prior monthly meeting. a. Township checks are usually written prior to the vote to approve the invoices for payment. b. Once approved, checks are presented to the supervisors for signature. 1. Instances exist in which various checks are issued prior to a township meeting so that late fees are not incurred. 6. All three supervisors, the secretary /treasurer, and the assistant secretary/treasurer hold signature authority for Clinton Township accounts. a. Township checks require the signature of two supervisors and either the secretary /treasurer or the assistant secretary /treasurer. b. Facsimile stamps are not utilized. 7 The Township Zoning Ordinance regulates the allowed land use. a. The Township Zoning Ordinance was adopted by the Supervisors in approximately 1968. b. The ordinance has been amended throughout the years. 8. Article V, Section 2, Subsection A of the Zoning Ordinance provides that a cellular tower is considered a Conditional Use. a. A Conditional Use is defined as a structure that is permitted, but may require special conditions for safety reasons. 9. Article VIII, Section 1, Subsections A and B of the Zoning Ordinance outline the procedures for approval of a Conditional Use. a. Article VIII, Section 1, Subsection A requires that a written application be filed with Clinton Township no later than 20 days prior to the regular monthly meeting of the Planning Commission that includes the following information: 1. A written statement describing proposed uses including precise details concerning the proposed method of operation. 2. An accurately drawn site plan. b. Article VIII, Section 1, Subsection B of the Zoning Ordinance outlines the review and action procedures that the Planning Commission and Board of Supervisors must follow, as noted below: 1. "The Commission shall review each application for a Conditional Use at its first regular meeting after the application is submitted. The application shall be reviewed for compliance and completeness of the material provided." 2. "The Commission shall forward its recommendations to the Board of Supervisors in writing as soon as possible, noting any deficiencies it has found in the application and advising the Board to accept the application as presented, reject it with specific reasons based on the Halstead, 08 -007 Page 4 requirements of the Ordinance, or to accept it provided certain specific deficiencies are corrected and /or specific conditions are attached to approval designed to uphold the public health and safety and /or the purposes of the Ordinance." 3. "The Board of Supervisors shall schedule and hold a public hearing, properly noticed, within sixty (60) days from the date of the regularly scheduled meeting of the Planning Commission following receipt of the application." 4. "The Board shall render a written decision on the application within forty -five (45) days after the last day of the hearing." 10. In early 2003, Peter McMillen, former employee of Steven, Bernstein & Associates, conducted a site review in Clinton Township for an AT &T cellular tower to be constructed. a. Steven, Bernstein & Associates were sub - contracted by AT &T to conduct the site review. 11. During the review, McMillen identified three sites that were suitable for a cellular tower. a. McMillen identified property owned by Howard and Nancy Halstead as one suitable site and two other areas located within Victory Road Industrial Park. 1. Howard and Nancy Halstead are Respondent Halstead's parents. 12. Saxonburg Water Authority owns the areas located within Victory Road Industrial Park that were identified by McMillen as suitable locations for a cellular tower. a. Erection of a cellular tower in these areas was not permitted due to restrictive covenants in the deed between Victory Road Industrial Park and the Saxonburg Water Authority. 13. McMillen selected Howard and Nancy Halstead's property by default due to the fact that other locations reviewed were inaccessible. a. McMillen approached Howard and Nancy Halstead about leasing a portion of their land to AT &T. b. Howard and Nancy Halstead did not approach McMillen in regards to selecting their property. 14. A lease agreement between AT &T and Howard and Nancy Halstead was executed on May 5, 2003. a. The lease agreement details that the initial term of the lease was for five years and that the lease would automatically be renewed for 29 years and 11 months. 1. AT &T agreed to pay the Halsteads monthly rental payments of $1,000.00. 15. AT &T offers third party cellular entities the opportunity to attach antennas to newly constructed AT &T towers. Halstead, 08 -007 Page 5 a. Co- location revenues may be issued to the property owner depending on the contract terms. 16. Co- location revenues are payments made for areas of a cellular tower that are leased to third parties for attachment of antennas. a. The May 5, 2003, agreement indicates that no co- location revenues are to be paid to the Halsteads. 17. The lease of Howard and Nancy Halstead's property was executed with the understanding that it would become effective after the cellular tower was erected and operational. a. It was the obligation of AT &T to provide the Halsteads with a written notification of when commencement of monthly payments would begin. 18. On June 13, 2003, McMillen completed a township Conditional Use application to erect an "unmanned wireless telecommunication facility" on the property owned by Howard and Nancy Halstead. a. The application was signed by McMillen, Howard Halstead, and Nancy Halstead. b. The location of the cellular tower was indicated as the physical address of Howard and Nancy Halstead's residence at [residence address]. 19. At the July 7, 2003, Planning Commission meeting, the commissioners recommended to the Supervisors the approval of the AT &T cellular tower to be built on Howard and Nancy Halstead's residence, and the approval [of] the subdivision plan regarding the tower. a. The motion to recommend the approval of the cellular tower and the subdivision plan passed unanimously. b. Neither Howard and Nancy Halstead nor James Halstead were members of the Planning Commission at the time the motions passed. 20. At the July 15, 2003, Supervisors meeting, the subdivision plan regarding Howard and Nancy Halstead's property /the AT &T tower was presented for approval. a. The motion passed via a 2 -0 -1 vote with James Halstead abstaining. b. The minutes note that James Halstead abstained because the vote involved his parents' property. 21. At the August 12, 2003, Supervisors meeting /Conditional Use Hearing, the Supervisors approved AT &T's Conditional Use application. a. The motion passed via a 2 -0 -1 vote with James Halstead abstaining. b. The minutes note that James Halstead abstained because his father is the owner of the property that will be leased to AT &T. 22. Approximately 10,000 square feet (including air space above the ground equipment) was leased to AT &T by Howard and Nancy Halstead. a. The area leased to AT &T was located on one of the highest elevations on Halstead, 08 -007 Page 6 Howard and Nancy Halstead's property. 23. Construction of the tower began in approximately spring 2004 and ended in approximately late summer 2004. a. The AT &T cellular tower is the only cellular tower located in Clinton Township. 24. On December 28, 2005, a lease agreement between Cingular Wireless and Howard and Nancy Halstead was executed. a. The lease was executed due to AT &T being bought out by Cingular. b. The new lease stipulated the same agreements as outlined by the lease entered into on May 5, 2003, with AT &T. 25. On or about May 18, 2006, the Halsteads received a written notification from Cingular regarding the commencement of the monthly rental payments. a. The correspondence details that $1,000.00 monthly rental payments will be made to the Halsteads beginning on May 1, 2006. 26. Though the Halsteads initially entered into a lease agreement with AT &T in 2003, monthly rental payments did not begin until May 2006. a. Monthly payments were not issued until the cellular tower became fully operational. 27. AT &T /Cingular payment records reflect that from May 22, 2006, to November 1, 2008, Howard and Nancy Halstead have been paid $31,000.00. a. The $31,000.00 paid to the Halsteads was for leasing their property to AT &T /Cingular. b. Howard and Nancy Halstead have continued to receive $1,000.00 monthly payments from AT &T /Cingular from November 2008 through the present. 28. In 2006, Cricket Communications was interested in attaching an antenna to the Cingular cellular tower located [at] Howard and Nancy Halstead's residence. a. Cricket was limited as to where an antenna could be placed due to the fact that the Cingular cellular tower was the only cellular tower within Clinton Township. 29. A Master Lease Agreement between Cingular and Cricket Communications dated January 1, 2006, was executed in association with attaching an antenna onto Cingular's existing cellular tower. a. The lease specifies that Cricket must pay rent in the amount of $1,650.00 per month for the attachment of Cricket antenna(s) to the Cingular cellular tower. 1. The monthly payments are to be issued to Cingular. b. The terms of the Master Lease expired on December 31, 2008. 30. In late October 2007 /early November 2007, a Site Lease was executed by Halstead, 08 -007 Page 7 representatives of Cricket Communications and Cingular. a. The lease detailed an increase in monthly rental payments to $2,000.00 per month. 1. The monthly payments are to be issued to Cingular. 2. There is no provision in the lease agreement that any of the rental payments made by Cricket in whole or in part will be provided to Howard and Nancy Halstead. b. The term of the lease is for 25 years. 31. On November 21, 2007, Lenny Kiec, Site Acquisition Consultant, Cricket Communications, emailed Mary Zacherl, then Zoning Officer for Clinton Township, to determine what procedures (established by the Township) must be followed in order for an antenna to be attached to a pre- existing cellular tower. a. Kiec was referring to the pre- existing AT &T /Cingular cellular tower built on Howard and Nancy Halstead's property. 32. On November 21, 2007, Zacherl responded to Kiec's email indicating that the following steps must be completed in order for an antenna to be attached to a pre- existing cellular tower: a. A site plan must be submitted to the Planning Commission and Board of Supervisors for approval. b. The site plan must receive zoning approval. c. Necessary building permits need to be obtained. d. MDIA (Middle Department Inspection Agency), the township's inspection agency, must approve the structure. 33. On or about November 27, 2007, Cricket completed and submitted a land development site review application to the township regarding the attachment of a Cricket antenna to the AT &T /Cingular cellular tower. 34. At the January 7, 2008, Planning Commission meeting, the commissioners recommended to the supervisors that the site review application submitted by Cricket be approved. a. The vote to recommend the approval of the application passed unanimously. b. Neither Howard and Nancy Halstead nor James Halstead were members of the Planning Commission at the time the motion passed. 35. On January 14, 2008, the Board of Supervisors concurred with the Planning Commission's recommendation and approved the attachment of the Cricket antenna to the existing AT &T /Cingular cellular tower. a. The motion to approve the antenna passed unanimously. b. Halstead voted to approve the motion. 36. The attachment of the antenna began in approximately spring 2008 and ended in Halstead, 08 -007 Page 8 approximately one month's time. a. To date, only one Cricket antenna has been attached to the cellular tower. 37. Howard and Nancy Halstead have continued to receive payment in the amount of $1,000.00 per month from Cingular after the Cricket Communications antenna was attached. a. Correspondence dated November 19, 2008, from Marian Taylor, Lead Paralegal, Litigation Group, AT &T Mobility, to the Investigative Division of the State Ethics Commission stated the following: "No portion of the rent payable by Cricket Communications to ATTM is payable to Howard L. and /or Nancy S. Halstead." 38. Halstead's official action to approve the attachment of the antenna at the January 14, 2008, Board of Supervisors meeting did not result in a financial gain to Halstead's parents. a. Attachment of the Cricket Communications antenna did not result in any additional payment to Howard or Nancy Halstead by either Cingular or Cricket Communications. III. DISCUSSION: As a Supervisor of Clinton Township ( "Township "), located in Butler County, Respondent James Halstead (hereinafter also referred to as "Respondent," "Respondent Halstead," and "Halstead ") is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. The allegation is that Respondent Halstead violated Section 1103(a) of the Ethics Act when he used the authority of his public position for the private pecuniary gain of a member of his immediate family by participating in actions of the Township Board of Supervisors to approve the installation of a cellular telephone antenna to be located on his parents' property. Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest: § 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 term "conflict of interest" is defined in the Ethics Act as follows: § 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 Halstead, 08 -007 Page 9 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. 65 Pa. C. S. § 1102. Section 1103(a) of the Ethics Act prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are set forth above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. Respondent has served as a Township Supervisor from May 1998 to the present. The Township Board of Supervisors ( "Board ") consists of three Members. Pursuant to the Township Zoning Ordinance, a cellular tower is considered a conditional use. The procedures for approval of a conditional use require that a written conditional use application be filed with the Township. The Planning Commission reviews the application and forwards its recommendations to the Board, noting any deficiencies in the application and advising the Board to accept the application as presented, reject it with specific reasons based upon requirements of the Zoning Ordinance, or accept it subject to the correction of deficiencies and /or satisfaction of conditions. The Board then holds a public hearing and renders a written decision on the application. On May 5, 2003, AT &T entered into a lease agreement with Respondent's parents, Howard and Nancy Halstead (also referred to herein as the Halsteads "). The lease agreement provided for AT &T to lease a portion of the Halsteads' land for a cellular tower. The initial term of the lease was for five years. The lease was to be automatically renewed for 29 years and 11 months. AT &T agreed to pay the Halsteads monthly rental payments of $1,000.00. The agreement was executed with the understanding that it would become effective after the cellular tower was erected and operational. It was the obligation of AT &T to provide the Halsteads with a written notification of when monthly payments would commence. The May 5, 2003, agreement between AT &T and the Halsteads provided that no "co- location revenues" would be paid to the Halsteads. Co- location revenues are payments made for areas of a cellular tower that are leased to third parties for attachment of antennas. A conditional use application for the AT &T cellular tower was submitted to the Township in or about June 2003. At the July 7, 2003, Planning Commission meeting, the Commissioners recommended that the Supervisors approve the cellular tower and the subdivision plan for the tower. Respondent did not participate in actions of the Board to approve the erection of the cellular tower on his parents' property. At the July 15, 2003, Board meeting, the Board approved the subdivision plan for the AT &T cellular tower at the Halstead property. The motion passed via a 2 -0 -1 vote with Halstead, 08 -007 Page 10 Respondent abstaining. The minutes note that Respondent abstained because the vote involved his parents' property. At the August 12, 2003, Board meeting /conditional use hearing, the Board approved AT &T's conditional use application for the cellular tower at the Halstead property. The motion passed via a 2 -0 -1 vote with Respondent abstaining. The minutes note that Respondent abstained because his father is the owner of the property. The AT &T cellular tower was constructed at the Halstead property in 2004. It is the only cellular tower located in the Township. In December 2005, a lease agreement between Cingular Wireless and the Halsteads was executed, as a result of AT &T being bought out by Cingular. The new lease contained the same agreements as the May 5, 2003, lease between AT &T and the Halsteads. The monthly rental payments to the Halsteads did not begin until May 2006. From May 22, 2006, to November 1, 2008, the Halsteads were paid $31,000.00 for leasing their property to AT &T /Cingular. The Halsteads have continued to receive $1,000.00 monthly payments from AT &T /Cingular from November 2008 through the present. In 2006, Cingular entered into a lease agreement with Cricket Communications ( "Cricket ") providing for the attachment of Cricket antenna(s) onto the cellular tower at the Halstead property. The lease provided for Cricket to pay rent to Cingular in the amount of $1,650.00 per month. The lease was to expire on December 31, 2008. In late October 2007 /early November 2007, Cricket and Cingular representatives executed another lease, increasing the monthly rental payments to $2,000.00 per month. There is no provision in the lease agreement that any portion of the rental payments made by Cricket will be provided to the Halsteads. The term of the lease is for 25 years. On or about November 27, 2007, Cricket submitted to the Township a land development site review application for the attachment of a Cricket antenna to the AT &T /Cingular cellular tower. At the January 7, 2008, Planning Commission meeting, the Commissioners recommended to the Supervisors that the site review application submitted by Cricket be approved. On January 14, 2008, the Board approved the attachment of the Cricket antenna to the existing AT &T /Cingular cellular tower at the Halstead property. The motion to approve the antenna passed unanimously. Respondent voted to approve the motion. The Cricket antenna was attached to the cellular tower in 2008. To date, only one Cricket antenna has been attached to the cellular tower. After the Cricket antenna was attached to the cellular tower at the Halstead property, the Halsteads continued to receive payment in the amount of $1,000.00 per month from Cingular. The attachment of the Cricket antenna to the cellular tower did not result in any additional payment to the Halsteads by either Cingular or Cricket. The parties have stipulated that Respondent's official action at the January 14, 2008, Board meeting to approve the attachment of the Cricket antenna to the AT &T /Cingular cellular tower did not result in a financial gain to Respondent's parents. Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. The parties' Consent Agreement sets forth a proposed resolution of the allegation as follows: Halstead, 08 -007 Page 11 3. The Investigative Division will recommend the following in relation to the above allegations: a. That no violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1103(a) occurred in relation to Halstead's participation to approve a cellular telephone antenna to be installed on his parents' property in that no private pecuniary benefit was realized by either Halstead or his parents, in relation to official actions taken by Halstead. 4. The Investigative Division will recommend that the State Ethics Commission take no further action in this matter; and make no specific recommendations to any law enforcement or other authority to take action in this matter. Such, however, does not prohibit the Commission from initiating appropriate enforcement actions in the event of Respondent's failure to comply with this agreement or the Commission's order or cooperating with any other authority who may so choose to review this matter further. Consent Agreement, at 1 -2. In considering the Consent Agreement, we initially note that Respondent did not participate in actions of the Board to approve the erection of the cellular tower on his parents' property. As for Respondent's participation in the January 14, 2008, Board vote to approve the attachment of the Cricket antenna to the cellular tower, we agree with the parties that no violation of Section 1103(a) of the Ethics Act occurred. Although the element of a use of authority of office was established by Respondent's participation in the vote, there was no prohibited private pecuniary benefit. Based upon the Stipulated Findings, there was no contractual basis for the Halsteads to receive any pecuniary benefit from the attachment of the Cricket antenna to the cellular tower. The May 5, 2003, lease agreement between AT &T and the Halsteads provided that no co- location revenues would be paid to the Halsteads. The December 2005 lease agreement between Cingular Wireless and the Halsteads contained the same agreements as the aforesaid May 5, 2003, lease agreement. Likewise, the lease agreement between Cingular and Cricket did not provide for any portion of the Cricket rental payments to be provided to the Halsteads. The parties have stipulated that the attachment of the Cricket antenna to the cellular tower did not result in any additional payment to the Halsteads by either Cingular or Cricket. The parties have further stipulated that Respondent's official action at the January 14, 2008, Board meeting to approve the attachment of the Cricket antenna to the cellular tower did not result in a financial gain to Respondent's parents. Finally, we note that there is no indication in the Stipulated Findings of any financial gain to Respondent as a result of the aforesaid official action taken by Respondent. Accordingly, we hold that no violation of Section 1103(a) of the Ethics Act occurred in relation to Respondent's participation to approve a cellular telephone antenna to be installed on his parents' property, in that no private pecuniary benefit was realized by either Respondent or his parents in relation to official actions taken by Respondent. Halstead, 08 -007 Page 12 We determine that the Consent Agreement submitted by the parties sets forth 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. As a Supervisor of Clinton Township, Respondent James Halstead ( "Halstead ") is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. 2. Halstead did not violate Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), in relation to his participation to approve a cellular telephone antenna to be installed on his parents' property, in that no private pecuniary benefit was realized by either Halstead or his parents in relation to official actions taken by Halstead. In Re: James Halstead, Respondent ORDER NO. 1523 File Docket: 08 -007 Date Decided: 7/22/09 Date Mailed: 8/4/09 As a Supervisor of Clinton Township, Respondent James Halstead ( "Halstead ") did not violate Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a), in relation to his participation to approve a cellular telephone antenna to be installed on his parents' property, in that no private pecuniary benefit was realized by either Halstead or his parents in relation to official actions taken by Halstead. BY THE COMMISSION, Louis W. Fryman, Chair