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HomeMy WebLinkAbout1601 Wherry In Re: Earl Wherry, : File Docket: 11-012 Respondent : X-ref: Order No. 1601 : Date Decided: 4/12/12 : Date Mailed: 5/1/12 Before: Louis W. Fryman, 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.” A Stipulation of Findings and a Consent Agreement 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. I.ALLEGATIONS: That Earl Wherry, a public official/public employee in his capacity as a Summerhill Township Supervisor, Cambria County, violated Sections 1103(a), 1104(a), 1104(d) and 1105(b) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §§ 1103(a), 1104(a), 1104(d) and 1105(b), when he used the authority of his public position for a private pecuniary benefit when he participated in discussions and actions of the Township Board of Supervisors to terminate a contract with the Cambria County Building Code Enforcement Agency (“CCBCEA”) at or about the time the CCBCEA was issuing permits and determining usage of a structure he built; and when he failed to file a Statement of Financial Interests for the 2009 calendar year and when he failed to disclose on a SFI for the 2010 calendar year his occupation or profession, real estate interests, and business interests transferred to immediate family members. II.FINDINGS: 1. Earl Wherry has served as a Summerhill Township (“Township”) Cambria County Supervisor from January 2010 to the present. a. Wherry served in 2010 and 2011 as the Vice-Chairman of the Board of Supervisors (“Board”). b. Wherry previously served as a Township Supervisor from approximately 1988 through 2005. Wherry, 11-012 Page 2 2. Supervisors are compensated $1,875.00 annually for their services as a Member of the Board. a. Wherry receives his Supervisor salary on a monthly basis in the amount of $156.25 (gross). 3. Professionally, Wherry has been a self-employed excavator for approximately 30 years. a. Wherry’s business is based from his home. 1. Wherry resides on Shawnee Road in Sidman, PA. b. Wherry employs his sons on an “as needed” basis. 1. E.T. Wherry is Wherry’s eldest son. c. Wherry was employed as a truck driver for Pro Disposal on an “as needed basis” from approximately 2006 to 2008. 4. Summerhill Township is a Second Class Township governed by a three Member Board of Supervisors (“Board”). a. The Board holds regular monthly meetings at the Township building on the first and third Tuesday of each month. b. Special meetings are held when necessary. c. The Township Solicitor attends Township meetings only upon request. 5. Voting at Township meetings occurs via a motion which is seconded. a. A motion is considered to be approved after a second to the motion is made. 1. No actual vote is taken on the motion. b. Objections and abstentions are not always noted within the minutes. c. The minutes of each meeting are approved for accuracy at each subsequent meeting. 6. Township Supervisors review an expense report at each regular monthly meeting that lists Township expenses from the prior month’s meeting to the current meeting. a. The expense report lists the vendor and payment amount. b. Invoices are provided to Supervisors for review by the Secretary at each meeting with the corresponding check. 7. Signature authority over Township accounts is maintained by the Secretary/Treasurer and all three Supervisors. a. Township checks require the live signatures of any combination of three authorized signatories. Wherry, 11-012 Page 3 b. Township checks are signed at meetings after the Board approves the monthly expenditures. 8. The Uniform Construction Code (“UCC”) enacted in April 2004 provides for the enforcement of building codes. a. Municipalities can enforce provisions of the UCC by either an employee of the municipality or by contract with a private enforcement agency. 9. The Township entered an Inter-Municipal Agreement (“Agreement”) with the Cambria County Building Code Enforcement Agency (“CCBCEA”), dated April 6, 2004. a. The Township administered building code/permit applications prior to the implementation of this Agreement. b. The Agreement established the CCBCEA as the sole UCC enforcement entity within the Township. c. The term of the Agreement spanned an initial period of five years with an automatic one year renewal each year thereafter. d. Withdrawal from the Agreement required a written notice to the CCBCEA at least ninety (90) days prior to the end of the initial term or extension thereof. e. The Agreement was signed by Township Supervisor William Evancic, and attested to by then Township Secretary Loretta Burneff. 10. Township Ordinance No. 2004-70, dated August 3, 2004, established the Township’s participation with the CCBCEA relative to the administration and enforcement of the UCC and officially recognized the Agreement. a. The Ordinance was signed by Supervisors Evancic, Edward Hudak, and Wherry, and attested to by L. Burneff. 11. The CCBCEA was established in 2004 to administer the UCC, issue building permits, and perform property maintenance upon request for municipalities participating in an Inter-Municipal Agreement (Agreement). a. The CCBCEA is a non-profit organization that does not charge municipalities for the services provided. 1. Townships are assessed a one-time initial fee to enter into a service agreement with the CCBCEA. b. Revenue for the CCBCEA is generated through administrative fees charged for the issuance of permits. 12. The CCBCEA has the authority to file a complaint for suspected violations of the UCC through a local magisterial district court. a. Any financial penalties imposed by the local Magistrate are to be credited to the municipality. 13. The CCBCEA attempts to dispose of violations/complaints relating to the UCC through voluntary compliance with applicants prior to forwarding violations/complaints to the local magistrate. Wherry, 11-012 Page 4 a. The CCBCEA does not regularly pursue violations of the UCC to the local magistrate. 1. Each potential violation is handled on a case-by-case basis. 14. The Cambria County 9-1-1 Department of Emergency Services (“DES”) administers 9-1-1 emergency services and emergency plans within Cambria County. a. The DES is responsible for assigning addresses for new structures and maintaining addresses of existing structures for 9-1-1 emergency purposes. b. No written guidelines exist that designate the requirements for a 9-1-1 address. 15. The 9-1-1 Technology Manager of DES is responsible for the recommendation and determination of the 9-1-1 address to structures that are inhabited and/or have utility service (i.e., plumbing, electrical, telephone line, etc.). a. Addresses are assigned by the DES 9-1-1 Technology Manager upon request by an applicant. 1. Requests are completed by contacting the 9-1-1 Technology Manager via email, phone, appointment, etc. 16. The CCBCEA provides the Township with a monthly activity report documenting the previous month’s building permit activity. a. The reports list the property owner, 9-1-1 address, permit approval date, permit number and proposed work. b. The reports are maintained by the Secretary at the Township municipal building. c. Suspected violations and/or complaints relating to the UCC were not listed on the report. 1. Issues relating to the UCC were communicated directly between the CCBCEA and the owner of the property in question. 17. The CCBCEA required applicants to submit a Municipal Authorization form prior to issuing a building permit. a. The form included a section documenting the property owner, address, and description of proposed construction/alteration. b. A checklist on the form identified the Municipal ordinances, subdivision or land development approval, and road occupancy/driveway permitting requirements that had been reviewed and/or approved by a Municipal Officer. 1. The Supervisors and Secretary/Treasurer were the authorized Township representatives to sign the form. c. The form was to be forwarded to the CCBCEA by the Township representative or property owner. Wherry, 11-012 Page 5 18. Applicants submit either a residential or commercial building permit application to the CCBCEA upon the approval of the Municipal Authorization form. a. The CCBCEA requires that a building permit application be submitted for work or improvements to a residential or commercial building. 19. The CCBCEA performs a plan review prior to issuing a building permit for a commercial or residential structure. a. Professional engineer designs are required for a commercial building application but not for a residential building. b. The issuance of a building permit authorizes a property owner to initiate the construction or alteration to a building. c. The CCBCEA relies on information received from an applicant in determining the usage (residential or commercial) of a structure and is not pro-active in determining the usage of structures. 20. The CCBCEA performs various inspections of a residential or commercial building structure during the construction to include energy, electrical, mechanical, and plumbing inspections. a. The types of inspections vary among structures based on the requirements prescribed in the UCC. b. A commercial structure typically requires more inspections than a residential structure. 21. CCBCEA requires a final inspection of commercial/residential buildings at the completion of the construction. a. The approval of a final inspection resulted in the CCBCEA issuing a Building Occupancy Permit (“BOP”) for the structure. 22. The CCBCEA does not require professional engineer designs, a final inspection, or a Building Occupancy Permit (“BOP”) for a residential, detached accessory structure (garage, shed), less than 1,000 square feet in area. a. A BOP is required for a structure that is less than 1,000 square feet, but not accessory to a detached, one-family dwelling. 23. In or about September 2009 Wherry planned for the construction of a garage on his property. a. The garage was to be used by Wherry’s sons, and various other relatives of Wherry, as a location at which to work on/repair vehicles for family and friends. 24. Wherry completed a (Township) Municipal Authorization form, dated September 29, 2010, for a 24’ X 36’ storage garage. a. The form listed the property address of Shawnee Road, Sidman, PA. b. The form documented Wherry as the contractor for the structure and that the required Municipal ordinances for the structure had been approved. Wherry, 11-012 Page 6 c. The form was signed and approved by Supervisor Bassett as the authorized Municipal Officer, dated September 30, 2009. 25. Wherry’s son, E.T. Wherry, completed a CCBCEA residential building permit application, dated September 30, 2009, for a 24’ X 36’ storage shed. a. E. T. Wherry completed the application at Wherry’s direction. b. The application documented the location/9-1-1 address for the structure as Shawnee Road, Sidman, PA. c. Wherry is listed as the principal contractor for the construction of the shed. d. The estimated cost of the construction is listed at $6,000.00. e. Wherry reviewed and signed the application. 26. A drawing of the structure’s location in relation to Wherry’s house was attached with the application. a. The drawing documented the structure’s proximity to Wherry’s house being 400 feet. b. The drawing documented the structure’s proximity to Onnalinda Road being 30 feet. 27. Wherry issued payment in the amount of $10.00 for the building permit application fee. a. The CCBCEA deposited the check on or about October 6, 2009. 28. UCC Section 403.1(b)(3) … provides that structures less than 1,000 square feet (24’ X 36’ = 864 square feet) and that are accessory to a detached one-family dwelling, are exempt from Building Occupancy Permit (“BOP”) requirements. a. The CCBCEA issues waiver permits for any structures meeting the definition prescribed in UCC Section 403.1(b)(3). 1. The CCBCEA initially issued Wherry a waiver permit for the building based upon the information Wherry provided on the building permit application. 29. Supervisor Leeland Bassett and Wherry (as a Township resident) contacted the CCBCEA Building Code Officer and Chief Administrator, Barbara Frantz, via telephone on multiple occasions at or about the time of Wherry’s submission of the building application in regards to the appropriate requirements that needed to be met in accordance with the UCC. a. Frantz questioned Wherry about his usage of the structure. 1. Frantz believed the structure was to be used for commercial purposes. b. Wherry identified the structure as a shed and claimed it would be used to repair vehicles, but not for commercial purposes. 1. Wherry indicated repairs were for his and/or his family’s vehicles. Wherry, 11-012 Page 7 30. Frantz informed Wherry that a garage utilized for commercial business purposes required a BOP and that fines could be imposed by the CCBCEA if the requirements were not met. 31. In or about the fall of 2009, Bassett expressed his interest to Wherry and Frantz in withdrawing the Township from the CCBCEA during discussions relating to Wherry’s building permit application. 32. In or about July 2009 Supervisor Bassett initiated contact with Bureau Veritas of North America (“BVNA”). a. Bureau Veritas of North America is a global company that performs services, to include inspections, testing/analysis, asset management, audits, training, classification, and consulting, for client products, infrastructures and processes to meet standards and regulations in terms of quality, health and safety, environmental protection and social responsibility. 33. At the Township’s August 4, 2009, regular meeting, BVNA Representative Grant Kanish presented for Board consideration contracted services offered by his company. a. The presentation was arranged by Supervisor Leeland Bassett. b. Wherry was not a Supervisor at that time. c. Wherry did not attend the meeting as a Township resident. 34. Kanish emailed then Secretary/Treasurer Joseph Burneff a generic service contract on August 5, 2009. a. Kanish provided the Township with the generic service contract for UCC enforcement services with the expectation of securing a contract. b. Kanish requested the Township Solicitor to review the contract. c. Kanish offered the option to the Township of entering into a joint service agreement with Croyle Township and Portage Township. 35. The Board did not enter into a contract with BVNA at that time. a. Supervisor Bassett was the only member of the Board proposing to withdraw the Township from the contract with CCBCEA in 2009. 36. On or about October 2, 2009, the CCBCEA approved Wherry’s building permit application for the storage garage as an accessory structure under 1,000 square feet to a detached, one family dwelling. a. The CCBCEA issued permit #59-09-23E for the construction. b. Frantz approved the permit as a residential structure based on the information provided by Wherry that the garage would not be used for commercial purposes. 37. On or about January 27, 2010, Wherry contacted the Cambria County 9-1-1 Technology Manager, Timothy Spangler, via telephone requesting that a 9-1-1 address be assigned for his garage. Wherry, 11-012 Page 8 a. The garage Wherry was referring to was the storage shed that Wherry constructed in or about September 2009. b. Wherry did not inform Spangler of the garage’s intended use. c. Wherry identified the garage as Earl Wherry’s Garage. d. Wherry requested that a 9-1-1 address be assigned to the garage for emergency response purposes. e. Wherry was a Member of the Summerhill Township Board of Supervisors at this time. 38. Spangler assigned Wherry’s garage the address XXX Onnalinda Road, Sidman, PA. a. Spangler forwarded a letter to Wherry, dated February 10, 2010, identifying the new address for the structure. b. Spangler forwarded the same letter to the Cambria County Tax Assessment Office, the County Sewage Enforcement Office and the CCBCEA via email, dated February 10, 2010. 1. It is standard procedure for Spangler to forward newly assigned addresses to the agencies identified. 39. Spangler’s email to CCBCEA was addressed specifically to Frantz. a. Frantz then concluded the “garage” would be utilized by Wherry for commercial purposes as a result of Wherry applying for the 9-1-1 address. 40. Frantz subsequently contacted the CCBCEA Solicitor, William Gleason Barbin, on or about February 10, 2010, inquiring how the CCBCEA should address Wherry’s building permit as a result of her belief that Wherry did not apply for the correct building permit. a. Barbin advised Frantz to provide Wherry the opportunity to re-apply for a change-of-use building permit as a result of the property obtaining a new address. 1. Attorney Barbin also served as the Township Solicitor at that time. b. Wherry was a Summerhill Township Supervisor at the time of Frantz’s contact with Barbin. 41. As a result of the determination that Wherry’s garage was no longer an accessory structure detached from a one family dwelling, a plan review, final inspection and a BOP were required. a. The garage is no longer considered an accessory structure detached from a one family dwelling as a result of the garage being located on a separate split-parcel from Wherry’s residence. 42. Subsequent to February 10, 2010, Frantz contacted Wherry on his home telephone in response to Attorney Barbin’s advice. Wherry, 11-012 Page 9 a. Frantz informed Wherry that the garage required a change-of-use application, a plan review and building permit as a result of it no longer being an accessory structure detached from a one family dwelling. b. Frantz informed Wherry that the garage required a commercial building permit if it was to be used for commercial business purposes. c. Wherry claimed the garage was not a business, but used to repair the vehicles of family and friends. 1. Wherry claimed the garage was a residential structure and did not require a commercial building permit. 43. After taking office, Wherry and Bassett discussed the Township’s possible withdrawal from the CCBCEA. a. Supervisor Bassett had been a proponent of withdrawing from the CCBCEA since at least August 2009. b. Supervisor Bassett informed Wherry of his intentions to arrange a presentation by BVNA at a regular meeting. c. Wherry was receptive to Bassett’s idea of BVNA’s presentation. d. Supervisor Bassett did not inform Supervisor Evancic about the presentation based on the understanding Evancic was a proponent of the CCBCEA. 44. Supervisor Bassett arranged a second presentation by BVNA at the Township’s February 16, 2010, regular meeting regarding BVNA’s services. 45. At the Township’s February 16, 2010, regular meeting, Kanish of BVNA presented the services offered by BVNA. a. Kanish provided a draft copy on BVNA’s proposed services to each Supervisor for review at the meeting. b. Wherry was present at the meeting. 46. After Kanish’s presentation, a motion was made by Bassett and seconded by Wherry to send a withdrawal notice to the CCBCEA indicating the Township’s intention to withdraw in 90 days. a. The minutes document the motion carried without a specific record of the votes. 47. On or about February 24, 2010, Bassett and Wherry directed Township Secretary Burneff to generate a letter to the CCBCEA indicating the Township’s intention to withdraw from the Agreement in 90 days. a. The letter documented the Township’s intentions to withdraw from the CCBCEA effective June 1, 2010. b. The letter signed by Bassett was dated February 24, 2010. 48. Frantz responded to the Township’s withdrawal notice with a letter, dated March 1, 2010, acknowledging the Township’s withdrawal, which would make the effective date December 31, 2010, and citing Article 7, Paragraph B of the 2004 Ordinance. Wherry, 11-012 Page 10 a. Township Ordinance No. 2004-70, Article 7, Paragraph B states the following: “After the expiration of the five year period, participation shall continue; such participation shall continue on a year to year basis unless ninety (90) days prior to the beginning of the fiscal year, the Municipality notifies the Agency, in writing, of its intent to repeal this Ordinance.” 49. A residential building permit application for a “Change of Use-Electrical” was completed and submitted by E.T. Wherry subsequent to March 1, 2010. a. The application was completed by E. T. Wherry at Wherry’s direction. b. The application documented the location/9-1-1 address for the structure as XXX Onnalinda Rd., Sidman, PA. c. The application listed Wherry as the property owner at the mailing address of XXX Shawnee Rd., Sidman, PA. d. The estimated cost of the construction was listed as $7,000.00. e. The proposed work was listed as “Added electrical box for lighting, tools.” f. The added electrical work was listed as “100 amp, Penalec Company.” g. The application was reviewed and signed by Wherry on or about March 9, 2010. 50. Respondent Wherry completed and signed an affidavit with the “Change of Use” building permit application indicating that he would be performing the work. a. The affidavit was notarized by Bassett, dated March 9, 2010. b. The affidavit established that the work would not be performed by a contractor. 51. The “Change of Use” building permit application for added electrical required a Plan Review, final inspection and the issuance of a BOP. 52. On or about March 16, 2010, CCBCEA Building Inspector Joe Muscatello approved a Plan Review for Wherry’s “Change of Use” building permit application. 53. The CCBCEA issued Wherry building permit #59-10-02R, dated March 16, 2010, for the project location at Onnalinda Road. a. The permit was issued for a “Change of Use-24’ X 36’ detached accessory structure-residential use only.” b. The permit authorized construction for 180 days from issuance (March 16, 2010, to September 11, 2010). c. The permit instructed that the applicant is to contact the CCBCEA for the final inspection of the property. d. The permit was not a substitute for a BOP. Wherry, 11-012 Page 11 e. The building permit was signed by Frantz. 54. The electrical box was added with the intention to use electrical tools, machinery and lighting in order to repair vehicles. 55. The UCC provides that a commercial building cannot be used or occupied without a BOP, as per PA UCC, Section 403.46, Certificate of Occupancy. a. Potential penalties that can be imposed … per PA UCC, Section 403.46 mirror … potential penalties for use/occupancy of a residential building without a BOP. b. The CCBCEA did not impose upon Wherry penalties, to include an Order to Show Cause/Order to Vacate, for occupying a commercial building without the completion of the applicable commercial building inspections or the issuance of a BOP for a commercial structure based on the information provided by Wherry that the garage is not used for commercial purposes. 56. Wherry’s garage is not marked or advertised, to include business signs, business cards, telephone number, etc., that identify it as a commercial business. a. The Department of State does not have corporate filings of any business that is located at Wherry’s garage or in the name of Earl Wherry. b. No official/formal business of any kind is documented at the address of Wherry’s garage. 57. At the October 5, 2010, Township regular meeting, the Board reviewed a June 15, 2010, letter from Solicitor Dennis M. McGlynn to Bassett, confirming Frantz’s March 1, 2010, letter relating to the Township’s withdrawal being effective at the end of the year. a. The letter was followed by a Board discussion about withdrawing from the Agreement. b. Bassett and Wherry reaffirmed the Township’s intentions to withdraw from the Agreement at the end of the year. 1. Evancic was not in favor of the withdrawal. c. The Board did not vote on the issue. 58. Wherry failed to contact the CCBCEA upon completion of the construction (added electrical work) for final inspection, as required, within 180 days of the issuance of permit #59-10-02R. a. Wherry did not initiate any contact with the CCBCEA regarding the final inspection within the allotted time. b. The permit applicant is the responsible party regarding contacting the CCBCEA to arrange a final inspection. 59. Frantz ultimately contacted Wherry sometime after September 11, 2010, regarding the final inspection of the structure. a. Wherry directed E. T. Wherry to arrange the final inspection for the garage as a result of Frantz’s contact. Wherry, 11-012 Page 12 1. This occurred after the 180 day period when the final inspection was due. b. E. T. Wherry subsequently contacted the CCBCEA and arranged the final inspection for the garage. 60. On November 2, 2010, the final inspection of Wherry’s garage for building permit #59-10-02R was performed by CCBCEA. 61. After completing the inspection, CCBCEA Inspector Joe Muscatello informed his supervisor, Ben Grush, Chief Inspector of the CCBCEA, that a re-inspection would be needed for Wherry’s garage. 62. The discrepancies listed for the re-inspection were corrected and the final inspection sheet was marked as approved by Muscatello on November 3, 2010. 63. A letter dated November 3, 2010, from Township Secretary/Treasurer Shirley Custer to Frantz reaffirmed the Board’s decision taken at the October 5, 2010, regular meeting to withdraw from the Agreement at the end of the year. a. The letter referenced the Township’s withdrawal notice of June 2010. b. Questions regarding the letter were to be directed to Bassett. c. Supervisor Bassett directed Custer to generate the letter. 64. At the December 7, 2010, regular Township meeting, the Board received a proposed service agreement from BVNA for review. a. The Board agreed that a 30 day notice would be submitted if the Township was not satisfied with BVNA’s services. b. Wherry was present at the meeting. 65. At the December 21, 2010, regular Township meeting, Wherry motioned, seconded by Bassett, to accept the service agreement with BVNA. a. The December 21, 2010, minutes note the motion carried without a specific record of the votes. 1. No “abstention” or “nay” votes were recorded. 2. Wherry was present at the meeting. 66. A letter dated December 27, 2010, from the Township notified CCBCEA that the Board approved utilizing the services of BVNA. a. The letter documented that the CCBCEA was responsible for the follow-up and completion of the applications currently in progress and that no new applications should be taken by the CCBCEA. 1. New applications were to be referred to BVNA. b. Bassett directed the letter be issued. 67. The Township’s service agreement with BVNA became effective January 1, 2011. Wherry, 11-012 Page 13 a. The agreement was signed by Bassett, dated December 21, 2010, and signed by BVNA Western PA Regional Manager William A. Kulbacki (not dated). b. The agreement provides that permit fees were to be collected by BVNA and that BVNA was to remit 10% of the fees to the Township. 68. After receiving the December 27, 2010, letter from the Township, Frantz contacted Wherry in regards to submitting the affidavit affirming the garage was not being used for commercial purposes. a. Wherry never submitted the affidavit as required by the CCBCEA. 69. The CCBCEA did not impose upon Wherry penalties for occupying a residential building without a BOP. a. The CCBCEA was dismissed by the vote of the Board of Supervisors, including Wherry, and was no longer performing services in the Township. 70. The CCBCEA returned Wherry’s file to the Township on or about February 17, 2011, as a result of the Township withdrawing from the Agreement. a. The CCBCEA did not pursue further action relating to the property after returning Wherry’s file to the Township. THE FOLLOWING FINDINGS RELATE TO WHERRY’S FAILURE TO FILE A STATEMENT OF FINANCIAL INTERESTS FOR CALENDAR YEAR 2009 AND DISCREPANCIES ON WHERRY’S STATEMENT OF FINANCIAL INTERESTS FORM(S) FOR CALENDAR YEAR 2010. 71. Section 1104(a) of the State Ethics Act sets forth that public officials are to file a Statement of Financial Interests (“SFI”) form with the governing authority of the st political subdivision within which appointed or elected no later than May 1 of each year that the individual holds such a position and of the year after the individual leaves such a position. 72. Wherry has served as a Summerhill Township Supervisor consecutively from January 2010 to the present and would be required to file Statements of Financial Interests for each year served in office and for the year after leaving office. 73. On June 15, 2011, a Statement of Financial Interests compliance review was conducted for Summerhill Township by the Investigative Division of the State Ethics Commission. a. The compliance review determined that Wherry had no SFI on file for calendar year 2009. b. Wherry asserts that he did not believe he was required to file a 2009 calendar year Statement of Financial Interests, since he did not hold office until year 2010. c. Wherry had an SFI on file for calendar year 2010, dated January 6, 2011. 74. Section 1104(d) of the State Ethics Act provides that no public official shall be allowed to take the oath of office or enter or continue upon his duties, nor shall he Wherry, 11-012 Page 14 receive compensation from public funds, unless he has filed a statement of financial interests form. a. Wherry received yearly compensation from the Township in his position as a Township Supervisor in the total amount of $1,875.00 in 2010. 75. Wherry failed to complete all information requested on his calendar year 2010 Statement of Financial Interests form to the best of the knowledge, information and belief, as responses to various sections of required information were omitted. a. Wherry omitted a response to various sections believing same were not applicable to his financial status, however, he acknowledges that no response equates to a deficient filing and an incomplete form. III.DISCUSSION: As a Township Supervisor for Summerhill Township (“Township”), Cambria County, Pennsylvania, from January 2010 to the present, Respondent Earl Wherry, hereinafter also referred to as “Respondent,” “Respondent Wherry,” and “Wherry,” has been a public officialsubject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. The allegations are that Wherry violated Sections 1103(a), 1104(a), 1104(d) and 1105(b) of the Ethics Act: (1) when he used the authority of his public position for a private pecuniary benefit when he participated in discussions and actions of the Township Board of Supervisors (“Board”) to terminate a contract with the Cambria County Building Code Enforcement Agency (“CCBCEA”) at or about the time the CCBCEA was issuing permits and determining usage of a structure he built; (2) when he failed to file a Statement of Financial Interests (“SFI”) for the 2009 calendar year; and (3) when he failed to disclose on an SFI for the 2010 calendar year his occupation or profession, real estate interests, and business interests transferred to immediate family members. 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 Wherry, 11-012 Page 15 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. Section 1104(d) of the Ethics Act provides that no public official shall be allowed to take the oath of office, enter or continue upon his duties, or receive compensation from public funds unless he has filed a Statement of Financial Interests as required by the Ethics Act. Section 1105(b) of the Ethics Act and its subsections detail the financial disclosure that a person required to file the Statement of Financial Interests form must provide. Section 1105(b)(2) of the Ethics Act requires the filer to disclose on the Statement of Financial Interests his occupation or profession. Section 1105(b)(3) of the Ethics Act requires the filer to disclose on the Statement of Financial Interests any direct or indirect interest in any real estate which was sold or leased to or purchased or leased from the Commonwealth, any of its agencies or political subdivisions, or which was the subject of any condemnation proceedings by the Commonwealth or any of its agencies or political subdivisions. Section 1105(b)(10) of the Ethics Act requires the filer to disclose on the Statement of Financial Interests any financial interest in a business with which he is or has been associated in the preceding calendar year which has been transferred to a member of his immediate family. The term “financial interest” is defined in the Ethics Act as “[a]ny financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness.” 65 Pa.C.S. § 1102. 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. Professionally, Respondent Wherry is a self-employed excavator and operates his business from his home. Respondent has served as a Township Supervisor from January 2010 to the present. Respondent served as Vice-Chairman of the Board in 2010 and 2011. Respondent previously served as a Township Supervisor from approximately 1988 through 2005. The Board consists of three Members. Supervisors receive compensation in the amount of $1,875.00 per year for serving on the Board. Wherry, 11-012 Page 16 In 2004 the Township entered an Inter-Municipal Agreement (“Agreement”) with the Cambria County Building Code Enforcement Agency (“CCBCEA”). The Agreement was dated April 6, 2004. The Agreement established the CCBCEA as the sole Uniform Construction Code (“UCC”) enforcement entity within the Township. The term of the Agreement spanned an initial period of five years with an automatic one year renewal each year thereafter. Withdrawal from the Agreement required a written notice to the CCBCEA at least ninety (90) days prior to the end of the initial term or extension thereof. In 2009 Respondent applied to the CCBCEA for a residential building permit to construct a 24’ X 36’ storage garage (hereinafter also referred to as the “Garage”) approximately 400 feet from his home. The location of Respondent’s property where the Garage was to be built was Shawnee Road, Sidman, Pennsylvania. At the time of Respondent’s submission of the aforesaid building permit application, Respondent was not serving as a Township Supervisor. Respondent and Township Supervisor Leland Bassett (“Bassett”) telephoned the CCBCEA Building Code Officer and Chief Administrator, Barbara Frantz (“Frantz”), on multiple occasions at or about the time of Respondent’s submission of the building permit application, regarding UCC requirements. Frantz questioned Respondent about his usage of the structure. Frantz believed the structure was to be used for commercial purposes. Respondent identified the structure as a shed and claimed it would be used to repair his and/or his family’s vehicles but not for commercial purposes. Frantz informed Respondent that a garage utilized for commercial business purposes required a Building Occupancy Permit and that fines could be imposed by the CCBCEA if the requirements were not met. In or about the fall of 2009, during discussions relating to Respondent’s building permit application, Bassett expressed to Respondent and Frantz his interest in withdrawing the Township from the CCBCEA. Respondent was not a Supervisor at that the time. On or about October 2, 2009, Frantz/CCBCEA approved Respondent’s building permit application and issued a building permit for the Garage based upon information provided by Respondent that the Garage would not be used for commercial purposes. Frantz/CCBCEA approved the building permit for the Garage as an accessory structure under 1,000 square feet to a detached, one family dwelling. In January or February 2010, after taking office as a Township Supervisor, Respondent obtained a 9-1-1 address for the Garage for emergency response purposes. As a result of Respondent applying for the 9-1-1 address, Frantz concluded the Garage would be utilized by Respondent for commercial purposes. On or about February 10, 2010, Frantz contacted Attorney William Gleason Barbin (“Barbin”), who served as both CCBCEA Solicitor and Township Solicitor, and asked how the CCBCEA should address Respondent’s building permit as a result of Frantz’s belief that Respondent did not apply for the correct building permit. Barbin advised Frantz to provide Respondent the opportunity to re-apply for a change-of-use building permit as a result of the property obtaining a new address. Frantz subsequently informed Respondent that the Garage required a change-of- use application, a plan review and building permit as a result of it no longer being an accessory structure detached from a one family dwelling. Frantz informed Respondent that the Garage required a commercial building permit if it was to be used for commercial business purposes. Respondent claimed the Garage was not a business, but used to repair the vehicles of family and friends. Respondent claimed the Garage was a residential structure and did not require a commercial building permit. Bassett had been a proponent of withdrawing from the CCBCEA since at least August 2009. After Respondent took office as a Township Supervisor, Respondent and Wherry, 11-012 Page 17 Bassett discussed the Township’s possible withdrawal from the CCBCEA. Bassett informed Respondent of his intentions to arrange for a presentation at a Board meeting by a business named “Bureau Veritas of North America” (“BVNA”). Respondent was receptive to the idea, and Bassett arranged for the presentation. At the Township’s February 16, 2010, regular meeting, following a BVNA presentation, a motion was made by Bassett and seconded by Respondent to send a withdrawal notice to the CCBCEA indicating the Township’s intention to withdraw in 90 days. The minutes document the motion carried without a specific record of the votes. On or about February 24, 2010, Bassett and Respondent directed the Township Secretary to generate a letter to the CCBCEA indicating the Township’s intention to withdraw from the Agreement in 90 days. The letter documented the Township’s intention to withdraw from the CCBCEA effective June 1, 2010. The letter was dated February 24, 2010, and was signed by Bassett. Frantz responded to the Township’s withdrawal notice with a letter dated March 1, 2010, acknowledging the Township’s withdrawal that, per the Township Ordinance officially recognizing the Agreement, would be effective December 31, 2010. In March 2010 a residential building permit application for a “Change of Use- Electrical” for the Garage was signed by Respondent and submitted to the CCBCEA. The proposed work was listed as “Added electrical box for lighting, tools.” The “Change of Use” building permit application required a plan review, final inspection and the issuance of a Building Occupancy Permit. On or about March 16, 2010, a CCBCEA Building Inspector approved a plan review for Respondent’s “Change of Use” building permit application. The CCBCEA issued Respondent a building permit dated March 16, 2010, for a Change of Use for the Garage as a detached accessory structure-residential use only. The permit authorized construction for 180 days from issuance (March 16, 2010, to September 11, 2010). The permit instructed that the applicant was to contact the CCBCEA for the final inspection of the property. The building permit was signed by Frantz. Respondent did not contact the CCBCEA regarding the final inspection within the allotted time. Frantz ultimately contacted Respondent sometime after September 11, 2010, regarding the final inspection of the Garage. Respondent’s son subsequently arranged the final inspection by the CCBCEA, which was completed on November 2-3, 2010. Meanwhile, at the October 5, 2010, Township regular meeting, the Board reviewed a June 15, 2010, letter from Solicitor Dennis M. McGlynn to Bassett, confirming Frantz’s March 1, 2010, letter relating to the Township’s withdrawal being effective at the end of the year. The letter was followed by a Board discussion about withdrawing from the Agreement. Bassett and Respondent reaffirmed the Township’s intentions to withdraw from the Agreement at the end of the year. The third Supervisor was not in favor of the withdrawal. The Board did not vote on the issue. A letter dated November 3, 2010, from Township Secretary/Treasurer Shirley Custer (“Custer”) to Frantz reaffirmed the Board’s decision to withdraw from the Agreement at the end of the year. The letter referenced the Township’s withdrawal notice of June 2010. Bassett directed Custer to generate the letter. At the December 21, 2010, regular Township meeting, Respondent made a motion, seconded by Bassett, to accept a service agreement with BVNA. The December 21, 2010, minutes note the motion carried without a specific record of the votes. Wherry, 11-012 Page 18 A letter dated December 27, 2010, from the Township notified CCBCEA that the Board approved utilizing the services of BVNA. The letter documented that the CCBCEA was responsible for the follow-up and completion of the applications currently in progress and that no new applications should be taken by the CCBCEA. New applications were to be referred to BVNA. Bassett directed the letter be issued. The Township’s service agreement with BVNA became effective January 1, 2011. The agreement was signed by Bassett on behalf of the Township. After receiving the December 27, 2010, letter from the Township, Frantz contacted Respondent with regard to submitting an affidavit affirming the Garage was not being used for commercial purposes. Respondent never submitted the affidavit as required by the CCBCEA. The CCBCEA did not pursue further action relating to the Garage after returning Respondent’s file to the Township on or about February 17, 2011. The Garage is not marked or advertised as a commercial business. No official/formal business of any kind is documented at the address of the Garage. As for Respondent’s SFIs, on June 15, 2011 an SFI compliance review was conducted for the Township by the Investigative Division of this Commission. The compliance review determined that Respondent had no SFI on file for calendar year 2009. Respondent had an SFI on file for calendar year 2010, dated January 6, 2011. Respondent asserts that he did not believe he was required to file a 2009 calendar year SFI, since he did not hold office until 2010. Respondent failed to complete all information requested on his calendar year 2010 SFI form. Respondent omitted a response to various sections, believing same were not applicable to his financial status. However, Respondent acknowledges that no response equates to a deficient filing and an incomplete form. In 2010 Respondent received compensation from the Township in his position as a Township Supervisor in the total amount of $1,875.00. 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] Wherry’s participation in discussions and actions of the Township Board of Supervisors to terminate a contract with the Cambria County Building Code Enforcement Agency (CCBCEA) at a time when Wherry had an ongoing building/permitting project with CCBCEA, as there is insufficient evidence to establish a use of office constituting a violation; and b. That a violation of Section 1104 (a), 1104(d) and 1105(b) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §§ 1104(a), 1104(d) and 1105(b), Wherry, 11-012 Page 19 occurred in relation to Wherry’s failure to file a Statement of Financial Interests for the 2009 calendar year and when he failed to disclose on a SFI for the 2010 calendar year his occupation or profession, real estate interests, and business interests transferred to immediate family members. 4. Wherry agrees to make payment in the amount of $1,875.00 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. Wherry agrees to file Statements of Financial Interests with Summerhill Township, through the Pennsylvania State Ethics Commission, for calendar year 2009, and an amended Statement of Financial Interests for [the] 2010 calendar year within thirty (30) days of the issuance of the final adjudication in this matter. 6. Wherry agrees to not accept any reimbursement, compensation or other payment from Summerhill Township representing a full or partial reimbursement of the amount paid in settlement of this matter. 7. 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 2. In considering the Consent Agreement, we accept the recommendation of the parties for a finding that no violation of Section 1103(a) of the Ethics Act occurred in relation to Respondent’s participation in discussions and actions of the Board to terminate a contract with the CCBCEA at a time when Respondent had an ongoing building/permitting project with CCBCEA, as there is insufficient evidence to establish a use of office constituting a violation. Although Respondent was involved in discussions and actions of the Board to terminate the Agreement with the CCBCEA at or about the time the CCBCEA was raising issues as to the use of Respondent’s Garage, there is insufficient evidence to establish a use of office by Respondent for a private pecuniary benefit in violation of Section 1103(a) of the Ethics Act. Accordingly, we hold that no violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Respondent’s participation in discussions and actions of the Board to terminate a contract with the CCBCEA at a time when Respondent had an ongoing building/permitting project with CCBCEA, as there is insufficient evidence to establish a use of office constituting a violation. We accept the recommendation of the parties for a finding that a violation of Section 1104(a), 1104(d) and 1105(b) of the Ethics Act occurred in relation to Respondent’s failure Wherry, 11-012 Page 20 to file an SFI for the 2009 calendar year and his failure to disclose on an SFI for the 2010 calendar year his occupation or profession, real estate interests, and business interests transferred to immediate family members. Respondent was required to file an SFI for the 2009 calendar year because he held office as a Township Supervisor in 2010. Respondent’s SFI for calendar year 2010 was deficient because Respondent did not provide all of the required information. We hold that a violation of Section 1104(a), 1104(d) and 1105(b) of the Ethics Act, 65 Pa.C.S. §§ 1104(a), 1104(d) and 1105(b), occurred in relation to Respondent’s failure to file an SFI for the 2009 calendar year and when he failed to disclose on an SFI for the 2010 calendar year his occupation or profession, real estate interests, and business interests transferred to immediate family members. As part of the Consent Agreement, Respondent has agreed to make payment in the amount of $1,875.00 in settlement of this matter 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. Respondent has agreed to not accept any reimbursement, compensation or other payment from the Township representing a full or partial reimbursement of the amount paid in settlement of this matter. Respondent has further agreed to file with the Township, through this Commission, an SFI for calendar year 2009 and an amended SFI for calendar year 2010 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, Respondent is directed to make payment in the amount of $1,875.00 payable to the Commonwealth of Pennsylvania th and forwarded to this Commission by no later than the thirtieth (30) day after the mailing date of this adjudication and Order. Per the Consent Agreement of the parties, Respondent is further directed to not accept any reimbursement, compensation or other payment from the Township representing a full or partial reimbursement of the amount paid in settlement of this matter. To the extent he has not already done so, Respondent is directed to file with the Township, through this Commission, an SFI for calendar year 2009 and an amended SFI th for calendar year 2010, 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 Township Supervisor for Summerhill Township (“Township”), Cambria County, Pennsylvania, from January 2010 to the present, Earl Wherry (“Wherry”) has been a public officialsubject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. 2. Wherry did not violate Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), in relation to his participation in discussions and actions of the Township Board of Supervisors to terminate a contract with the Cambria County Building Code Enforcement Agency (“CCBCEA”) at a time when Wherry had an ongoing Wherry, 11-012 Page 21 building/permitting project with CCBCEA, as there is insufficient evidence to establish a use of office constituting a violation. 3. A violation of Section 1104(a), 1104(d) and 1105(b) of the Ethics Act, 65 Pa.C.S. §§ 1104(a), 1104(d) and 1105(b), occurred in relation to Wherry’s failure to file a Statement of Financial Interests (“SFI”) for the 2009 calendar year and when he failed to disclose on an SFI for the 2010 calendar year his occupation or profession, real estate interests, and business interests transferred to immediate family members. In Re: Earl Wherry, : File Docket: 11-012 Respondent : Date Decided: 4/12/12 : Date Mailed: 5/1/12 ORDER NO. 1601 1. As a Township Supervisor for Summerhill Township (“Township”), Cambria County, Pennsylvania, Earl Wherry (“Wherry”) did not violate Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), in relation to his participation in discussions and actions of the Township Board of Supervisors to terminate a contract with the Cambria County Building Code Enforcement Agency (“CCBCEA”) at a time when Wherry had an ongoing building/permitting project with CCBCEA, as there is insufficient evidence to establish a use of office constituting a violation. 2. A violation of Section 1104(a), 1104(d) and 1105(b) of the Ethics Act, 65 Pa.C.S. §§ 1104(a), 1104(d) and 1105(b), occurred in relation to Wherry’s failure to file a Statement of Financial Interests (“SFI”) for the 2009 calendar year and when he failed to disclose on an SFI for the 2010 calendar year his occupation or profession, real estate interests, and business interests transferred to immediate family members. 3. Per the Consent Agreement of the parties, Wherry is directed to make payment in the amount of $1,875.00 payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission by no later than the th thirtieth (30) day after the mailing date of this Order. 4. Per the Consent Agreement of the parties, Wherry is further directed to not accept any reimbursement, compensation or other payment from the Township representing a full or partial reimbursement of the amount paid in settlement of this matter. 5. To the extent he has not already done so, Wherry is directed to file with the Township, through the Pennsylvania State Ethics Commission, an SFI for calendar year 2009 and an amended SFI for calendar year 2010, by no later than the thirtieth th (30) day after the mailing date of this Order. 6. Compliance with paragraphs 3, 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