Loading...
HomeMy WebLinkAbout1126 ForstIn Re: William E. Forst STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: X -ref: Date Decided: Date Mailed: Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Julius Uehlein Louis W. Fryman John J. Bolger Frank M. Brown Susan Mosites Bicket 98- 023 -C2 Order No.1126 6/1/99 6/10/99 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 g ma., by the above - named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). 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. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11, Act 93 of 1998, which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under Act 93 of 1998. This adjudication of the State Ethics Commission is issued under Act 93 of 1998 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 Chapter 11 of Act 93 of 1998. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year. Confidentiality does not preclude discussing this case with an attorney at law. Forst, 98- 023 -C2 Page 2 I. ALLEGATION: That William E. Forst, Hatfield Township, Montgomery County, Commissioner, violated Section 3(a) of the State Ethics Act when he participated in actions of the Board of Commissioners, including but not limited to casting the deciding vote to grant a waiver of the township land development ordinance to Oak Grove Park and Sales, a company he owns; and when he filed a deficient Statement of Financial Interests for calendar year 1997 by failing to report information on Sections 10, 11, 14 and 16 of the form dated 02/12/98; and when he failed to report his interest in Oak Grove Park Associates on the Statement of Financial Interests dated 02/12/98. 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). 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 of his immediate family or a business with which he or a member of his immediate family is associated. 65 P.S. §402. Section 5. Statement of financial interests (b) The statement shall include the following information for the prior calendar year with regard to the person required to file the statement. (4) The name and address of each creditor to whom is owed in excess of $5,000 and the interest rate thereon. However, loans or credit extended between members of the immediate family and mortgages securing real property which is the principal or secondary residence of the person filing shall not be included. (5) The name and address of any direct or indirect source of income totaling in the aggregate $1,000 or more. However, this provision shall not be construed to require the divulgence of confidential information protected by statute or existing professional codes of ethics or common law privileges. Forst, 98- 023 -C2 Page 3 (8) Any office, directorship, or employment of any nature whatsoever in any business entity. (9) Any financial interest in any legal entity engaged in business for profit. (10) The identity of any financial interest in a business with which the reporting person is or has been associated in the preceding calendar year which has been transferred to a member of the reporting person's immediate family. 65 P.S. §405(b). II. FINDINGS: 1. William E. Forst served as a Hatfield Township, Montgomery County, Commissioner from 1967 to 1979, and from 1986 up until the present. a. Forst served as Vice - President of the Board in 1997. 2. Hatfield Township is a first class township and is governed by a five member Board of Commissioners. 3. Forst is the sole shareholder and owner of Oak Grove Park & Sales. a. Oak Grove Park & Sales is engaged in the business of mobile home sales and the maintenance of a trailer park. 4. Oak Grove Park & Sales, Inc., 2985 North Main Street, Hatfield, PA, was incorporated on March 28, 1974, with Pennsylvania Corporation Bureau. a. William E. Forst is identified in Corporation Bureau filings as the Chief Executive Officer, incorporator, and sole stock holder of Oak Grove Park & Sales, Inc. 5. In February of 1997, the Hatfield Township Board of Commissioners discussed the possibility of purchasing 31 acres of land located in Hatfield Township, and known as the Scholl property. a. The township commissioners researched the possibility of obtaining funding from the Montgomery County Open Space Program. 6. The Board of Commissioners decided not to purchase the Scholl property. 7. In May of 1997, Forst signed an agreement of sale to purchase the Scholl property. 8. In June 1997 Forst hired the engineering firm of Schlosser & Clauss Consultant Engineers, Inc., to prepare a land development plan for a section of the Scholl property. 9. The land development plan, dated July 4, 1997, showed a gravel road running from a parcel of land previously owned by Forst, across a section of the Scholl property to a gravel storage area approximately 100 x 150 feet in size. Forst, 98- 023 -C2 Page 4 10. The parking lot and erosion control plan for the Scholl property as submitted by Forst was reviewed by Jeffrey Wert, Hatfield Township Engineer. a. Wert provided comments to the Board of Commissioners in a letter dated July 15, 1997. b. The comments focused on elevations, soil type, storm water runoff calculations, drainage easements, landscaping and permits that may be required. 11. At the August 13, 1997, commissioner's meeting, members of the Hatfield little league inquired as to whether the township purchased a portion of the Scholl farm for use as little league fields, and as storage for township equipment and materials. a. The Board discussed whether the purchase of land from Forst would constitute a conflict of interest for Forst. b. The Board agreed to seek a legal opinion on the issue from an independent legal counselor and reconsider the matter at a later date. 12. Township Solicitor Ronald Robinson could not render an opinion in the matter as he was Forst's private attorney, representing him on Oak Grove Park & Sales matters. 13. The Commissioners retained attorney Robert Brandt, Jr., to research the matter and issue an opinion. 14. On October 23, 1997, attorney Robert Brandt, in a letter to the Board of Commissioners Chairperson Jean Vandegrift, informed the board that he researched the issue as to whether the Board of Commissioners could purchase property owned by one of the members of the Board of Commissioners, William Forst, and whether the transaction would constitute a prohibited conflict of interest. Brandt's opinion provided, in part, the following: "Accordingly, the prudent course has been followed in this matter and Commissioner Forst has properly recused himself from any discussions or votes concerning the township's purchase of the property. To be more formal, there should be a public announcement that the commissioner will abstain from the vote due to the possibility of a potential conflict of interest, and the. township secretary in accordance with the act should receive a written memorandum to that effect. The written memorandum can be simple and should contain narrative as to the position of the commissioner. However, as the statute indicates, in the event there is a tie vote on the issue, Commissioner Forst would be permitted to vote to break the tie, in accordance with the statute. The remaining commissioners are certainly under no obligation to purchase the property and may decline to do so for a number of reasons, including economics, or in their opinion, that the transaction, even though it does not constitute a prohibited conflict of interest, may appear to be a conflict of interest." 15. Brandt's opinion only referred to the specific issue of the township's purchase of part of the Scholl property from Forst and whether Forst could participate in that action. Forst, 98- 023 -C2 Page 5 16. On September 10, 1997, prior to the receipt of Robert Brandt's legal opinion, the Township Board of Commissioners, with Forst absent, reviewed the Oak Grove & Park Sales Land Development Plan. a. Commissioner Thomas inquired into the requirements of the Land Development Ordinance relating to curbing and paving requirements in light industrial zoned areas of the township. Discussion ensued. b. Inquiries were also made regarding operation of a commercial business in a light industrial area and access to the proposed storage area. 17. The Board voted unanimously on September 10, 1997, upon motion of Thomas, seconded by Lewis to approve the Oak Grove Park & Sales, Inc., Parking and Area and Erosion Plan subject to the following conditions: a. Two informational requirements were waived. b. Curb within the parking area is waived due to the need to preserve sheet flow from the parking area and to avoid collection and concentration of runoff to a single point. S.O. Section 504. c. Storm water runoff calculations indicate an increase in Storm water runoff of 0.1 cfs based on stone as shown. The storm water management report should be modified to reflect the paving requirement. d. Drainage easements shall be required along natural watercourses to a minimum width of twenty (20) feet. A note should be added to the plan. (S.O. Section 507.1(E)). e. Landscaping in accordance with Section 512 should be addressed. In lieu of a formal landscape plan,.the Board of Commissioners accepted the row of pines as shown, ten (10) feet off center. f. The parking area is required to be paved in accordance with Section 514 of the subdivision and Land Development Ordinance. g. Permits and /or approvals that may be required. 18. Forst was formally notified by Mertz Engineering, on September 19, 1997, of the Board of Commissioners' decision. 19. On October 1, 1997, the Planning & Zoning Committee of the Board of Commissioners reviewed Forst's request of a waiver of the paving requirement of the storage lot. a. Forst was a member of the Planning and Zoning Committee at that time. b. Forst requested reconsideration of the requirement concerning paving of the storage lot. c. Forst provided a list of other projects which had previously not been required to provide paved storage areas. d. The matter was referred to the regular public meeting of the board. Forst, 98- 023 -C2 Page 6 20. On October 8, 1997, at the Board of Commissioners' meeting, the board reviewed Forst's request for a waiver of the paving requirement. a. Forst requested a waiver of the paving requirement and provided a list of previously granted waivers. b. Commissioner Norman inquired as to whether the opinion from special counsel regarding the Oak Grove Park matter had been received. 1. Manager Seitzinger reported it had not been received. c. Motion was made by Lewis, seconded by Vandegrift to grant the waiver. d. Motion failed by a 2 to 2 vote with Forst abstaining. 21. Following the vote on October 8, 1997, President of the Board Vandegrift reported that the board may revisit the issue of the waiver upon receipt of the legal opinion from outside counsel. 22. During the November 24, 1997, board meeting, Commissioner Lewis advised [that] the legal opinion concerning the proposed sale of land by a Commissioner to the township was completed. • a. The board agreed that Thomas should contact Attorney Brandt to discuss the matter. 23. Attorney Brandt informed Thomas that the opinion applied only to Forst's participation in the purchase of the land from him, by the township, and did not apply to Forst's participation in the Land Development Plan vote. a. The request of Brandt by the township did not include an opinion as to Forst's participation in the exception to the ordinance. 24. By letter dated December 9, 1997, to Township Manager Stanley Seitzinger, Forst informed the Board of Commissioners and the public of his potential conflict of interest in matters pertaining to Oak Grove Park & Sales and the lands on which Oak Grove Park & Sales operate. 25. The Hatfield Board of Commissioners met on December 10, 1997, with Commissioners Forst, Vandegrift, Thomas, Norman and Lewis present. a. Forst's waiver request on the paving requirements for the Scholl property was on the agenda. b. Forst requested that the Board .of Commissioners reconsider providing a waiver on the paving requirement for the driveway and storage parking area lot located on the Scholl property portion of the Oak Grove Trailer Park. c. Forst's letter of December 9, 1997, was read by Board President Vandegrift. d. Commissioner Lewis then made a motion to authorize waiving the paving requirements for the driveway and storage lot on the Forst property. The motion was seconded by Commissioner Vandegrift. Forst, 98- 023 -C2 Page 7 e. A discussion ensued in regard to whether a waiver of paving requirements had been allowed on other projects in Hatfield Township. Commissioner Thomas asked the Solicitor whether the matter could be reopened for additional discussion and an additional vote in 1998. Solicitor Robinson indicated that the matter would have to be answered by the appointed special counsel as Mr. Robinson indicated that he had a conflict of interest on the matter since he represented Commissioner Forst. f. Commissioners Lewis and Vandegrift voted yes on the motion to authorize the waiver. Commissioners Thomas and Norman voted no on the motion. Forst then cast the deciding vote to approve the motion authorizing the waiving of the paving requirement for the driveway and storage lot on his property. 26. It would have cost Forst approximately $5,000 if he would have paved the area using his equipment, manpower and materials, with costs being even higher if Forst had to hire an outside contractor to complete the paving work. g. 27. Forst filed a Statement of Financial Interests for 1997 calendar year on February 12, 1998. 28. There was no response to the following items on Forst's Statement of Financial Interests dated February 12, 1998, on file with Hatfield Township. a. No. 10 - Creditors b. No. 11 - Direct or indirect sources of income c. No. 14 - Other, directorship or employment in any business d. No. 16 - Business interests transferred to immediate family member. 29. Forst's actions of casting the deciding vote granting him a waiver on the paving requirements for the driveway and storage lot on his property resulted in a private pecuniary benefit to himself and /or a business with which he is associated. a. Forst benefitted as a result of not being required to pave the 100' x 150' storage and the driveway. III. DISCUSSION: At all .times relevant to this matter, the Respondent, William E. Forst, hereinafter Forst, has been a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, et seq. /Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101, aeg. The issue is whether Forst violated Section 1103(a) of the Ethics Act as to the allegation that he participated in actions of the township board to grant a waiver of the township land development ordinance to a business with which he is associated and when he filed a deficient Statement of Financial Interests (SFI) for the calendar year 1997. Forst, 98- 023 -C2 Page 8 Section 1103(a) of the Ethics Act quoted above 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 1 105(b) of the Ethics Act quoted above requires that the person who is required to file an SFI must disclose the financial information required to be listed in all categories. Having noted the issues and applicable law, we shall now summarize the relevant facts. Forst has served as a Hatfield Township Commissioner from 1967 to 1979 and since 1986. In a private capacity, Forst is the sole shareholder and owner of Oak Grove Park & Sales, Inc. The Hatfield Township Board in 1997 considered but decided against purchasing a tract of land comprised of thirty one acres. Shortly thereafter, Forst purchased that property and then hired an engineering firm to prepare a land development plan for part of the property. After the plan was completed and submitted to the Township Engineer, comments were provided to the Board. At the August, 1997 Township Board meeting, a discussion occurred about the township purchasing part of Forst's newly acquired property for use as a little league field and also as a storage area for township equipment and materials. An issue arose as to whether Forst would have a conflict, given his ownership of the land. Because Forst was a private law client of Ronald Robinson, the Township Solicitor, Robinson would not render an opinion to the Board on the issue of Forst selling property to the township. The Board retained the services of Attorney Robert Brandt who opined that Forst should abstain and make certain disclosures; that Forst should only vote in the event that there was a tie vote of the Board; and that the remaining Commissioners would not have to purchase the property. At a September Township Board Meeting, with Forst absent, the Oak Grove Park & Sales, Inc. Land Development Plan was approved, subject to certain enumerated conditions. Subsequently, Forst submitted a request for a waiver of the paving requirement to the Planning and Zoning Committee of the Township Board in October, 1997 which did not grant the waiver based upon a 2 to 2 vote with Forst abstaining. Attorney Brandt was contacted again about Forst. Brandt advised that his prior opinion only dealt with the purchase of land from Forst and not Forst's participation in the Land Development Plan. Forst by letter dated December 9, 1997 to the township manager advised that he (Forst) had a conflict as to matters involving Oak Grove Park & Sales, Inc. The Township Board met in December, 1997 to consider Forst's waiver request. After a vote was taken which resulted in a .2 to 2 vote, Forst cast the deciding vote to waive the ordinance paving requirement as to his property. If Forst had to pave the area of land for which he got a waiver, the cost using his own manpower, equipment and supplies would have been approximately $5000, with the cost being even higher if an independent contractor were hired. Forst, 98- 023 -C2 Page 9 Aside from the above, when Forst filed his SFI for the 1997 calendar year, he failed to complete items 10, 11, 14, and 16. Having summarized the above relevant facts, we must now determine whether the actions of Forst violated Section 1 103(a) of the Ethics Act. In applying Section 1103(a) of the Ethics Act to the instant matter, there was a use of authority of office on the part of Forst. But for the fact that Forst was a Commissioner, he could not have cast the deciding vote to waive the township ordinance paving requirement as to his property. Such action constituted a use of authority of office. Juliante, Order 809. The use of authority of office resulted in a private pecuniary benefit consisting of the out -of- pocket expenses that Forst saved by not having to pave a portion of his property. Lastly, the private pecuniary benefit inured to Forst himself and the business with _which he is associated.. Forst violated Section 1103(a) of the Ethics Act when he used the authority of office for a private pecuniary benefit to himself and the business with which he is associated by casting the deciding vote to grant a waiver of the township and development ordinance to Oak Grove Park & Sales, Inc. The parties have submitted a Consent Agreement together with a Stipulation of Findings wherein it is proposed to resolve the case by finding a violation of Section 1103(a), a payment of $3500 by Forst through this Commission to Hatfield Township and the filling of an amended SFI correcting the deficiencies in the items noted above. Accordingly, Forst is directed to make payment of $3500 in a timely manner through this Commission to Hatfield Township. Forst is directed within thirty days of the date of mailing of this order to file an amended Statement of Financial Interests for the 1997 calendar year correcting the deficiencies. Compliance with the foregoing will result in the closing of this case with no further action. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Forst, as a Township Commissioner in Hatfield Township, is a public official subject to the provisions of Act 9 of 1989/Act 93 of 1998, Chapter 11. 2. Forst violated Section 1103(a) of the Ethics Act when he participated in actions of the Hatfield Board and cast the deciding vote to grant a waiver of the township land development ordinance to Oak Grove Park & Sales, Inc., a business with which he is associated. In Re: William E. Forst File Docket: 98- 023 -C2 Date Decided: 6/1/99 Date Mailed: 6/10/99 ORDER NO. 1126 1. Forst, as a Township Commissioner in Hatfield Township, violated Section 1103(a) of the Ethics Act when he participated in actions of the Hatfield Board and cast the deciding vote to grant a waiver of the township land development ordinance to Oak Grove Park & Sales, Inc., a business with which he is associated. 2. As per the consent agreement of the parties, Forst is directed to make payment of $3,500 in a timely manner through this Commission to Hatfield Township. 3. Forst is directed within thirty days of the date of mailing of this order to file an amended Statement of Financial Interests for the 1997 calendar year correcting the deficiencies in the form filed for that year. 4. Compliance with paragraphs 2 and 3 will result in the closing of this case with no further action by the Commission; non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, A ptisAu6 teuit_d DANEEN E. REESE, CHAIR