HomeMy WebLinkAbout1542 Kitner
In Re: Kirby Kitner, : File Docket: 08-059
Respondent : X-ref: Order No. 1542
: Date Decided: 12/15/09
: Date Mailed: 12/29/09
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Raquel K. Bergen
Nicholas A. Colafella
Mark Volk
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 allegations. 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 requested. 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.
Kitner, 08-059
Page 2
I.ALLEGATIONS:
That Kirby Kitner, a public official/public employee in his capacity as a Supervisor
for Carroll Township, Perry County, violated Sections 1103(a) and 1104(a) of the State
Ethics Act (Act 93 of 1998), 65 Pa.C.S. §§ 1103(a) and 1104(a), when he used the
authority of his public position as a Township Supervisor to vote on and approve final
subdivision plans for Stone Crest Manor at a time when he reasonably could expect to be
retained by Donald Stoner to provide services in the future in relation to Stone Crest
Manor; and when he failed to file Statements of Financial Interests for the 2005, 2006, and
2007 calendar years.
II.FINDINGS:
1. Kirby Kitner has served as a Carroll Township, Perry County, Supervisor since
approximately January 1998.
a. Carroll Township is a second class township governed by a three (3)
member Board of Supervisors.
b. Kitner served as Chairman of the Board of Supervisors for approximately the
past ten (10) years.
c. Kitner served on the Carroll Township Planning Commission prior to
becoming a Township Supervisor.
2. Professionally, Kitner owns two (2) business entities which he has registered with
the Pennsylvania Department of State, Kitco Enterprises, Inc. and Blastco, Inc.
a. These businesses are owned by Kitner.
b. Kitner’s wife, Tina L. Kitner, serves as the secretary/treasurer of the said
entities.
3. Articles of Incorporation on file with the Pennsylvania Department of State include
corporate filings for Kitco Enterprises, Inc. and Blastco, Inc.
a. Blastco, Inc. was created on May 4, 1989.
1. Entity number 1502386 was assigned to Blastco, Inc. by the
Department of State.
2. Kirby W. Kitner is the stated President.
3. Tina L. Kitner is the stated Treasurer.
b. Kitco Enterprises, Inc. was created on May 15, 1989.
1. Entity number 1507226 was assigned to Kitco Enterprises, Inc. by the
Department of State.
2. Kirby W. Kitner is the stated President.
3. Tina L. Kitner is the stated Treasurer.
c. Blastco, Inc. and Kitco Enterprises, Inc. both had registered business
addresses of 7214 Spring Road, New Bloomfield, PA 17068.
Kitner, 08-059
Page 3
d. [Address redacted] is Kitner’s primary residence [address].
4. The nature of Kitner’s business activities is blasting and excavating.
a. Kitner is the sole shareholder of Blastco, Inc. and Kitco Enterprises, Inc.
b. Kitner’s wife, Tina L. Kitner, serves as the secretary/treasurer of the said
entities.
c. Sporadically, the businesses have had employees other than Kitner and his
wife.
5. Carroll Township utilizes the following process for the review and approval of
development plans for proposed projects within the Township:
a. Plans are submitted to Carroll Township and reviewed by the Perry County
Planning Commission and the Carroll Township Planning Commission.
b. Any engineering questions are addressed by the Township Engineer, when
requested by the Township Planning Commission and/or the Board of
Supervisors.
c. Projects which conflict with zoning regulations, at the applicant’s request,
may proceed to the Zoning Hearing Board to address zoning issues.
d. The Planning Commission reviews all land development and subdivision
plans and recommends approval, approval with conditions, or denial of the
said plans to the Board of Supervisors, forfinal Township [action].
6. The Carroll Township Planning Commission serves in a purely advisory capacity
regarding land development and subdivision plans.
a. Recommendations made to the Board of Supervisors are not binding.
b. Projects are not approved until final approval is given by the Board of
Supervisors.
7. The Carroll Township Board of Supervisors reviews the recommendations of the
Carroll Township Planning Commission, the Township Solicitor, if any, and the
Township Engineer, if any, prior to making a decision on whether the subdivision
and/or land development plan is approved, approved with conditions, or denied.
8. Donald Stoner, of [address redacted], was a developer.
a. Stoner owned undeveloped acreage in Carroll Township that he wanted to
subdivide into residential home building sites.
b. Stoner did not reside in Carroll Township.
9. Stoner’s intended development of this acreage was presented to Carroll Township
in two (2) separate subdivision plans.
a. Plans for development 1 (Stoner Subdivision), an eight (8) lot subdivision,
initially were submitted to the Planning Commission for consideration at its
September 13, 2000, meeting.
1. Kitner was a member of the Township Board of Supervisors at that
Kitner, 08-059
Page 4
time.
b. Plans for development 2 (Stone Crest Manor) -- initially a thirteen (13) lot
subdivision -- were submitted to the Planning Commission for consideration
at its February 11, 2004, meeting.
1. There are references in Planning Commission minutes to a thirteen
(13) lot plan. However, the recorded final plan was for twelve (12)
lots.
10. Kirby Kitner did not serve on the Carroll Township Planning Commission during any
point in time in which either Stoner Subdivision or Stone Crest Manor Subdivision
Plans were before the Township.
a. Kitner was serving as Chairman of the Township Board of Supervisors
throughout the review process.
11. On September 13, 2000, Richard Castrano of Dawood Engineering, Inc. appeared
before the Carroll Township Planning Commission on behalf of Donald Stoner and
presented a sketch plan for an eight (8) lot subdivision on property that Donald
Stoner owned within the Township.
a. This property was along Rambo Hill Road and became commonly known as
and referred to as the Stoner Subdivision.
b. The Planning Commission reviewed the sketch plans and made comments
on accessibility.
c. No approvals or recommendations are recorded in the minutes as being
granted or made.
12. On January 10, 2001, Tony Trost, also with Dawood Engineering, Inc., presented
Stoner’s plan for an eight (8) lot subdivision along Rambo Hill Road before the
Carroll Township Planning Commission on behalf of Donald Stoner.
a. Minutes from the Planning Commission’s January 10, 2001, meeting include
detailed information on plan reviews and recommendations which were not
part of the September 13, 2000, meeting where only a sketch plan was
submitted.
13. The Carroll Township Planning Commission recommended conditional approval of
the Stoner Subdivision during its February 14, 2001, meeting.
14. Minutes from the Carroll Township Planning Commission meeting held on April 11,
2001, reflect that the Commission received a letter from the Board of Supervisors
relating to the Commission’s recommendation for approval of the Stoner
Subdivision. Minutes read in part:
a. “A letter from the Board of Supervisors to the Planning Commission
regarding the recommendation for approval of the Stoner Subdivision along
Rambo Hill Road was reviewed and discussed. The importance in applying
Section 1212B of the Ordinance in plan reviews was brought to light.”
15. In addition to review by the Carroll Township Planning Commission, subdivision
plans had to go before the Township’s Board of Supervisors for approval prior to
beginning construction work.
Kitner, 08-059
Page 5
a. The Stoner Subdivision went before the Board of Supervisors initially on
March 6, 2001.
b. The Stone Crest Manor Subdivision went before the Board of Supervisors
initially on May 3, 2005.* Kitner participated in the Board of Supervisors’
review and approval of both developments.
* [sic] [See, Fact Findings 25, 35 c].
16. Minutes from the Carroll Township Board of Supervisors’ March 6, 2001, meeting
include a review of an eight (8) lot subdivision for Donald Stoner (the Stoner
Subdivision).
a. Kitner was present and commented on the preliminary subdivision plans.
b. Kitner expressed concerns over grades, water drainage, bordering
properties ownership and unsigned plans.
c. The Board of Supervisors granted an extension of time for further review of
the plan to Stoner until March 21, 2001, by 3-0 vote.
17. The Carroll Township Board of Supervisors again reviewed the eight (8) lot
subdivision for Donald Stoner during its March 20, 2001, meeting.
a. Kitner was present and participated in this review and approval.
b. After further review of the plans and requested corrections, the Board voted
3-0 to approve the plan contingent upon a driveway permit.
18. Minutes from the Carroll Township Board of Supervisors’ March 20, 2001, meeting
include the following discussion and official action taken on Stoner’s eight (8) lot
subdivision (the Stoner Subdivision):
“Tony Trost of Daewood Engineering presented this plan. Adjacent land
owners were corrected, the site triangle was addressed, the engineer
reviewed storm water problems, and a maintenance agreement was
presented and signatures, etc. were obtained on the plan. Mr. Trost did
inform the Board of Supervisors that they are not going to pave the roadway.
Vice-Chairman Naylor pointed out that Ordinance 42, Section 1212B,
wherein subdivisions with more than 4 lots require submission of a water use
plan and felt [sic] the plan should have been sent to the engineer at the
Planning Commission level. After some discussion, a motion was made by
Vice-Chairman Naylor to approve the Stoner plan as presented with a notion
from the Solicitor that Ordinance 42 was overlooked and the Board must
accept it at this point, which was seconded by Supervisor Thiemann who
indicated it would also be contingent upon a driveway permit, and a
unanimous decision was made.”
19. Plans for Stoner’s eight (8) lot subdivision were presented for signatures at the
Board of Supervisors’ April 3, 2001, meeting.
a. Minutes reflect that “the plans were approved contingent upon the
construction and approval of the clear site triangle which has now been
completed and satisfaction was granted by Zoning/Permit Officer Armolt.
The plans were then signed at this time.”
b. Kitner was present at this meeting.
Kitner, 08-059
Page 6
20. After final plan signatures, the Carroll Township Board of Supervisors learned that
there were problems with DEP approvals and sight distance issuance.
a. These matters were addressed and resolved by the Board of Supervisors
during meetings held on May 1, 2001, May 15, 2001, and June 5, 2001.
b. Kitner was present at each of these meetings and participated in all relevant
Board actions.
21. Stoner’s Development 2, Stone Crest Manor, was initially presented before the
Carroll Township Planning Commission on February 11, 2004.
a. Stone Crest Manor was recorded and finally approved as a twelve (12) lot
subdivision.
1. Minutes refer to Stone Crest Manor as initially being a thirteen (13) lot
subdivision.
b. Construction on some residential home sites was underway on lots in the
Stoner Subdivision on February 11, 2004.
22. On February 11, 2004, Marlin Peters presented a 12 lot subdivision (initially 13 lot
subdivision) plan to the Carroll Township Planning Commission on behalf of Donald
Stoner, [for a subdivision] titled Stone Crest Manor.
a. Minutes from that meeting reflect that the “County comments were reviewed
and appear to be resolvable prior to approval of the plan,” and “it was
advised that the plan be sent to Rettew Associates for review.”
b. Rettew Associates was the Carroll Township Engineer.
23. The Carroll Township Planning Commission recommended denial of the Stone
Crest Manor subdivision plan introduced on February 11, 2004, during the
Commission’s May 12, 2004, meeting.
a. The plan was initially recommended for denial based on the review
conducted by Rettew Associates.
b. This plan was presented again at the Planning Commission’s June 9, 2004,
meeting.
24. At its June 9, 2004, meeting, the Carroll Township Planning Commission reviewed
the Stone Crest Manor preliminary subdivision plan previously presented during the
February 11, 2004, meeting.
a. The plan was then forwarded to the Township Board of Supervisors with a
recommendation for approval.
25. Stone Crest Manor subdivision was presented before the Carroll Township Board of
Supervisors for preliminary plan approval during its July 6, 2004, meeting.
a. Preliminary plan review was undertaken by the Planning Commission on
June 9, 2004.
26. Minutes from the Carroll Township Board of Supervisors’ July 6, 2004, meeting
include the following recorded discussion and official action taken granting
Kitner, 08-059
Page 7
preliminary approval to Stone Crest Manor:
a. “Terry Kline of Kline Engineering presented the Stone Crest Manor
preliminary subdivision plan for approval. Mr. Kline understood and agreed
that all conditions and concerns of the engineer, county planning
commission and township planning commission, regarding the preliminary
subdivision plan, would be addressed prior to approval of the final plan. A
motion was made by Vice-Chairman Baum to approve the Stone Crest
Manor preliminary plan with the option to explore the possibility of adding an
easement to add a road to connect to the Diane Everitt property and with the
understanding that all comments from the Engineer, County Planning and
Township Planning Commissions would be addressed, which was seconded
by Supervisor Naylor, and a unanimous decision.”
b. Kitner participated in the unanimous vote approving Stone Crest Manor.
27. Between August 11, 2004, and February 9, 2005, the Carroll Township Planning
Commission accepted and reviewed the final subdivision plan for Stone Crest
Manor.
a. The subdivision received final review on February 9, 2005.
b. Minutes of the February 9, 2005, meeting reflect the following:
“Terry Kline presented a final subdivision plan on behalf of Stone Crest
Manor. Max Schradley was also present to comment on the plan for Rettew
Associates. The comments were reviewed. A motion was made by Deimler,
seconded by Thieman to recommend alteration to Section 120-27.C.(1) that
a panhandle lot be allowed to facilitate access to a lot on the plan. Motion
carried unanimously. A motion was made by Deimler, seconded by Hair to
recommend alteration to Section 120-28.M.(3)(d) in order to allow a culvert
to be installed at an angle other than 90 degrees to the access road in order
to keep the flow consistent with the contour of the land at the crossing.
Motion carried unanimously. A motion was then made by Clymer, seconded
by Thiemann, to approve the plan conditional upon:
1. Signing, notarizing, and engineer certification of the plan,
2. The required improvement estimate shall be submitted for review and
approval,
3. All applicable certifications and affidavits should be shown on the
plan,
4. Stormwater management report summarizing the effect of the storm
water controls on the post-development condition, and inclusion of
landowner’s association agreement for those control structures.
5. Groundwater study and wetland determination report comments from
Rettew Associates shall be addressed.
Motion carried unanimously.”
28. The Stone Crest Manor final subdivision plan was presented for approval to the
Carroll Township Board of Supervisors during its May 3, 2005, meeting.
a. The Board of Supervisors approved the final subdivision plan by 2-1 vote,
with Kitner seconding the motion and voting for approval of the plan.
29. Minutes from the Carroll Township Board of Supervisors’ May 3, 2005, meeting
include the following recorded discussion and approval of the Stone Crest Manor
Kitner, 08-059
Page 8
final subdivision plans:
a. “The final Stone Crest Manor Subdivision Plan was presented to the Board
by Terry Kline. Max Schradley of Rettew reviewed his findings concerning
the Williams property which is in proximity to the proposed Stone Crest
Manor Subdivision. The Williams’ are having a water problem at their
residence. Max did a field study of the Williams’ property. His findings
indicated that the water problem on the Williams’ property is due to the fact
that the property is the lowest point of a 20 acre watershed. Max spoke with
Todd Brackovich of the Perry County Conservation District. Todd’s analysis
of the Williams’ property concurred with Max’s analysis. Rettew suggested
that the Williams could either intercept the watershed runoff and pipe or
swale the water past the dwelling, or they could relocate their dwelling.
Next, the Board completed their [sic] review of the Stone Crest Manor plan.
A motion was made by Vice-Chairman Baum to allow an alteration to the
plan of Section 120-27.C.(1) which will allow a pan-handle lot, which was
seconded by Supervisor Naylor, and a unanimous decision was made. A
motion was made by Supervisor Naylor to allow an alteration to the plan of
Section 120-28.M.(3)(D) to allow a culvert to be installed at an angle other
than 90 degrees to the access road, which was seconded by Vice-Chairman
Baum, and an [sic] unanimous decision was made. A motion was made by
Vice-Chairman Baum to approve the final Stone Crest Manor Subdivision
Plan with the condition that payment of outstanding review fees be paid, that
attorney’s approval of the security form be acquired, and that the security be
put in place, all within 60 days, which was seconded by Chairman Kitner.
Motion carried with Supervisor Naylor opposed due to the Williams’ water
problem.”
b. A sixty (60) day period was granted to Stoner, during which time he was to
meet certain conditions regarding his final subdivision plan for Stone Crest
Manor. The time period was granted to Stoner during the Board’s July 5,
2005, meeting, with Kitner in favor.
1. The motion passed by 2-0 vote with Supervisor Naylor abstaining.
30. At the same time (July 2004) that Stone Crest Manor was being considered by
Carroll Township’s Planning Commission and Board of Supervisors, Stoner was
having site development work done at Stoner Subdivision pursuant to Department
of Environmental Protection (DEP) permit number PAG-2-0050-004-004, monitored
by the Perry County Conservation District.
a. On June 21, 2004, the Pennsylvania Department of Environmental
Protection (DEP) issued permit number PAG-2-0050-004-004 for storm
water discharges associated with construction to Donald Stoner for
construction of Stone Crest Manor.
b. Included as part of the permit is information from Dale E. Smith d/b/a
Homestead Excavating, identifying him as the permitted excavator on the
project.
31. A storm water discharge permit was required by DEP for the type of development
planned by Stoner for Stone Crest Manor.
a. Also required was the identification of the excavator(s) to be used on the
project.
b. By way of agreement between DEP and the Perry County Conservation
Kitner, 08-059
Page 9
District, the Conservation District has supervisory responsibilities over these
permits within Perry County.
32. Sean Cully d/b/a C&C Construction, 5745 Spring Road, Shermansdale,
Pennsylvania, purchased the Stone Crest Manor subdivision from Donald Stoner on
or about September 1, 2005.
a. Kirby Kitner individually and/or d/b/a as Kitco Enterprises, Inc. and Blastco,
Inc. did not perform any excavating or blasting work for C&C Construction in
Stone Crest Manor.
1. Kitner declined to bid on any work on the site when requested by
C&C Construction.
33. Kirby Kitner did certain work for Donald Stoner on the Stoner Subdivision between
2003 and 2006. This work involved excavating work for a spec home, sand mound
work for a spec home, and certain excavating work on the private road. Prior to the
Stoner Subdivision [work], Kitner had never done any work for Donald Stoner.
34. Kitner performed services [at] Stoner Subdivision between 2003 and 2006. The
preliminary plans and final plans for the Stone Crest Manor subdivision came
before the Township Board of Supervisors in 2004 and 2005.
35. Between March 2003 and November 2004, Kitner received three (3) payments from
Donald Stoner for material, backhoe, hauling, excavation, labor, and other
equipment used at the Stoner Subdivision.
a. Work performed included basement excavation on a spec home, sand
mound repair/installation, excavation, and materials hauling for the private
road.
b. Some of the work performed by Kitner for Stoner occurred at the time Stone
Crest Manor was being reviewed by the Township Planning Commission and
Board of Supervisors.
c. The Board of Supervisors approved the preliminary subdivision plan for
Stone Crest Manor on July 6, 2004, and approved the final subdivision plan
for Stone Crest Manor on May 3, 2005.
1. Kitner participated in discussions of the Board and voted to approve
the preliminary subdivision plan and final subdivision plan for Stone
Crest Manor.
36. Business records of Donald Stoner include invoices from Kitner for services
performed at Stoner Subdivision between March 2003 and October 2004.
37. On February 8, 2006, Kitner issued an invoice to Stoner for services performed
between November 2005 and February 2006.
a. This invoice was for materials and equipment used for a sand mound at the
Matt Kirk property (Stoner Subdivision).
38. Kitner received payments from Stoner for work performed at the Stoner Subdivision
while the Board of Supervisors was reviewing subdivision plans for Stone Crest
Manor.
a. Kitner performed no work for Stoner or anyone else in regard to the Stone
Kitner, 08-059
Page 10
Crest Manor subdivision.
b. At no time did Kitner receive a financial gain from Stoner or any other party
in regard to his approval of the Stone Crest Manor subdivision as a Member
of the Board of Supervisors.
c. There is insufficient evidence to establish that Stoner’s use of Kitner for work
on the Stoner Subdivision, during the time in which the Board of Supervisors,
with Kitner as a Member, was approving the Stone Crest Manor preliminary
and final subdivision plans, resulted in a financial gain to Kitner, a member
of his immediate family, or a business with which either [Kitner or a member
of his immediate family is] associated.
THE FOLLOWING FINDINGS RELATE TO THE ALLEGATION THAT KIRBY KITNER
FAILED TO FILE STATEMENTS OF FINANCIAL INTERESTS AS A CARROLL
TOWNSHIP SUPERVISOR.
39. Kitner, in his official capacity as a Member of the Carroll Township Board of
Supervisors, was annually required to file a Statement of Financial Interests form by
May 1, containing information for the prior calendar year.
40. Carroll Township, Perry County, was annually sent blank Statement of Financial
Interests forms by the State Ethics Commission for completion by Township officials
and employees.
a. For calendar years 2005, 2006, and 2007, 25 blank forms were sent each
year to Carroll Township Secretary Natalie Sieber.
b. Blank Statement of Financial Interests forms for calendar [year] 2005 were
mailed to Carroll Township on December 20, 2005, while blank Statement of
Financial Interests forms for calendar years 2006 and 2007 were mailed on
December 21, 2006, and January 4, 2008, respectively.
c. Natalie Sieber annually distributed blank Statement of Financial Interests
forms for completion to Carroll Township officials/employees including
Kitner.
41. A Statement of Financial Interests compliance review was conducted by an
Investigator for the State Ethics Commission on or about October 1, 2008.
a. The review concluded that no Statements of Financial Interests for Kitner
were on file with the Township for the 2005, 2006, and 2007 calendar years.
b. Kitner served as a Carroll Township Supervisor during those years.
42. Kitner, in his official capacity as a Carroll Township Supervisor, failed to file
required Statement of Financial Interests forms for calendar years 2005, 2006, and
2007 by May 1, 2006, May 1, 2007, and May 1, 2008, respectively.
a. Kitner has a recollection of a timely filing of his calendar year 2005
Statement of Financial Interests, however no filing has been located in
support of his recollection.
III.DISCUSSION:
As a Supervisor for Carroll Township (“Township”), Perry County, since
approximately January 1998, Respondent Kirby Kitner (also referred to herein as
Kitner, 08-059
Page 11
“Respondent,” “Respondent Kitner,” and “Kitner”) has been 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 allegations are that Kitner violated Sections 1103(a) and 1104(a) of the Ethics
Act when he, as a Township Supervisor, used the authority of his public position to vote on
and approve final subdivision plans for Stone Crest Manor at a time when he reasonably
could expect to be retained by Donald Stoner to provide services in the future in relation to
Stone Crest Manor, and when he failed to file Statements of Financial Interests for the
2005, 2006, and 2007 calendar years.
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
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.
Section 1104(a) of the Ethics Act provides that each public official/public employee
must file a Statement of Financial Interests for the preceding calendar year, each year that
he holds the position and the year after he leaves it.
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.
Kitner has served as a Township Supervisor since approximately January 1998.
Kitner, 08-059
Page 12
The Township Board of Supervisors (“Board”) consists of three Members. For
approximately the past ten years, Kitner has served as Chairman of the Board. Kitner
served on the Carroll Township Planning Commission (“Township Planning Commission”)
prior to becoming a Township Supervisor.
In a private capacity, Kitner is the sole shareholder of two blasting and excavating
businesses named “Kitco Enterprises, Inc.” (“Kitco”) and “Blastco, Inc.” (“Blastco”). Articles
of Incorporation on file with the Pennsylvania Department of State list Kitner as President
of both Kitco and Blastco. Kitner’s spouse, Tina L. Kitner, serves as Secretary/Treasurer
for both Kitco and Blastco.
The Township utilizes the following process for the review and approval of land
development and subdivision plans for proposed projects within the Township. Plans are
submitted to the Township and reviewed by the Perry County Planning Commission and
the Township Planning Commission. The Township Planning Commission serves in a
purely advisory capacity regarding land development and subdivision plans and makes
non-binding recommendations to the Board as to whether such plans should be approved,
approved with conditions, or denied. Any engineering questions are addressed by the
Township Engineer when requested by the Township Planning Commission and/or the
Board. At the applicant’s request, projects that conflict with zoning regulations may
proceed to the Zoning Hearing Board to address zoning issues.
The Board reviews the recommendations of the Township Planning Commission
and any recommendations of the Township Solicitor or Township Engineer prior to
deciding whether a land development or subdivision plan is approved, approved with
conditions, or denied.Projects are not approved until final approval is given by the Board.
Donald Stoner (“Stoner”), a developer in Carlisle, Pennsylvania, owned
undeveloped acreage in the Township that he wanted to subdivide into two residential
home building sites. Plans for the first development, commonly known as and referred to
as “the Stoner Subdivision” (“Stoner Subdivision”), proposed an eight (8) lot subdivision of
property located along Rambo Hill Road. Plans for the second development, the Stone
Crest Manor Subdivision (“Stone Crest Manor”), initially proposed a thirteen (13) lot
subdivision but later proposed a twelve (12) lot subdivision.
On September 13, 2000, a representative of Dawood Engineering, Inc. (“Dawood”)
appeared before the Township Planning Commission on behalf of Stoner and presented a
sketch plan for the Stoner Subdivision. The Township Planning Commission reviewed the
sketch plan and made comments on accessibility. On January 10, 2001, another
representative of Dawood appeared before the Township Planning Commission and
presented Stoner’s plan for the Stoner Subdivision. At a meeting held on February 14,
2001, the Township Planning Commission recommended conditional approval of the
Stoner Subdivision.
At the Board meeting on March 6, 2001, the Board reviewed the preliminary plans
for the Stoner Subdivision. Kitner was present and expressed concerns over grades,
water drainage, bordering properties ownership, and unsigned plans. By unanimous vote,
the Board granted Stoner an extension of time for further review of the plan until March 21,
2001.
At the Board meeting on March 20, 2001, Kitner participated in the Board’s review
and approval of the plans for the Stoner Subdivision. The Board voted 3-0 to approve the
Stoner Subdivision plans contingent upon a driveway permit. Kitner was present when the
Stoner Subdivision plans were signed at the Board’s meeting on April 3, 2001, and he was
present and participated in all relevant Board actions that addressed and resolved issues
related to such plans at Board meetings on May 1, 2001, May 15, 2001, and June 5, 2001.
Kitner, 08-059
Page 13
On February 11, 2004, Marlin Peters presented a preliminary subdivision plan for
Stone Crest Manor (“the Stone Crest Manor Preliminary Plan”) to the Township Planning
Commission on behalf of Stoner. After reviewing the Stone Crest Manor Preliminary Plan
on June 9, 2004, the Township Planning Commission forwarded the Plan to the Board with
a recommendation for approval.
On June 21, 2004, the Pennsylvania Department of Environmental Protection
issued Stoner a permit for storm water discharges associated with the construction of
Stone Crest Manor. Dale E. Smith d/b/a Homestead Excavating was identified as the
permitted excavator on the Stone Crest Manor project.
At the Board meeting on July 6, 2004, Kitner participated in the Board’s unanimous
vote to approve the Stone Crest Manor Preliminary Plan. Following review and action by
the Township Planning Commission, the final subdivision plan for Stone Crest Manor (“the
Stone Crest Manor Final Plan”) was presented to the Board for approval at the Board
meeting on May 3, 2005. The Board voted 2-1 to approve the Stone Crest Manor Final
Plan with conditions, with Kitner seconding the motion and voting for approval. At the
Board’s July 5, 2005, meeting, Kitner participated in a 2-0 Board vote to grant Stoner a
sixty (60) day period during which to meet certain conditions regarding the Stone Crest
Manor Final Plan.
Between 2003 and 2006, Kitner performed work for Stoner on the Stoner
Subdivision. The work performed included basement excavation for a spec home, sand
mound repair/installation, and excavating work on a private road. Kitner had not
performed any work for Stoner prior to working on the Stoner Subdivision. Kitner issued
invoices to Stoner for work performed at the Stoner Subdivision between March 2003 and
October 2004 and between November 2005 and February 2006. Some of the work that
Kitner performed for Stoner occurred during the time the plans for Stone Crest Manor were
being reviewed by the Township Planning Commission and the Board.
On or about September 1, 2005, Sean Cully d/b/a C&C Construction (“C&C”)
purchased Stone Crest Manor from Stoner. Kitner declined to bid on any work on the site
when requested by C&C. Kitner performed no work for Stoner, C&C, or any other party
with regard to Stone Crest Manor. The parties have stipulated that at no time did Kitner
receive a financial gain from Stoner or any other party with regard to his approval of the
Stone Crest Manor subdivision as a Member of the Board.
As a Township Supervisor, Kitner was required to file a Statement of Financial
Interests (“SFI”) with the Township each year by May 1. On or about October 1, 2008, an
SFI compliance review was conducted for the Township by a Commission Investigator. It
was determined that no SFIs for Kitner were on file with the Township for the 2005, 2006,
and 2007 calendar years. Although Kitner recollects timely filing his SFI for calendar year
2005, no such filing has been located to support his recollection.
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 allegations
as follows:
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 Kitner’s action as a Carroll
Kitner, 08-059
Page 14
Township Supervisor to vote [on] and approve final
subdivision plans of Stone Crest Manor, in that
insufficient evidence exists to support a finding that
Kitner reasonably could have expected to be retained
by Donald Stoner to provide services on the Stone
Crest Manor Subdivision.
b. That a violation of Section 1104(a) of the Public Official
and Employee Ethics Act, 65 Pa.C.S. § 1104(a),
occurred when Kitner, as a Carroll Township
Supervisor, failed to timely file Statements of Financial
Interests for calendar years 2005, 2006, and 2007.
4. Kitner agrees to make payment in the amount of $500.00 in
settlement of this matter payable to the Commonwealth of
Pennsylvania and forwarded to the Pennsylvania State Ethics
Commission within thirty (30) days of the issuance of the final
adjudication in this matter.
5. Kitner agrees to file Statements of Financial Interests with Carroll
Township, through the Pennsylvania State Ethics Commission, for
calendar years 2005, 2006, and 2007, or to provide copies of any
remedial filing already made, within thirty (30) days of the issuance of
the final adjudication in this matter.
6. 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.
As for the allegation that Kitner violated Section 1103(a) of the Ethics Act, we note
that this Commission has held that it is a conflict of interest under Section 1103(a) for a
public official to use the authority of office for a private pecuniary benefit as to an
individual/entity with which he has an ongoing business relationship. Cf., Johnson, Order
1338; Miller, Opinion 89-024; Kannebecker, Opinion 92-010. Per the Stipulated Findings,
Kitner used the authority of office when he participated in Board actions regarding the
approval of the Stone Crest Manor Preliminary Plan and the Stone Crest Manor Final Plan
at a time when he was performing work for Stoner on the Stoner Subdivision.
However, given that the specific allegation as to Section 1103(a) was that the
aforesaid uses of authority of office occurred at a time when Kitner reasonably could have
expected to have been retained by Stoner to provide services on the Stone Crest Manor
subdivision, and given the parties’ agreement that insufficient evidence exists to support a
finding that Kitner reasonably could have expected to be retained by Stoner to provide
services on the Stone Crest Manor subdivision, we accept the parties’ recommendation for
a finding of no violation of Section 1103(a) based upon an insufficiency of evidence.
Accordingly, based upon the specific allegations and stipulations in this case, we
hold that Kitner did not violate Section 1103(a) of the Ethics Act in relation to his action as
a Township Supervisor to vote on and approve final subdivision plans for Stone Crest
Manor as there is insufficient evidence to establish that Kitner reasonably could have
Kitner, 08-059
Page 15
expected to be retained by Stoner to provide services on the Stone Crest Manor
subdivision.
We accept the parties’ recommendation for a finding that a violation of Section
1104(a) of the Ethics Act occurred regarding Kitner’s failure to timely file with the Township
SFIs for calendar years 2005, 2006, and 2007.
As part of the Consent Agreement, Kitner has agreed to make payment in the
amount of $500.00 payable to the Commonwealth of Pennsylvania and forwarded to this
Commission within thirty (30) days of the issuance of the final adjudication in this matter.
Kitner has further agreed to file SFIs for calendar years 2005, 2006, and 2007 with
the Township through this Commission or to provide copies of any remedial filing already
made within thirty (30) days of the issuance of the final adjudication in this matter.
We determine that the Consent Agreement submitted by the parties sets forth a
proper disposition for this case, based upon our review as reflected in the above analysis
and the totality of the facts and circumstances.
Accordingly, per the Consent Agreement of the parties, Kitner is directed to make
payment in the amount of $500.00 payable to the Commonwealth of Pennsylvania and
th
forwarded to this Commission by no later than the thirtieth (30) day after the mailing date
of this adjudication and Order.
Kitner is directed to file SFIs for calendar years 2005, 2006, and 2007 with the
Township through this Commission or to provide copies of any remedial filing already
th
made by no later than the thirtieth (30) day after the mailing date of this adjudication and
Order.
Compliance with the foregoing will result in the closing of this case with no further
action by this Commission. Noncompliance will result in the institution of an order
enforcement action.
IV.CONCLUSIONS OF LAW:
1. As a Supervisor for Carroll Township (“Township”), Perry County, since
approximately January 1998, Respondent Kirby Kitner (“Kitner”) has been 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. Based upon the specific allegations and stipulations in this case, Kitner did not
violate Section 1103(a) of the Ethics Act in relation to his action as a Township
Supervisor to vote on and approve final subdivision plans for Stone Crest Manor as
there is insufficient evidence to establish that Kitner reasonably could have
expected to be retained by Developer Donald Stoner to provide services on the
Stone Crest Manor subdivision.
3. A violation of Section 1104(a) of the Ethics Act occurred when Kitner failed to timely
file with the Township Statements of Financial Interests for calendar years 2005,
2006, and 2007.
In Re: Kirby Kitner, : File Docket: 08-059
Respondent : Date Decided: 12/15/09
: Date Mailed: 12/29/09
ORDER NO. 1542
1. Based upon the specific allegations and stipulations in this case, Kirby Kitner
(“Kitner”), a public official in his capacity as a Supervisor for Carroll Township
(“Township”), Perry County, did not violate Section 1103(a) of the Ethics Act in
relation to his action as a Township Supervisor to vote on and approve final
subdivision plans for Stone Crest Manor as there is insufficient evidence to
establish that Kitner reasonably could have expected to be retained by Developer
Donald Stoner to provide services on the Stone Crest Manor subdivision.
2. A violation of Section 1104(a) of the Ethics Act occurred when Kitner failed to timely
file with the Township Statements of Financial Interests (“SFIs”) for calendar years
2005, 2006, and 2007.
3. Per the Consent Agreement of the parties, Kitner is directed to make payment in the
amount of $500.00 payable to the Commonwealth of Pennsylvania and forwarded to
th
the Pennsylvania State Ethics Commission by no later than the thirtieth (30) day
after the mailing date of this Order.
4. Kitner is directed to file SFIs for calendar years 2005, 2006, and 2007 with the
Township through this Commission or to provide copies of any remedial filing
th
already made by no later than the thirtieth (30) day after the mailing date of this
Order.
5. Compliance with Paragraphs 4 and 5 of this Order will result in the closing of this
case with no further action by this Commission.
a. Non-compliance will result in the institution of an order enforcement action.
BY THE COMMISSION,
___________________________
Louis W. Fryman, Chair