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HomeMy WebLinkAbout1026 HallettIn Re: Larry Hallett, Sr. STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: 95- 046 -C2 Date Decided: 11/4/96 Date Mailed: 11/13/96 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Allan M. Kluger Boyd E. Wolff This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation of the Public Official and Employee Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 Lt sea., by the above - 'named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation. Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was filed and a hearing was waived. The record is complete. A consent agreement was submitted by the parties to the Commission for consideration which was subsequently approved. This adjudication of the State Ethics Commission 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 Act 9 of 1989, 65 P.S. §408(h). Any person who violates confidentiality of the Ethics Law is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year, 65 P.S. §409(e). Confidentiality does not preclude discussing this case with an attorney at law. Hallett, 95- 046 -C2 Page 2 I. ALLEGATION: That Larry Hallett, Sr., a public official in his capacity as a Supervisor for Upper Mount Bethel Township, Northampton County, violated the following provision of the State Ethics Law (Act 9 of 1989) when he used the authority of his office to obtain a private pecuniary benefit for himself and /or a business with which he is associated when he participated in discussions and decisions of the Board of Supervisors to review, consider and approve a subdivision plan at which a business with which he was associated performed construction related services. Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.S. §403(a). I1. FINDINGS: 1. Larry Hallett has served as an Upper Mount Bethel Township Supervisor since January 4, 1994. 2. Hallett is the owner of Larry Hallett Contractor, P.O. Box 363, Portland, Pennsylvania. a. Statements of Financial Interests filed by Hallett in 1993, 1994 and 1995 lists his occupation as a self - employed contractor who is 100% owner of Larry Hallett Contractors, P.O. Box 363, Portland, Pennsylvania. 3. Hallett Contractors is a company doing excavating and paving business in the Upper Mount Bethel Township area. 4. In 1988, Larry Hallett, Sr. turned over the operations of his business to his son, Larry Hallett, Jr. a. Hallett, Sr. remains involved with business as a salaried employee and owner. 5. The business annually obtains a Contractors License from the Township. a. Contractors License Applications for 1994 and 1995 lists Larry Hallett, Jr., as the owner of Hallett Contractors. The application is signed by Larry Hallett, Jr. 6. Toni Lynch is a contractor who developed a subdivision plan along with his wife, Lois Lapekas, in Upper Mount Bethel Township. a. The subdivision is known as the Lois Lapekas Subdivision. 7. Lynch is a long -time friend of Hallett and a former employee of Hallett's contracting company. Hallett, 95- 046 -C2 Page 3 8. Upper Mount Bethel Township had given approval to a land development plan in the late 1980's which permitted limited development of the Lois Lapekas Subdivision. 9. Lynch and Hallett informally discussed Lynch's plans for the Lois Lapekas Subdivision over a period of time prior to 1994. 10. In 1994, Lynch asked Hallett to excavate and build a section of road in the development which was allowed under the terms of the Township Permit. 11. Hallett discussed Lynch's request with his son, Larry Hallett, Jr., and his son-in- law, and they decided to build the road for Lynch. 12. Larry Hallett, Jr. Contractors began construction of the road in the summer of 1994. a. Hallett worked on the road doing layout work and operating machinery. 13. On August 17, 1994, the Planning Commission tabled action on Planning Modules for the Lapekas Subdivision for ninety days. 14. On September 21, 1994, Lynch submitted a Subdivision Plan to Upper Mount Bethel Township in order to complete the development. a. The Upper Mount Bethel Planning Commission reviewed the plan and questioned 32 items. b. The Planning Commission tabled action until October 19, 1994. 15. On September 28, 1994, the Lois Lapekas Subdivision came before the Upper Mount Bethel Board of Supervisors. a. Larry Hallett was present and participated in the discussion. b. Toni Lynch's attorney, Brad Miller, advised the Board that he was there for a general discussion of the plan. c. The 32 questions of the Planning Commission were addressed by the Township Engineer who advised that 10% of the problems need to be resolved. (1) The problems included storm water drainage and possible approval from the Soil Conservation Service. d. Miller mentioned waivers that would be requested included waivers for irregularly shaped lots and a cross section of the roadway. (1) The roadway was built by Hallett Contractors. e. The Township Solicitor advised that waivers must be submitted prior to a meeting. Hallett, 95- 046 -C2 Page 4 f. Hallett questioned whether the plan had to be submitted to the Soil Conservation District. Supervisor Jerry Geake made a motion that the Lois Lapekas Subdivision Plan did not have to go to the County Conservation District. (1) The motion was seconded by Hallett, after full discussion by the Solicitor and the Engineer who agreed with the action taken. (2) The motion passed by a vote of 3 to 1. h. Members of the audience questioned Hallett's participation in the vote because he was working on the project. 9. j• Supervisor Geake made a motion to grant Preliminary Conditional Approval to the Lapekas Subdivision Plan. (1) The motion was seconded by Hallett. (2) The motion passed by a vote of 3 to 1. Members of the audience again questioned Hallett's participation in the vote and Board Chairman Nelson stated it was Hallett's prerogative as to whether he should vote or not vote. 16. As a result of resident questions raised regarding Hallett's participation, Township Solicitor David Backenstoe was directed to look into the matter. a. Larry Hallett, Sr. agreed that the Solicitor should review the issue. 17. In a letter dated October 6, 1994 to the Board of Supervisors, Backenstoe advised them of the various statutes and case histories concerning conflicts of interest and informed them they should apply the law to facts as they know them. a. Backenstoe informed the Board of Supervisors that should it be determined that Hallett's vote was invalid then the motion to approve the Preliminary Plan lacked the necessary majority vote, required by the Second Class Township Code, for a motion to be passed. 18. On October 19, 1994, the Township Planning Commission reviewed the Lois Lapekas Subdivision and offered no comments to the Board of Supervisors. 19. On October 26, 1994, the Planning Modules for the Lois Lapekas Subdivision came before the Board of Supervisors for their approval. a. Supervisor Geake made a motion, which was seconded by Nelson, to approve the Lapekas Subdivision Planning Modules. b. The motion was passed by a 3 to 1 vote with Hallett abstaining. 20. The issue of Final Approval for the Lois Lapekas Subdivision also came before the Board of Supervisors at the October 26, 1994 meeting. Hallett, 95- 046 -C2 Page 5 a. Geake made a motion, seconded by Supervisor Nelson, to grant Conditional Final Approval to the Lois Lapekas Subdivision Plan. b. The Board of Supervisors granted Conditional Final Approval by a vote of 3 to 1 with Hallett abstaining. 21. At the October 26, 1994 meeting of the Board of Supervisors, the issue of Hallett having a conflict of interest by voting for approval of the Conditional Preliminary Plan at the September 28, 1994 meeting was discussed. a. Hallett stated he was withdrawing his vote for the Conditional Preliminary Approval. b. The Conditional Preliminary Approval was not reconsidered or voted on again by the Board of Supervisors. 22. During the time period the Lois Lapekas Subdivision Plan was before the Board of Supervisors for the review and approval, Hallett was working on the first section of the roadway through the development. 23. The approval of the Lois Lapekas Subdivision Plan granted by the Board of Supervisors at the September 28, 1994 and October 26, 1994 meetings permitted Lynch to complete the second section of the roadway. 24. Larry Hallett, Jr. Contractors built the second section of the roadway in October and November of 1994. a. Hallett continued to work on the construction of the roadway until it was completed. 25. Larry Hallett, Jr. Contractors billed the Lois Lapekas Subdivision $47,893.00 for building the road. a. . Lynch paid $16,000 of the bill. b. $31,893 is still owed on the bill with a monthly interest charge of 1.5% accruing since February of 1995. 26. Larry Hallett, Sr. was unaware at the time of his votes on September 28, 1994, that his actions could constitute a conflict of interest. a. Hallett then took steps to void his earlier votes and subsequently abstained from voting on other matters regarding the Lois Lapekas Subdivision. III. DISCUSSION: At all times relevant to this matter, the Respondent, Larry Hallett, Sr., hereinafter Hallett, has been a public official subject to the provisions of the Public Official and Employee Ethics Law ( "Ethics Law "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, et seq. Hallett, 95- 046 -C2 Page 6 The issue before us is whether Hallett violated Section 3(a) of the State Ethics Law (Act 9 of 1989) as to the allegation that he used the authority of his office to obtain a private pecuniary benefit for himself and /or a business with which he is associated by participating in discussions and decisions of the Board of Supervisors to review, consider and approve a subdivision plan at which a business with which he was associated performed construction related services. Pursuant to Section 3(a) of the Ethics Law quoted above, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. facts. The term "conflict of interest" is defined under Act 9 of 1989 as follows: 65 P.S. §402. Section 2. 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. "Conflict" or "conflict of interest" 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 or his immediate family or a business with which he or a member of his immediate family is associated. Having noted the issues and applicable law, we shall now summarize the salient Since January, 1994, Hallett is a Supervisor in Upper Mount Bethel Township and in a private capacity is the owner of Larry Hallett Contractors. Hallett Contractors is a company that does excavation and paving work in Upper Mount Bethel Township. Although Hallett turned the operation of the business over to his son in 1988, he continues as a salaried employee and owner of the business. In the late 1980's, the Township gave approval to a land development plan known as the Lois Lapekas Subdivision (Plan) which was proposed by Tony Lynch, a contractor, and his wife, Lois Lapekas. Lynch is both a friend of Hallett and a former employee of Hallett Contractors. After Lynch and Hallett had informal discussions about the Plan in 1994, Lynch requested Hallett to excavate and build a section of the road in the development. Hallett Contractors began construction of the road in the summer of 1994 and Hallett himself worked on the road doing layout work and operating machinery. As to the Plan approval process, the planning modules were tabled for 90 days by the Township Planning Commission on August 17, 1994. The Plan was submitted on September 21, 1994 and the Planning Commission made a review and questioned Hallett, 95- 046 -C2 Page 7 32 items. Action was tabled by the Planning Commission a second time until October 19, 1994. When the Plan was submitted to the Township Board on September 28, 1994, Hallett participated in the discussion. One of the issues before the Board was whether the Plan had to be submitted to the Soil Conservation District. The Board decided in a 3 -1 vote that the Plan did not have to go to the County Conservation District. At that time, members of the audience questioned Hallett's participation and voting because he was working on the project. As to the motion to grant preliminary conditional approval to the Plan, Hallett seconded the motion which passed by a 3 -1 vote. At an October 26, 1994 meeting of the Board of Supervisors, the planning modules for the Plan were reviewed and approved on a 3 -1 vote with Hallett abstaining. The final approval for the Plan was also considered by the Board which granted approval on a 3 -1 vote with Hallett once again abstaining. At that meeting, Hallett stated he was withdrawing his vote on September 28, 1994 as to the conditional preliminary approval. While the Plan was pending before the Township Board, Hallett was working on the first section of the roadway through the development. Further, the Board approval allowed the developer to complete the second section of roadway which was built by Hallett Contractors. Hallett was unaware that he had a conflict when he took action on September 28, 1994. Thereafter, Hallett abstained on matters involving the Plan and took steps to try to void his earlier votes. Having summarized the above relevant facts, we must now determine whether the actions of Hallett violated Section 3(a) of Act 9 of 1989. In order to establish a violation, Section 3(a) requires a use of the authority of office or confidential information by a public official /employee for the private pecuniary benefit of himself, a member of his immediate family, or business with which he or a member of his immediate family is associated. In this case we find that Hallett violated Section 3(a) of Act 9 of 1989. There was a use of authority of office on the part of Hallett when he participated and voted at the September 28, 1994 meeting of the Township Board. Juliante, Order 809. The use of authority of office resulted in a private pecuniary benefit consisting of the services which Hallett Construction performed at the subdivision as to excavation and roadwork. Lastly, the private pecuniary benefit enured to the benefit of Hallett Contractors which is a business with which Hallett is associated. The term "business with which he is associated" is defined under the Ethics Law as follows: Section 2. Definitions "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. Hallett, 95- 046 -C2 Page 8 65 P.S. §402. Since Hallett is an owner and employee of Hallett Contractors, it is a business with which he is associated. Our finding of a violation by Hallett under the facts conforms to our prior precedent. Lavertue, Order 1002; Ransdorf, Order 997; Joines, Order 978. Section 7(13) of Act 9 of 1989, 65 P.S. §407(13), specifically empowers this Commission to impose restitution in those instances where a public official /employee has obtained a financial gain in violation of the Ethics Law. In this case, the parties through a Consent Agreement have determined that Hallett make a payment of $200. Hallett is directed to make payment within 30 days of the date of issuance of this Order through this Commission to Upper Mount Bethel Township. Compliance with the foregoing will result in the closing of this case with no further action. Non- compliance will result in the initiation of an order enforcement action. Lastly, we note that the parties have filed a Consent Agreement and Stipulation of Findings which set forth a proposed resolution of the allegations. We believe that the Consent Agreement is the proper disposition for this case based upon our review as reflected in the above analysis and the totality of the facts and circumstances. IV. CONCLUSIONS OF LAW: 1. Hallett, as a Supervisor for Upper Mount Bethel Township, Northampton County, is a public official subject to the provisions of Act 9 of 1989. 2. Hallett violated Section 3(a) of Act 9 of 1989 when he used the authority of office to obtain a private pecuniary benefit for Hallett Contractors, a business with which he is associated. In Re: Larry Hallett, Sr. ORDER NO. 1026 File Docket: 95- 046 -C2 Date Decided: 11/4/96 Date Mailed: 11/13/96 1. Hallett, as a Supervisor for Upper Mount Bethel Township, Northampton County, violated Section 3(a) of Act 9 of 1989 when he used the authority of office to obtain a private pecuniary benefit for Hallett Contractors, a business with which he is associated. 2. Hallett is directed to make payment of $200 within 30 days of the date of issuance of this Order through this Commission to Upper Mount Bethel Township pursuant to a Consent Agreement of the parties. Compliance with the foregoing will result in the closing of this case with no further action. Non- compliance will result in the initiation of an order enforcement action. BY THE COMMISSION, ognis4u6 eft. DANEEN E. REESE, CHAIR