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HomeMy WebLinkAbout752 KuhlmanIn re: Robert J. Kuhlman i; ✓� - �iei - -'_) STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 : File Docket: 87 -154 -C : Date Decided: June 21, 1990 : Date Mailed: July 9, 1990 Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair G. Sieber Pancoast Dennis C. Harrington James M. Howley Daneen E. Reese The State Ethics Commission received a complaint regarding a possible violation of the State Ethics Act, No. 170 of 1978, 65 P.S. 401 et. seq. 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 filed and a hearing was 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 fifteen 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, however, does not affect the finality of this adjudication. A reconsideration request must be received at this Commission within fifteen 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 §2.38. The files in this. case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. 408(a) during the fifteen day period and no one unless the right to challenge this Order is waived, may violate confidentiality by releasing, discussing or circulating this Order. However, ccnfidentiality does not preclude discussing this case with an attorney at law. 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, 65 P.S. 409(e). ADJUDICATION I. Allegation: That you, a Benner Township Supervisor, violated the following provisions of the State Ethics Act, in that you made a motion and cast the deciding vote at the August 18, 1986 supervisors' meeting to authorize the township solicitor to represent you in a private matter, and you voted to pay the solicitor's bills regarding this matter: Section 3. Restricted Activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. §403(a). A. Findings 1. You served as a Township Supervisor in Benner Township, Centre County, PA: a. You have served in this position from January 1986 to the present. b. You also served as Road Superintendent from January 1986 to January 1989. 2. Since 1983, Benner Township has been involved in a.l zon dispute with township residents Gloria and Larry Lohr, Sr. a. By court order of the Centre County Court of Common Pleas, handed down in 1983, the Lohr's ceased certain activities on their premises. b. At township meetings, members of the Lohr family have attempted to debate the unfair treatment they received with regard to zoning regulations. 3. On the night of August 4, 1986 a physical altercation occurred between Robert Kuhlman and members of the Lohr family after a township supervisors meeting outside of the municipal building. 4. Minutes of the township supervisor's meetings reflect the following in relation to the instant situation. August 4, 1986 Heated argument followed by Mr. Lohr and the supervisors, meeting adjourned for five minutes to settle the dispute. Mr. Lohr disturbed about zoning regulations . Mr. Robert Kuhlman Page 3 August 18, 1986 Mr. Kuhlman made a motion to have the township pay attorney fees for the assault charges from August 4, 1986. Mr. Novak Esquire, the township attorney is to repre'ent the supervisors, seconded by Mr. Cain. Motion carried. A voice vote was taken. Supervisor Kuhlman - yes, Supervisor Cain yes, and Supervisor Meyer - abstaining. September 15, 1986 Reflects a caption that bills were reviewed at this meeting. Also that Supervisor Kuhlman made a motion for the bills to be paid which was seconded by Supervisor Cain and which passed unanimously. Note: There was no listing of individual bills paid as' a result of this motion. December 3, 1986 Reflects that bills were reviewed during this meeting. Supervisor Moyer made a motion to pay the bills, which was seconded by Supervisor Cain. Records indicated that the motion carried. Again, no individual listing of bills paid was noted. 5. Township records of payments to Solicitor Novak for services rendered concerning the alleged assault were as follows: Billing statement of September 12, 1986. 6 hours at $60.00 per hour, total $360.00. Billing statement of November 26, 1986. 5.1 hours at $60.00 per hour, total $306.00 total $660.00 6. Records of the Centre County Court of Common Pleas, No. 1983 - 2652, concerning zoning in Benner Township, reflect that Gloria and Larry Lohr Sr. agreed that they would cease the following uses and activities on their premises: a. Operating a trucking operation or maintaining trucks used or sub - contracted to a trucking business as a commercial enterprise. Parking trucks, tractors,/oor trailers or back hoes and other vehicles or allo'fing Mr. Robert Kuhlman Page 4 employees to park such vehicles on their premises. Maintaining storage and repair facilities or using storage areas on their premises. Maintaining or burning old tires or other miscellaneous junk on their premises. Maintaining or storing any other type pf materials or equipment for their business or commercial use on their premises. Operating equipment which produces such noise as to constitute a public nuisance or disturbance to the neighbors. 7. As a result of the August 4, 1986 altercation, you filed criminal complaints against three members of the Lohr family. A summary of charges listed in the complaints follows: a. At or about 8:45 p.m. on August 4, 1986, during the course of a Benner Township meeting, defendants Larry E. Lohr, Fred Lohr and Larry Lohr, Jr., engaged in disorderly conduct. The defendants began jumping up and down, pushing and throwing chairs and using obscene language. The defendants then charged to the front of the meeting room in a threatening, violent and tumultuous manner. This action was directed in a manner more intended for Supervisor Robert Kuhlman for past action he had participated in as a member of the board of supervisors of Benner Township and for action taken or denied during the meeting. Following the meeting, at or about 9:30 p.m., the victim Robert / Kuhlman, was proceeding to his car located in -the( parking lot of the township building when he was physically confronted by the defendants. Words were exchanged between the victims and the defendants when Defendant Fred Lohr suddenly grabbed the victim in a head lock, knocking his glasses to the ground. Fred Lohr then threw the victim to the ground causing the victim to suffer injuries. While the victim attempted to get back on his feet, defendant Larry Lohr came over and pushed him back to the ground causing further injuries. While on the ground, witness Gordon Cain observed defendant Larry Lohr Jr., walk over to where the victim's glasses had fallen and Larry Lohr Jr. deliberately stepped on and broke the victims glasses. Robert Kuhlman has suffered neck and back injuries as a result of being grabbed and thrown to the ground incurring medical expenses in the amount of $193.95 and has had to replace his broken glasses at a value of $135.00 for total expenses in the amount of $328.95. 8. The criminal complaint that Mr. Kuhlman filed against the Lohr's were not approved by the district attorney or the district judge. / Mr. Robert Kuhlman Page 5 9. The second class Township Code provides as follows: Section 582. Duties of Solicitor. The township solicitor, when directed or requested so to do, shall prepare or approve such bonds, obligations, contracts, leases, conveyances, ordinances and assurances to which the township may be a party; he shall commence and prosecute all actions brought by the township for or on account of any of the estates, rights, against the township, or any officer thereof, wherein or whereby any of the estates, rights, privileges, trusts, ordinances, or accounts, of the township, may be brought in question before any court in the Commonwealth, and shall do every professional act incident to the office which he may be authorized or required to do by the board of supervisors or by, any resolution. He shall, whenever required, the board of supervisors, or any of them, with his opinion in writing upon any question of law which may be.submitted by any of them in their official capacities. 10. Robert Kuhlman believed that the Township Code Section 582 allowed the solicitor to review the matter because the events occurred at a township meeting and were related to his position as township supervisor. 11. The Lohr's had been disruptive during the township meeting. 12. Many neighbors complained to the township about noise and conditions that would be similar to a junk yard at the Lohr's property. 13. The Lohr's complained that other township residents were in violation but were not being penalized. III. Discussion: As a Benner Township Supervisor, Robert Kuhlman, hereinafter Kuhlman is a public official as that term is defined under the Ethics Act. 65 P.S. Section 402; 51 Pa. Code Section 1.1. As such, his conduct is subject to the provisions of the Ethics Ac and the restrictions therein are applicable to him. Initially, it is noted that Section 5 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 Mr. Robert Kuhlman Page 6 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 prior to the effective date of Act 9 (June 26, 1989), we must apply the provisions of Act 170 of October 4, 1978, P.L. 883 to determine whether the Ethics Act was violated. Under Section 3(a), quoted above, this Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his . compensation is prohibited by Section 3(a): Hoak /McCutcheon v.'State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet v. State Ethics Commission,, 109 Pa. Commw. Ct. 432 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow v. State Ethics Commission,, 116 Pa. Commw. Ct. 19, 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. / In determining whether a violation of Section 3(a) of the Ethics Act quoted above occurred when Kuhlman made a motion and cast the deciding vote to authorize the township solicitor to provide certain legal services and voted to pay said solicitor's bill, we note that the solicitor's services in question related to an altercation between Kuhlman and the Lohr family after a meeting of the Board of Township Supervisors on August 4, 1986. It appears that the Lohr family was dissatisfied with certain zoning regulations that had been made in that it affected their business of truck operation, maintenance, storage and repair. In a criminal complaint which was filed by Kuhlman against the Lohr family., it is alleged that the Lohrs engaged in disorderly conduct at the August 4, 1986 meeting which was followed by a physical altercation between members of the Lohr family and Kuhlman in a parking lot after the township meeting had concluded. Thereafter, Kuhlman requested the township solicitor to review the legal ramifications of the above incident on the theory that the event occurred at a township meeting and related to his position as township supervisor. In an August 1986 meeting Kuhlman made a motion and cast the deciding vote to pay fees to the solicitor for services regarding the alleged assault. Mr. Robert Kuhlman Page 7 Although there has been a use of office by Kuhlman in making and voting in favor of a motion, the necessary element of a financial gain to himself does not in our view exist because it appears that Kuhlman was merely making an effort to have the solicitor perform legal research or relative to the matter of the conduct of public officials or citizens at township meetings. In light of the above, we fin, that Kuhlman did not violate Section 3(a) of the Ethics Act under'these circumstances. IV. Conclusions of Law: 1. As a Benner Township Supervisor, Robert Kuhlman is a public official subject to the provisions of the Ethics Act. 2. Kuhlman did not violate Section 3(a) of the Ethics Act when he made and voted in favor of a motion to pay the township solicitor's bills regarding legal services which were related solely to township business. In re: Robert J. Uhlman : File Docket: 87-154-C I Date Decided: illne_43 : Date Mailed: Jailry • ORDER No. 752 1. Robert Kuhlman as a Benner Township Supervisor did-not/ violate Section 3(a) of the Ethics Act when he made and voted in favor of a motion to pay the township solicitor's bills regarding legal services which were related solely to township business. BY TH COMMISSION, ELENA G. HUGHES, CHAIR