HomeMy WebLinkAbout265 EarnestMr. Charles Earnest
C/0 Mario Melucci, Esq.
3077 West Liberty Avenue
Pittsburgh, PA 15216
Re: #83 -09 -C
Dear Mr. Earnest:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
December 21, 1983
Order No. 265
The State Ethics Commission has received a complaint regarding you and a
possible violation of Act 170 of 1978. The Commission has now completed its
investigation. The individual allegations, conclusions, and findings on which
those conclusions are based are as follows:
I. Allegation: That as an elected Supervisor in Ross Township you cast
critical votes on matters relating to the developer (Frank J. Nascone) and
development of Ross Park Mall (Mall) while employed as a "heavy equipment
accountant" for Building Design Associates (BDA) a sub - contractor of Nascone
at the Mall and also used Township vehicles for private purposes in violation
of Section 3(a), (b) and 1 of the Ethics Act.
A. Findings:
1. You served as an elected Commissioner in Ross Township, Allegheny County,
hereinafter, the Township since January, 1980 and during all periods of
pertinent to these proceedings and as such are subject to the Ethics Act.
2. Developer Frank Nascone proposed to construct a shopping mall to be known
as Ross Park Center, hereinafter the Center or the Mall and a housing project
on approximately 150 acres of land in Ross Township.
Charles Earnest
December 21, 1983
Page 2
3. According to law, the proposed development was presented to the Township's
Planning Commission and Township Commissioners for review as confirmed through
official minutes and records as follows:
a. 12/20/79 - Nascone presented application Z -79 -19 to the Planning
Commission for re- zoning of 75 acres known as the Schramm Farm for the purpose
of erecting a Shopping Center and re- zoning of an additional 22 acres for the
erection of multi- family structures.
b. 8/20/81 - Nascone applications for re- zoning reviewed by the Planning
Commission, including Z -81 -5 (northwest corner of Kinvara Drive); Z -81 -6
(between McKnight Road and White Oak Heights).
c. 1/19/82 - Nascone applications S -81 -15 (subdivision of a 20 -acre land
parcel known as Kinvara Drive); S -81 -6 (sub- division of 2.5 acres off
McKnight Road); and S -81 -18 (subdivision of 5.5 acres on Kinvara Drive) were
reviewed and voted unanimously by the Planning Commission to be recommended to
the Township Commissioners for final approval.
d. 1/19/82 - Nascone application SP- 81 -12, Ross Park Center site plan
reviewed and approved by the Planning Commission by a vote of 4 to 3 for
preliminary approval. SP -81 -12 was recommended to the Township Commissioners
for final approval by a vote of 5 to 2 subject to seven conditions.
4. The minutes of the Ross Township Commissioners' meetings or public
hearings confirm the following (unless otherwise noted, source is minutes):
a. 7/28/80 - Ordinance No. 1366, Frank Nascone request to re -zone 4.049
acres for Ross Park Center from R -1 low density residential to C -1 highway
commercial considered at public hearing. You seconded the motion to approve
the ordinance and voted in favor of the ordinance's passage. Ordinance
passed by a vote of 4 to 2. (Source - transcript of public hearing)
b. 8/11/80 - Ordinance No. 1352 pertaining to Nascone zoning request
enacted by a 7 to 1 vote. You seconded the motion to enact the ordinance
and vote in favor of its enactment. Ordinance related Z- 79 -19. See No. 3(a)
above.
c. 7/27/81 - Nascone presented a request to the Board of Commissioners to
re -zone additional parcels of land.
d. 9/14/81 - Public hearing held to consider three proposed ordinances
pertaining to additional requests of Nascone.
e. 9/14/81 - Ordinance No. 1401 (Nascone request for re- zoning of northwest
corner of Kinvara) passed a vote of 5 to 4. You voted in favor of the
enactment of the Ordinance. See No. 3(b) above.
Charles Earnest
December 21, 1983
Page 3
f. 9/14/81 - Ordinance No. 1402 (Nascone request for re- zoning of land
parcel between McKnight Road and White Oak Heights to enlarge the Center).
You seconded the motion to enact the ordinance and voted in favor of the
ordinance's passage which was enacted by a 5 to 4 vote: See No. 3(b) above.
g. 9/14/81 - Ordinance No. 1403 (Nascone request for re- zoning of
additional land parcel between McKnight Road and White Oak Heights) passed a
6 to 3 vote. You voted in favor of enactment of the Ordinance.
h. 12/14/81 - Resolution No. 977 (accepting Deed of Dedication for a public
street connecting McIntyre with Ross Park Center) passed by a 5 to 4 vote.
A motion was made to table said resolution until the Nascone site plan
reviewed and approved. Motion defeated by a 5 to 4 vote. You voted
with the majority on each of the motions.
i. 2/8/82 - Nascone submitted three subdivision applications (S- 81 -15,
S- 81 -16, S- 81 -18) to the Township Commissioners. All three passed by a
unanimous vote. You seconded the motions that S -81 -15 and S -81 -16 be
enacted and voted in favor of enactment of each.
(1) S -81 -15 - See No. 3(c) above, related to Nascone subdivision of
20 acres of fronting Kinvara Drive.
(2) S -81 -16 - See No. 3(c) above, related to Nascone subdivision of
2.5 acres off McKnight Road.
(3) S -81 -18 - See No. 3(c) above, related to Nascone subdivision of
of 5.5 acres on McKnight Road.
j. 2/8/82 - Site plan application of Frank Nascone (SP- 81 -12).
Seven attached conditions were voted on separately and your votes were as
follows:
(1) Condition #1 - relating to a minimum of 15 -feet buffer zone where
Nascone property abuts residential areas. Passed by a 5 to 4 vote.
You voted against this condition.
(2) Condition #2 - relating to provisions contained in Nascone letter of
8/8/80. Passed by unanimous vote with you voting.
(3) Condition #3 - to require the developer to submit reasonable projected
construction schedule. Passed by unanimous vote. You stated only that
you were "present."
(4) Condition #4 - to require the developer to submit comprehensive plan
of site and total landscaping, etc. Passed by unanimous vote with
exception that you stated you were "present."
(5) Condition #5 - regarding access road if development agreement
rescinded. Passed by a 5 to 4 vote. You voted against the condition.
(3)
Charles Earnest
December 21, 1983
Page 4
k. The above meeting of February 8, 1982 continued over until February 9,
1983 when the following occurred:
(1) As to Condition #1, amendments were made thereto to indicate that
screening of area should not inhibit access to "the roadway off
McIntyre Road. These amendments passed by a 6 -3 margin and you
voted in favor of the amendment.
(2) Condition #6, as to lighting was reviewed and on advice of the
Solicitor was removed from consideration.
Condition #7, as to additional marketing data was reviewed and on
advice of the Solicitor was removed from consideration.
(4) Condition #8, as to additional traffic data, was reviewed and on
advice of the Solicitor removed from consideration.
1. 2/9/82 - a final motion was made to accept the site plan as submitted
with the conditions adopted (see j and k above) and you voted against this
approval.
m. 6/28/82 - Solicitor reports an appeal was filed by Nascone to the
decision of the Zoning Hearing Board with respect to the access road to the
Center from McIntyre Road. Motion to appoint special counsel to intervene
to defend the ZHB action ended in a 4 -4 tie. You voted against the motion.
n. 7/12/82 - Motion to instruct Township Solicitor to file necessary papers
to indicate the Township intends to intervene in supporting the Zoning
Hearing Board's (ZHB) decision to deny Nascone request for access road to
Ross Park Center from McIntyre passed by a 5 to 4 vote. You voted against
the motion.
o. 7/12/82 - Motion requesting Manager to advertise that the next regularly
scheduled Board meeting, the Board will be rescinding the prior motion and
consideration will be given to the hiring of outside counsel to the ZHB
decision passed by a 5 to 4 vote. You voted against adoption of the motion.
p. (1) 7/26/82 - Motion by Commissioner McAfee to rescind the action of the
Board not to hire outside.counsel for the ZHB appeal passed by a 5 to 4
vote. You voted negatively.
(2) Commissioner McAfee then made a motion to obtain special counsel for
the Zoning Hearing Board to defend their decision and specifying the
counsel /firm to be appointed. The vote was 5 -0 in favor of the motion
and you did not vote on this motion.
(3) During this meeting Commissioner McAfee commented on the business
relationship of another Supervisor with Nascone and you commented this
was invading someone's privacy.
Charles Earnest
December 21, 1983
Page 5
q. 12/27/82 - Subdivision applications of Frank J. Nascone - Ross Park Mall
(S -82 -20 through S- 82 -27). Passed by unanimous vote with you voting in
favor of the enactment.
5. a. The minutes of the Township meetings further disclose that at a
regularly scheduled meeting on January 26, 1981, Chairman Louis Cherpes
established a temporary Construction Committee whose function would be to
review various projects under construction and to report the status of these
projects to the Board. You and Commissioner Fodor were appointed to this
Committee by the Chairman.
b. There is no evidence that your appointment to this Committee was
derived from your experience in or knowledge of the building or
construction industry or that you possessed same.
c. Commissioner Fodor expressed surprise at his appointment as a member
of this Committee as well because he has no knowledge of or experience in
the building or construction industry.
d. The Township employed an Engineer to insure that Nascone conformed to
his construction, excavation, etc. to legal requirements and approved
plans.
6. You reported for the Construction Committee to the Township Commissioners
at their meetings regarding the Nascone /Center development site as follows:
a. 2/9/81 - You commented that you visited Nascone site and toured the
site and said workers are doing a commendable job.
b. 2/23/81 - You visited Nascone site and reported they are doing a good
job.
c. 3/9/81 - You reported work progressing very well at the Nascone site and
complimented them for their efforts in keeping roadways clear of mud.
d. 3/30/81 - You reported the completion of laying the 42" concrete
pipe at the Nascone site.
e. 4/13/81 - You reported on the Nascone project.
f. 5/11/81 - You reported that the grading on the Nascone site was
progressing at an accelerated pace and also reported on incidents of
vandalism at the site.
g. Commissioner Fodor visited the site on only one occasion and gave no
reports which were recorded in the minutes of Township meetings available
and reviewed.
Charles Earnest
December 21, 1983
Page 6
7. Building Design Associates (RDA), was the architectural firm employed by
developer Frank Nascone to design the plans for the proposed Ross Park Center.
a. The current President and sole stockholder in BDA is Robert Hildebrand.
b. BDA was incorporated on May 14, 1981.
c. Prior to May 14, 1981, BDA was registered as a fictitious name in Volume
196, Page 246 (No. 65515) with the Allegheny County Prothonotary and had
been so registered on or about November 18, 1977.
d. Hildebrand was contacted by Nascone in late 1978 or early 1979 to
prepare designs and act as architect for the Center, including grading, site
development and landscaping on the acreage to be used /developed as the
Center /Mall.
e. The Center is not the first project on which Nascone employed the
services of Hildebrand or BDA.
f. Approximately 25% of Hildebrand's /BDA's yearly business derives from
contracts with Nascone, according to Hildebrand.
g. From 1973 to sometime in 1975, or for approximately two years,
Hildebrand worked as an architect fnr Nascone.
8. Hildebrand /BDA, on occasion represented developer Frank Nascone or
accompanied Nascone to meetings with the Ross Township Planning Commission
(PC) and the Board of Township Commissioners on Mall- related matters or when
same were presented to the PC or the Commissioners. See Nos. 3 and 4 above.
9. As a result of these meetings, you became familiar with Robert Hildebrand
and subsequently accepted employment with BDA commencing January 1, 1981 at a
salary of $1,500 per month.
a. You were hired to work exclusively at the Ross Park Center with
duties consisting of monitoring the pieces of heavy equipment working at the
job site and to observe that the excavation was proceeding according to
schedule. You had never done this type of work previously.
b. You were not required to punch a time clock, submit time sheets or
written reports while working for BDA. You would on occasion report to
Project Engineer, Rick Thomas, an employee of developer Nascone. There are
no records of reports or work sheets you produced while so employed.
c. Your salary was included as part of BDA's monthly billing to developer
Nascone which were not itemized to include your name or salary as a
specifically enumerated cost /charge.
Charles Earnest
December 21, 1983
Page 7
10. You were injured at the Ross Park Center site on August 17, 1981 while
riding in a vehicle operated by the Project Engineer.
a. You sustained back injuries which required hospitalization.
b. You claim you did not know who paid for the medical bills related to
this accident.
11. You never returned to work at the Ross Park Center or in any other
capacity for BDA after the August 17, 1981 injury.
a. You continued to receive monthly payments in an amount of $1,500 per
month beginning January 1, 1981 as set forth above (No. 9) through February,
1982.
b. You were not paid by BDA after the end of February, 1982.
12. While Hildebrand's /BDA's records reveal W -2 forms showing payments from
BDA to you as outlined herein, Hildebrand's recollection of the circumstances
surrounding your hiring and employment are vague.
a. Hildebrand was unable to recall if he offered you the job or if you
solicited same.
b. Hildebrand initially indicated he was unaware of your accident /injury
(No. 10 above) until you filed a claim for Worker's Compensation. (See
No. 13 below) in March, 1982
c. Subsequently, Hildebrand related that you were retained on the BDA
payroll after your August 17, 1981 accident /injury because Hildebrand
believed your injuries were not serious; you would be able to return to work
within the month; and the continuation on the payroll was in expectation you
would be "back on your feet" soon.
d. Hildebrand related that your payroll status was continued until the end
of February, 1982 as a gesture of "good will."
13. You filed a Worker's Compensation (WC) claim with the Department of
Labor and Industry on March 23, 1982 with respect to the August 17, 1981
accident /injury (See No. 10 above).
a. The claim lists BDA as the employer.
Charles Earnest
December 21, 1983
Page 8
b. The injury date is August 17, 1981 and the location of the occurrence
of the injury as recorded on the WC form is "Ross Park Center, Ross
Township," Pittsburgh, PA - Allegheny County."
c. Your WC claim form, which you signed, further states that you advised
Project Manager Richard Thomas of your injury /accident and your salary was
$1,500 per month.
d. You requested hearings set for July 13, 1982 and November 1, 1982 be
cancelled because of illness or incapacity to attend.
e. Attorney for Hartford Insurance Company, WC insurer for BDA, was
prepared to proceed with a hearing and produce evidence that would be
damaging to your claim with respect to questioning your status as an
employee with BDA and the notice provided of your injury /accident.
f. Immediately prior to a Worker's Compensation hearing scheduled for
March 24, 1983, you withdrew your claim petition.
B. Discussion: As an elected Commissioner in Ross Township you are a "public
official" as that term is defined in Section 2 of the Ethics Act. As a
"public official" your conduct must conform to the requirements of the Ethics
Act. Section 3 of the Ethics Act states:
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).
(b) No person shall offer or give to a public official
or public employee or candidate for public office
or 'a member of his immediate family or a business
with which he is associated, and no public official
or public employee or candidate for public office
shall solicit or accept, anything of value,
including a gift, loan, political contribution,
reward, or promise of future employment based on
any understanding that the vote, official action,
or judgment of the public official or public
employee or candidate for public office would be
influenced thereby. 65 P.S. 403(b).
Charles Earnest
December 21, 1983
Page 9
These provisions of the Ethics Act are clear. They preclude a public
official from using his public office for his personal gain. There is no
doubt that you were employed by BDA. In this case there is no doubt that you
knew that BDA was a sub - contractor of Nascone on the Center project. There is
no doubt that as a member of the Board of Commissioners and a "construction
committee" member you knew that if Nascone's requests to the Township were
approved, BDA would have the opportunity to continue to serve as Nascone's
architect /engineer at the Center. There is no doubt that if RDA continued
with such a contract that your employment with BDA was more certain and
secure. Alternatively, it is clear that if Nascone's project at the Center
was rejected by the Township, Nascone would not need the services of BDA on
this project and your services at the Center with BDA would be unnecessary.
Thus, your votes in favor of Nascone's project (See No. 4 above) following
your employment by BDA on January 1, 1981 (See No. 8 above) were votes which
would insure the continuation of your job with BDA which would inure to your
financial interest.
The State Ethics Commission has previously stated that the question of
whether an official may vote on a developer's proposals depends upon the
"factual circumstances and the actual and temporal relationship between the
individual supervisor and the developer." See Sowers, 80 -050. In Sowers, we
ruled that a public official must refrain from acting on the project or
proposal of a developer whose project /proposal is subject to the official's
review where:
1) the official will seek, has been asked or can reasonably and legitimately
anticipate being asked to perform work /services for the developer; or
2) the official has obtained /secured work from the developer and the official
is asked to vote on matters relating to the developer which arise after the
official obtained /secured the work /performed services for the developer.
Your actions and votes after you were employed by RDA, the sub - contractor
of Nascone, fall within the parameters of conduct addressed by Sowers and
prohibited by Section 3(a) of the Ethics Act. You simply may not use your
public office and vote to benefit your employer, BDA, or the developer
employing your employer. See also Knox, 81 -009. Our conclusion that you
violated Section 3(a) of the Ethics Act follows from this discussion.
Additionally, we must express our view of your actions under Section 3(b)
of the Ethics Act. It is clear that you accepted employment with BDA although
the extent to which you actually performed services for BDA and the
circumstances surrounding your hiring are unclear. This lack of clarity on
these points given your official role with respect to the Center is
significant and distressing. It is significant in that without clear evidence
as to the nature and extent of the services you rendered for BDA we are
inclined to consider your employment by BDA as "payment" for something other
than for the services you rendered to BDA.
Charles Earnest
December 21, 1983
Page 10
However, it is distressing that we have insufficient evidence to conclusively
find that you were not offered or accepted employment with BDA on your
understanding that your official actions favorable to BDA and Nascone would
follow. Absent such specific evidence and particularly documentary evidence
of your services with respect to the Center and BDA, we are unable to form an
opinion as to whether Section 3(b) has been violated.
The above discussion is not intended to indicate our approval of
your actions. To the contrary, your actions, including your votes and the
evidence we do have as to the work you did for BDA and the circumstances
surrounding your employment by BDA, lead us to believe that this entire matter
must be referrred for further review to the Office of the Attorney General.
In doing so we also are mindful of our prior Order No. 171 (Cherpes) and
recommend to the Attorney General's Office that your course of conduct before
and after January 1, 1981 be carefully scrutinized and prosecutions be
initiated as warranted.
C. Conclusion: Your votes as outlined above violated Section 3(a) of the
Ethics Act. This matter will be referred to the appropriate law enforcement
officials with our recommendation, pursuant to Section 7(11) of the Ethics
Act, 65 P.S. 407(11), that criminal charges be lodged and prosecution be
undertaken.
While the evidence we have is insufficient to make a similar
recommendation with respect to your activities under Section 3(b) of the
Ethics Act, we will make our files in this matter available to the appropriate
law enforcement officials for their review and further investigation and
processing as appropriate.
II. Allegation: That you failed to report your income from BDA and Ross
Township which exceeded $500.00 on your Financial Interest Statements as
required by the Ethics Act, Section 5(b)(4), 65 P.S. 405(b)(4).
A. Findings: Findings No. 1 -13 are incorporated here by reference, in
addition to which we find as follows:
14. Examination of employer's copies of your W -2 forms on file with BDA
revealed the following earnings /income:
a. 1981 - $12,000.00 - while BDA was a partnership
6,000.00 - after BDA incorporated
$18,000.00 - Total
b. 1982 - $3,000.00 Total ($1,500 monthly salary for January and
February, 1982)
15. Ross Township Commissioners are compensated at the rate of $250.00 per
month and are paid quarterly. Total yearly income is $3,000.00.
Charles Earnest
December 21, 1983
Page 11
16. You received income from Ross Township totaling $3,000.00 for each year
for the years 1980, 1981 and 1982.
17. As a public official you were required to file a Financial Interest
Statement pursuant to the Ethics Act.
18. You filed Financial Interest Statement reports as follows:
a. Your Financial Interest Statement for the calendar year 1979 filed on
May 1, 1980 included in response to Item #5 - Direct or Indirect Sources
of Income -- left blank.
b. Your Financial Interest Statement for the calendar year 1980 filed on
April 29, 1981 included in response to Item #15 - Direct or Indirect
Sources of Income - NONE.
c. Your Financial Interest Statement for the calendar year 1981 filed on
May 13, 1982 included in response to Item #15 - Direct or Indirect
Sources of Income - NONE.
d. Your Financial Interest Statement for the calendar year 1982 filed on
March 2, 1983 included in response to Item #15 - Direct or Indirect
Sources of Income - NONE.
19. You state that you did not include BDA or the Township as "Sources of
Income" on the forms referred to above because you were not aware you were
required to disclose /report same.
a. You state you relied upon the advice of Township Manager Harold
Huckestein in completing your Financial Interest Statement.
b. The Financial Interest Statement form contains "Instructions" which
clearly state that sources of income in excess of $500 or more should be
disclosed and that "employer(s)" from whom the filer received $500
or more should be listed.
B. Discussion: The Ethics Act Section 5(b) requires a Financial Interest
Statement (FIS) to include the following information:
Section 5. Statement of financial interests.
(b) The name and address of any person who is the direct
or indirect source of income totalling in the aggregate
$500 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, 65 P.S. 405(b)(5).
Charles Earnest
December 21, 1983
Page 12
Regulations of the State Ethics Commission require that this data be
supplied on the FIS of a "public official" by May 1 of each year he or she
holds office. See 51 Pa. Code 4.4 (a) and (b). As a public official you were
required to provide such information on the FIS reports you filed covering the
calendar years 1980, 1981 and 1982.
Given the facts as found above it is clear you failed to report sources
of income as follows:
1) On your FIS to cover 1980, filed April 29, 1981 --
omitted Ross Township;
2) On your FIS to cover 1981, filed May 13, 1982 --
omitted Ross Township and BDA;
3) On your FIS to cover 1982, filed March 2, 1983 --
omitted Ross Township and BDA.
You have clearly violated the reporting requirements of the Ethics Act
and State Ethics Commission regulations. The only question is whether these
omissions in reporting were willful and intended to deceive. Your failure to
report Ross Township as a source of income is not an uncommon omission. In
our experience we have found that officials have a tendency to neglect to
report income from the entity they serve. Thus, we can understand and accept
omission of this source of income as most likely inadvertent.
With respect to your failure to report BDA as a source of income,
however, we reach a different conclusion. We believe that your omission of
BDA as a source of income on your FIS covering the years 1981 and 1982 was
intentional. We believe that you wished to and did conceal your employment
relationship with BDA so that the public would not be alert to question the
impartiality of your votes on Nascone's requests to the Township with respect
to the Center project. The Ethics Act is designed to require particular
information which, among other things, would provide data to the public
necessary to discern possible conflicts. If you had properly reported the BDA
source of income the public would have been able to discern the possible
conflict between your employment with BDA and your votes on the Center
project. It is more likely than not that when faced with the choice of
reporting this new and different source of income or omitting same, you
consciously chose'to omit it and avoid the questions which might result from
such disclosure given your votes as a Commissioner.
C. Conclusion: You violated the Ethics Act by failing to properly report
Ross Township and BDA as sources of income as outlined above. While the
omission of the Township was probably inadvertent, the omission of BDA as a
source of income was, in our estimation, intentional. We will refer this
conclusion to the appropriate law enforcement officials for their review with
the recommendation that criminal charges be lodged and prosecution be
undertaken with respect to your failure to report BDA as a source of income
for those FIS reports filed covering the years 1981 and 1982.
Charles Earnest
December 21, 1983
Page 13
III. Allegation: That you receive regular and periodic gifts of fruit from
developer Nascone.
A. Findings: Findings No. 1 -19 are incorporated here by reference, in
addition to which we find as follows:
20. In December, 1980 Developer Frank Nascone enrolled all nine
Ross Township Commissioners in a Harry and Davids Fruit -of- the -Month Club as a
token of appreciation.
a. Harry and Davids is a mail -order fruit firm located in Medford, Oregon.
the firm specializes in packaging different fruits that are sent to a member
each month. The Harry and David catalog bills the monthly packages as gifts
of the Original Fruit -of- the -Month Club.
b. Nascone purchased the "Royal 12 Box Club" which is the top of the line
of Harry and Davids for each Ross Township Commissioner.
c. Enrollment in the Royal 12 Box Club guaranteed a package for 12 months
and you received and accepted this gift.
d. The cost for these enrollments was $139.95 each.
e. During 1981 only six Ross Township Commissioners, including you,
accepted and received the gift from Nascone.
f. Each Commissioner receiving the gift received a gold embossed
certificate announcing the impending gift. As donor, Nascone's name
appeared on the first inside page.
g. During 1982 six Ross Township Commissioners, including you, received a
similar gift of fruit from Nascone and the cost of the package for 1982 was
$157.95 for each enrollment.
21. Although you admit having received these monthly gift packages since 1980
as set forth above, you state you were unaware that they were sent by Nascone
and you maintain you thought they were gifts from an old "Army buddy."
B. Discussion: We must believe that you received and accepted these gifts
with some information or indication they were presented by or on behalf of a
developer (Nascone) whose projects you were reviewing and approving. We do
not need to address the question of whether or under what circumstances
acceptance of this or similar gifts would he acceptable or prohibited under
the Ethics Act. We need only conclude that your acceptance of these gifts, in
light of all the other circumstances apparent in this case, was improper.
Charles Earnest
December 21, 1983
Page 14
You were, when accepting these gifts, already employed by a Nascone
sub - contractor. You were, when accepting these gifts, being asked to review
and approve the projects of this developer. Good sense and discretion, if
nothing else, should have compelled you to reject these gifts. If nothing
else, Section 1 of the Ethics Act which requires public officials to assure
the public that their financial interests present neither a conflict nor the
appearance of a conflict with the public trust, should have counteracted your
urge to accept these gifts. Accepting these gifts could hardly assure the
the public of your honesty and impartiality when reviewing the benefactor's
projects /requests.
C. Conclusion: In accepting these gifts you created the appearance of a
conflict with the public trust. You should not accept such gifts under
similar circumstances in the future.
Our files in this case will remain confidential in accordance with
Section 8(a) of the Ethics Act, 65 P.S. 408(a). However, this Order is final
and will be made available as a public document 15 days after service (defined
as mailing) unless ynu file documentation with the Commission which justifies
reconsideration and /or challenges pertinent factual findings. See 51 Pa. Code
2.38. During this 15 -day period, no one, including the Respondent unless he
waives his right to challenge this Order, may violate this confidentiality by
releasing, discussing or circulating this Order.
Any person who violates the confidentiality of a Commission proceeding
is guilty of a misdemeanor and shall he fined not more than $1,000 or
imprisoned for not more than one year or both, see 65 P.S. 409(e).
PJS /jc
By the Commission,
(::/a^j
Paul J. ith
Chairman