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HomeMy WebLinkAbout988 DeedsSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In Re: Robert L. Deeds, Sr. File Docket: 94- 040 -C2 Date Decided: 11/21/95 Date Mailed: 11/28/95 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Allan M. Kluger John R. Showers Rev. Joseph G. Quinn Boyd E. Wolff The Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation of the State Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 et sea. Written notice of the specific allegation(s) was served at the commencement of the investigation. A Findings Report was issued and served upon completion of the investigation which constituted the Complaint by the Investigation Division. An Answer was not timely filed and a hearing was deemed waived. The record is complete. This adjudication of the Commission is hereby issued which sets forth the individual Allegations, Findings of Fact, Discussion, Conclusions of Law and Order. This adjudication is final and will be made available as a public document thirty days after issuance. However, reconsideration may be requested which will defer public release of this adjudication pending action on the request by the Commission. A request for reconsideration does not affect the finality of this adjudication. A reconsideration request must be received at this Commission within thirty days of issuance 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). 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. Deeds, 94- 040 -C2 Page 2 I. ALLEGATION: That Robert L. Deeds, Sr., a public official in his capacity as a Supervisor for Robeson Township, Berks County, violated the following provisions of the State Ethics Act (Act 9 of 1989) when he used the authority of his office for the private pecuniary benefit of his son by participating in discussions and /or decisions of the board of supervisors regarding a driveway permit for a home constructed by his son, and when as roadmaster he did not enforce the driveway ordinance regarding a driveway constructed by his son which did not meet the township specifications. II. FINDINGS: 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. 1. On August 1, 1994, the Investigative Division of the State Ethics Commission received a signed, sworn complaint alleging that Robert Deeds, Sr., violated provisions of the State Ethics Act (Act 9 of 1989). Deeds, 94- 040 -C2 Page 3 2. Upon review of the complaint by the Director of Investigations a recommendation was made to the Executive Director to commence a preliminary inquiry. 3. At the direction of the Executive Director, the Investigative Division initiated a preliminary inquiry on August 8, 1994. 4. The preliminary inquiry was completed within sixty days. 5. On October 5, 1994, a letter was forwarded to Robert L. Deeds, Sr., by the Executive Director of the State Ethics Commission informing him that a complaint against him was received by the Investigative Division and that a full investigation was being commenced. a. Said letter was forwarded by certified mail, No. P 016 239 426. b. The domestic return receipt bears the signature of Joan Deeds, with a delivery date of October 6, 1994. 6. The full investigation was commenced at the direction of the Executive Director of the State Ethics Commission. 7. On January 27, 1995, the Executive Director of the State Ethics Commission filed an application for a ninety -day extension of time to complete the Investigation. 8. The Commission issued an order on February 23, 1995, granting the ninety -day extension. 9. On April 19, 1995, the Executive Director of the State Ethics Commission filed an application for an additional ninety -day extension of time to complete the investigation. 10. The Commission issued an Order on May 8, 1995, granting the ninety -day extension. 11. The Investigative Complaint was mailed to the Respondent on September 29, 1995. 12. Robert L. Deeds has served as Robeson Township, Berks County, Supervisor from January 6, 1992, to the present. 13. At the Robeson Township Supervisors Reorganization Meeting held on January 6, 1992, Deeds was appointed Township Roadmaster for the year 1992. 14. At the February 18, 1992, meeting of the Board of Supervisors approval was given for Deeds to include driveway inspections as part of the Roadmaster's duties. Deeds, 94- 040 -C2 Page 4 a. It was a consensus among the members of the board that since the road department dealt with driveway issues affecting township roads that the Roadmaster should conduct the inspections. b. Deeds agreed to have Township Engineer Gary Kraft perform driveway inspections on properties in which he had a financial interest. 15. The township roadmasters' inspection of driveways was to ensure compliance with Section 470, Driveways, of the Second Class Township Code which provides in part: E. Driveways shall not intersect any street within fifty (50) feet of a street intersection, as measured along the curb line from the endpoint of the nearest curb radius. K. If any portion of a driveway has a slope in excess of ten (10) percent, that driveway shall be paved for its entire length. L. Driveways sloped in excess of twelve (12) percent shall not be permitted. M. All driveways shall be located, designed, and constructed to prevent runoff into and sedimentation of public roads. Any drainage facilities (including, but not limited to swales, ditches, and culverts) to be constructed more or less parallel to the street in order to achieve this, shall be located outside of the street right of way line. 16. In 1991, prior to becoming a Robeson Township Supervisor, Robert L. Deeds and his wife, Joan M. Deeds, submitted Preliminary Plans to the Robeson Township Board of Supervisors for the Willow Springs Phase I Subdivision. a. Willow Springs subdivision is a development consisting of single family homes. b. The Board of Supervisors approved the Preliminary Plans. 17. On April 21, 1992, the Board of Supervisors approved the Revised Final Plan for the Willow Springs Subdivision Phase I. a. Supervisor Deeds abstained from the vote due to his financial interest in the development. 18. In March of 1992, Charles M. Glass and Tristine J. Glass entered into an agreement of sale with Robert L. Deeds and Joan M. Deeds for the purchase of 2.194 acres of land in the Willow Springs Subdivision for $50,000.00. Deeds, 94- 040 -C2 Page 5 a. The land was described as Lot #46 on the subdivision plans. b. The sale of the land was contingent upon the Glasses hiring Robert Deeds, Jr., to build a house on the property. 19. Charles and Tristine Glass hired Robert Deeds, Jr., to build the house for $117,000.00. 20. The Glasses presented Robert Deeds, Jr., with a plan of the house they wanted on the property. a. The plan the Glasses presented to Robert Deeds, Jr., showed a garage on the north side of the house. 21. On April 1, 1992, Robert Deeds, Jr., submitted an application for a Building Permit and a Road Occupancy Permit to Robeson Township for Lot #46. a. The Application for a Road Occupancy Permit requested permission to install a driveway. b. The Application for a Building Permit sought approval to construct a house on Lot #46. c. A sketch submitted with the Application for a Building Permit indicated a garage and driveway would be located on the south side of the house. d. A separate driveway permit was not signed. 22. Robert Deeds, Jr., informed the Glasses that the garage and driveway should be located on the south side of the house. 23. The house was constructed during April, May and June of 1992. a. On June 19, 1992, the Glasses made settlement on the property paying separate checks to Robert L. Deeds and Joan M. Deeds for the land and Robert Deeds, Jr., for the house. 24. On June 17, 1992, Robert Woolworth, electrical inspector, approved the electrical work in the house for the Township. 25. On June 18, Township Building Inspector and Code Enforcement Officer James Hauptly approved the Plumbing and Building that were constructed. 26. The driveway was not inspected or approved by a Township Official. Deeds, 94- 040 -C2 Page 6 a. Neither Robert Deeds, Sr., as township roadmaster, nor the township engineer inspected or approved the driveway. 27. The driveway constructed by Robert Deeds, Jr., intersected with Zion Road within 50 feet of an intersection. a. The unpaved driveway was sloped in excess of twelve (12) percent. 28. Shortly after moving into the residence the Glasses experienced problems with the driveway deteriorating. 29. The Glasses were unable to reach an agreement with Robert Deeds, Jr., in reference to corrections to the driveway problem. 30. The Glasses, along with their attorney, Timothy appeared before the Township Board of Supervisors February 16, 1993, Regular Meeting. a. Attorney Bitler complained that the Township inspect the driveway or enforce the Township reference to driveway construction. b. Township Solicitor John Hoffert responded to the complaint stating that the Township did not enforce the Code in reference to driveway inspections in the past and if the Township enforced the Code at that time it would be enforced against the Glasses. 31. At the February 16, 1993, meeting the Board of Supervisors along with Solicitor Hoffert then met in Executive Session to discuss the matter. a. During the Executive Session Supervisor Deeds informed the other Supervisors the Glasses had requested that the driveway be placed on the south side of the property; that his son offered to correct the problem by cutting swales in the driveway; and that the Glasses were only interested in being able to resell the property at a profit. 32. Following the Executive Session, the board recommended and the Supervisors then unanimously agreed with Solicitor's Hoffert's opinion that the Glasses should be informed that it was their responsibility to bring the driveway into compliance with the Township Code. a. There was no formal vote taken on the matter. Bitler, at the did not Code in b. Deeds was present and participated in the discussion. Deeds, 94- 040 -C2 Page 7 33. The Supervisors and Solicitor Hoffert returned to the Public Meeting where Solicitor Hoffert informed the Glasses that he would notify them by letter that their property was not in compliance and asking their cooperation in bringing it into compliance with the Code. a. Solicitor Hoffert also stated the Township Code in reference to driveways would be enforced from then on. 34. Solicitor Hoffert informed the Glasses, by letter dated March 1, 1993, that their lot was in violation of Sections 470.E, 470.H, 470.K, 470.J, 470.L, and 470.M of the Subdivision and Land Development Ordinances and appeared to be in violation of Section 613.3 of the Zoning Regulations. a. Hoffert suggested that the Glasses review the letter with Attorney Bitler and arrange to bring the lot and the improvements thereon into compliance with both the Subdivision and Land Development Ordinances and the Zoning Ordinance of the Township. 35. The Glasses sued Robert Deeds, Jr. over the matter and an out of court settlement was reached where Robert Deeds, Jr. agreed to pay the Glasses $4,500.00 for the cost of excavating the lot for a new driveway. III. DISCUSSION: As a Supervisor in Robeson Township, Berks County, Robert L. Deeds, Sr., hereinafter Deeds, is a public official as that term is defined under Act 9 of 1989. 65 P.S. §402. As such, his conduct is subject to the provisions of the Ethics Law and the restrictions therein are applicable to him. Initially, it is noted that Section 9 of Act 9 of June 26, 1989 provides, in part, as follows: This amendatory act shall not apply to violations committed prior to the effective date of this act, and causes of action initiated for such violations shall be governed by the prior law, which is continued in effect for that purpose as if this act were not in force. For the purposes of this section, a violation was committed prior to the effective date of this act if any elements of the violation occurred prior thereto. Since the occurrences in this case transpired after the effective date of Act 9 (June 26, 1989), we must apply the provisions of Act 9 to determine whether the Ethics Act was violated. Deeds, 94- 040 -C2 Page 8 Preliminarily, we note that Deeds filed an Answer in this case which was received three days after the filing deadline. Deeds has supplied no justification for the late filing. Accordingly, as per our Regulations, the untimely filing results in the waiver of a hearing and the deemed admission of the findings in the Investigative Complaint. 51 Pa. Code 21.5(k)(1), 21.21(a). Under Section 3(a) of Act 9 of 1989 quoted above, a public official /employee shall not engage in conduct that constitutes a conflict of interest as defined above. The two issues before us are whether Deeds violated Section 3(a) of the Ethics Law, the conflict provision, when he allegedly used the authority of office for the private pecuniary benefit of his son by participating in discussions /decisions of the Board of Supervisors regarding a driveway permit for a home'constructed by his son and second, when he as Roadmaster allegedly did not enforce the driveway ordinance regarding a driveway constructed by his son which did not meet township specifications. Deeds has served as a Supervisor in Robeson Township since January 1992 when he also was appointed Roadmaster for that year. At the February 1992 Board meeting, Deeds was authorized to include driveway inspections as part of his Roadmaster duties. Whenever Deeds would have a conflict as to properties in which he had a financial interest, the Township Engineer was to perform driveway inspections. Driveway inspections by the Roadmaster were for the purpose of insuring compliance with Section 470 of the Second Class Township Code (Code) which provided in part that driveways should not intersect any street within fifty feet of the intersection, that driveways with slopes in excess of ten (10) percent had to be paved, that driveways sloped in excess of twelve (12) percent were prohibited and that all driveways should be located, designed and constructed to prevent run -off and sedimentation of public roads. Before Deeds became a supervisor, he and his wife submitted a preliminary plan to the Township Board for Willow Springs Phase I Subdivision. The preliminary plan was approved by the Board of Supervisors before Deeds became a Supervisor. On April 21, 1992, with Deeds on the Board, the final revised plan for Willow Springs was approved with Deeds abstaining. In March 1992, Charles and Tristine Glass entered into an Agreement of Sale with Deeds and his wife for the purchase of a parcel of land in the Willow Springs Subdivision for $50,000.00. The sale of the land contained a requirement that the Glasses hire Deeds' son, Robert Deeds, Jr. (Deeds, Jr.) to build a house on the property. The Glasses presented a house plan to Deeds, Jr. which showed a garage on the north side of the house. Deeds, Jr. agreed to build the house for $117,000.00. Deeds, Jr. informed the D 94- 040 -C2 Page 9 Glasses that the garage and driveway should be located on the south side of the house. On April 1, 1992 when Deeds, Jr. submitted an application to the Township for building permit and road occupancy permit, the sketch showed a garage and driveway located on the south side of the house. The separate driveway permit was not signed. After construction of the house was completed, the Glasses made settlement on the property on June 19, 1992 by paying Deeds, Jr. for the house construction and Deeds and his wife for the land. The electrical inspector approved the house for electrical work on June 17, 1992, and the Township Building Inspector and Code Enforcement Officer approved the plumbing and building on June 18, 1992. However, the driveway was not inspected nor approved by a Township official. The unpaved driveway constructed by Deeds, Jr. intersected a road within fifty feet of an intersection and had a slope in excess of twelve (12) percent. Thus, the driveway was out of compliance in two respects with the Code. Shortly after the Glasses moved into the residence, they experienced problems with the deterioration of their driveway. The Glasses attempted but were unable to reach an agreement with Deeds, Jr. to correct the driveway problem. Thereafter, on February 16, 1993, the Glasses and their attorney appeared at the Township Board of Supervisors and complained that the Township did not inspect their driveway nor enforce the Code in reference to the driveway construction. The Township Solicitor responded that the Township did not enforce the Code as to driveway inspections in the past and if the Township would now enforce the Code, it would be against the Glasses. The Supervisors then went into executive session at that meeting wherein Deeds informed the other Supervisors that the Glasses had requested a driveway on the south side of their property, that his son offered to correct the problems by cutting swales in the driveway and that the Glasses were only interested in being able to resell the property at a profit. After the executive session, the Supervisors unanimously agreed with the Solicitor's opinion that the Glasses should be informed that it was their responsibility to bring the driveway into compliance with the Code. Although there was no formal vote taken on the matter, Deeds was present and participated in the Board discussion. After the Solicitor informed the Glasses that he would notify them by letter of the non - compliance of their property, he stated that the Code provisions on driveways would be enforced from that time forward. Subsequently, by letter dated March 1, 1993, the Solicitor informed the Glasses that their lot was in violation of certain ordinances and suggested that the Glasses review the letter with their attorney and arrange to bring their lot and improvements into compliance. Subsequently, the Glasses sued Deeds, Jr. which resulted in an out -of -court settlement whereby Deeds, Jr. agreed to Deeds, 94- 040 -C2 Page 10 pay the Glasses $4,500.00 for the cost of excavating a new driveway. In applying Section 3(a) of Act 9 of 1989 to the instant matter, we do not find a violation as to the first allegation regarding Deed's participation in discussions /decisions of the Board as to the driveway permit for a home constructed by his son. There would have to be a use of authority of office in an attempt to obtain a private pecuniary benefit or the receipt of a private pecuniary benefit for the public official, a member of his immediate family or businesses with which he or a member of his immediate family is associated in order to establish a violation of Section 3(a). If any one of the necessary components of Section 3(a) is absent, there can be no violation of Act 9 of 1989. Initially, we do not believe that the facts of this case involve any attempt to violate the Ethics Law. Taylor, Order 983. Further, we find the element of a private pecuniary benefit lacking in this case. As to the problem of the driveway at the Glasses' residence, the construction of the driveway by Deeds, Jr. was not in compliance with the Code. However, any type of municipal enforcement action as to non - compliance is typically directed to the owners of the property rather than the original seller of the property, the builder or subcontractors. Thus, regardless of what Deeds said or did at the February 16, 1993 Board meeting, the fact remained that it would be the owners of the property, the Glasses, who had the responsibility for insuring that the property and driveway met Township requirements. In any event, the outcome of the Township action resulted in the Glasses suing Deeds, Jr. which resulted in a settlement with a pay -out by Deeds, Jr. of $4,500.00. Thus, there was not a private pecuniary benefit but rather a pecuniary detriment to Deeds' son in the amount of $4,500.00. Since there was no private pecuniary benefit, we find that Deeds did not violate Section 3(a) of Act 9 of 1989 regarding his participation in discussions /decisions of the Board of Supervisors as to a driveway permit for a home constructed by his son. Knee, Order 956. As to the second allegation that Deeds as Roadmaster did not enforce the driveway ordinance regarding a driveway constructed by his son which did not meet Township specifications, we also find no violation of Section 3(a) of Act 9 of 1989. Under these particular facts, we do not find that there was a use of authority of office. The record reflects non - action on the part of Deeds as to the driveway permit which was not signed. There was also non - action as to any type of enforcement as to this or any other driveway. Commonwealth Court has held that non - action in certain instances does not constitute a use of authority of office or an "act" as to a former public employee representing a person before his former governmental body. McGuire and Marchitello v. State Ethics Commission, 657 A.2d 1346 (1995); Stephens v. State Ethics Deeds, 94- 040 -C2 Page 11 Commission, 132 Pa.Commw. 71, 571 A.2d 1120 (1990). We find that the non - action as to the facts of this case did not constitute a use of authority of office. Therefore, since Deeds did not use the authority of office in his failure to enforce the driveway ordinance, there was no violation of Section 3(a) of Act 9 of 1989. Friend, Order 981. IV. CONCLUSIONS OF LAW: 1. Robert L. Deeds, Sr., as a Robeson Township Supervisor, is a public official subject to Act 9 of 1989. 2. Deeds did not violate Section 3(a) of Act 9 of 1989 regarding his participation in discussions /decisions regarding a driveway permit for a house constructed by his son in that no private pecuniary benefit was obtained. 3. Deeds did not violate Section 3(a) of Act 9 of 1989 regarding his failure to enforce a driveway ordinance as to a driveway constructed by his son in that there was no use of authority of office by Deeds. In Re: Robert L. Deeds, Sr. File Docket: 94- 040 -C2 Date Decided: 11/21/95 Date Mailed: 11/28/95 ORDER NO. 988 1. Robert L. Deeds, Sr., as a Supervisor in Robeson Township, Berks County, did not violate Section 3(a) of Act 9 of 1989 regarding his participation in discussions /decisions regarding a driveway permit for a house constructed by his son in that no private pecuniary benefit was obtained. 2. Deeds did not violate Section 3(a) of Act 9 of 1989 regarding his failure to enforce a driveway ordinance as to a driveway constructed by his son in that there was no use of authority of office by Deeds. BY THE OMISSION, ti c OftusAu6 DANEEN E. REESE, CHAIR