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HomeMy WebLinkAbout353 LapriolaMr. Vito Lapriola P. 0. Box 138 Avis, PA 17721 Re: No. 83 -160 -C Dear Mr. Lapriola: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION November 28, 1984 Order No. 353 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 President of Borough Council in Avis Borough, you participated in proposing, discussing and approving a housing project /development in 1980 known as Oak Grove Gardens and subsequently, in 1982 both you and your wife were hired as employees at Oak Grove Gardens and that the Borough is currently considering another housing project /development where you may again be hired or serve as Manager. These actions allegedly violate Section 3(a) and (b) of the Ethics Act, 65 P.S. 403(a) and (b) respectively. A. Findings: 1. You have served as a member of Avis Borough Council since January, 1973 and have also served as Council President for most of those years. As an elected official you are subject to the provisions of the Ethics Act. 2. As early as 1976, Avis Borough Council considered the possibility of an elderly housing project being constructed in Avis Borough, hereinafter, the Borough. 3. A housing canmittee was formed to discuss such possibilities and funding sources. You have served on the housing committee. 4. Minutes of the meetings of Borough Council confirm the following: a. February 11, 1976 - Special Meeting, Council unanimously adopted Resolution #65 for the purpose of applying for funding for (35) units of elderly housing. You voted in favor of the Resolution. Vito Lapriola Page 2 b. December 13, 17 - Regular meeting, you moved and Councilman seconded to borrow $10,000 from the State Avis for the purchase of the Avis Elementa This motion carried unanimously. - Resolution #72. Borough Council unanimous upon the location of the proposed site of housing project for Avis. The project was located at the former elementary school si Short Street. November 28, 1984 Ma rks Bank of ry School ly agreed the elderly to be to on c. February 4, 1980 - At a regular meeting of Borough Council, Mayor Morton reported on a survey for elderly housing; 435 interviewed with 168 "yes" votes and 38 "no" voted in in regard to the interest in living in a unit within within the Borough. d. February 18, 1980 - Special Meeting. Funding for elderly housing discussed. Michael Matsko, Farmers' Home Administration (FHA) reported that Clinton County is a target area for funding but probably no more than (40) units would be approved. e. March 3, 1980 - Regular meeting. Motion by Marks, second by Wolfe to pass Resolution #82 authorizing the Mayor to execute an option agreement between Alexander Properties of Harrisburg and Borough Council for the purchase of the old school property for the purpose of development of elderly housing units. f. June 2, 1980 - Regular Meeting. William Russell, along with John Irvin and Stiles Williamson of the Clinton County Housing Authority (CCHA), discussed funding applications through FHA and PA Housing Finance Agency for the elderly housing project. g. July 7, 1980 - Regular Meeting. You reported of a meeting you and Councilman Wolfe had with FHA concerning elderly housing application. The Borough showed a new application for 1.5 million for 42 units in 1980 and 1981. Application to be submitted before August 8, 1980 by Alexander Properties for the Borough. h. July 15, 1980 - Special Meeting. Amendment passed to Section 601.c(1) of the Zoning Ordinance of 1974 that at least one -half (1/2) parking space per apartment be required. You voted in favor of that amendment. Vito Lapriola Page 3 i. December 8, 1980 - Regular Meeting. You reported that the Borough had been awarded (42) units of elderly housing by FHA under Section 8. j- January 16, 1981 k. March 2, 1981 5. With relation to this Gardens or the "project," Grove Associates on Augus August, 1981. November 28, 1984 - You stated you needed Council's approval before any action could begin by the developer. - Motion by Councilman Kehoe, seconded by Councilman Wolfe to have the developer start the proper procedure for the (42) units of elderly housing. Motion passed unanimously. - Special Meeting held regarding elderly housing project. Tom Wenger, Alexander Properties, presented two site plans: (1) HUD type project, two stories high, designated SK -1A and (2) Garden type apartments, designated SK -1B. - Motion Kehoe, second Schomhl, to accept SK -1B plan. Motion carried unanimously and you were present and voted. - Motion Wolfe, second by Schomhl, to name the units Oak Grove Garden. Motion passed unanimously and you were present and voted. - Motion Wolfe, second Kehoe, that Oak Grove Gardens be permitted to hook into the Borough sanitary sewer system. Motion carried unanimously and you were present and voted. Housing Committee reported t nearly completed and will be Properties for the final appl on March 16, 1981. The commi agreement was signed between Alexander Properties for the housing complex. hat the housing survey was forwe rded to Alexander ication to be submitted ttee reported that an Avis Borough and development at the project, hereinafter referred to as Oak Grove application was made for a zoning permit by Oak t 12, 1981 with construction to begin sometime after a. Oak Grove Associates is a limited partnership and owner of the Oak Grove Gardens. Vito Lapriola Page 4 November 28, 1984 b. Oak Grove Associates purchased the property on which Oak Grove Gardens is built from the Borough. 6. Upon completion of the construction of Oak Grove Gardens, Oak Grove Associates entered into an agreement executed on July 1, 1983 with the CCHA whereby CCHA was to act as agent and manager of Oak Grove Gardens. a. As revealed by a letter obtained from Borough records dated April 11, 1980 from you to Thomas Wenger, of Alexander Properties, there was some possibility that this management arrangement with CCHA might be undertaken because you wrote to Alexander Properties with respect to this project that: "We (the Borough) are also encouraged by your plans to have the Clinton County Housing Authority serve as the management agent for the proposed building." b. The minutes of CCHA of February 13, 1981 show that CCHA Executive Director reported that CCHA would agree with Oak Grove Associates to manage Oak Grove Gardens. c. A letter from Michael Matsko, District Director of FHA, dated February 7, 1984 to Stephanie Malik of Oak Grove Associates states with respect to the project that the "Management Agreement submitted to us (FHA) by your letter of January 6, 1984 is approved by Farmers' Home Administration." d. Under this agreement CCHA receives a management fee of 3.7% of the gross revenues received from Oak Grove Gardens. e. The management agreement entered into by the CCHA and Oak Grove Associates gave virtually total control of the daily management of the project to the CCHA and page 8, Item No. 15 of this agreement states that the CCHA has the power to hire the necessary managerial and maintenance personnel for the project. 7. John Irvin, Executive Director of CCHA, had "help- wanted" notice published in the Lock Haven newspaper on September 22, 1981 to advertise for a maintenance position at the housing complex located at Lock Haven which CCHA also managed. a. One hundred thirty -eight applications were received for that position. Vito Lapriola November 28, 1984 Page 5 b. According to Irvin, applications received as a result of this advertisement were used when selecting the manager of Oak Grove Gardens. c. No other notices or advertisements for the Oak Grove Garden manager's position were placed or appeared in any newspapers or other local media. 8. You submitted an application for employment to John Irvin, Executive Director of the CCHA on September 21, 1981, one day prior to this advertisement appearing in the Lock Haven newspaper. 9. According to Irvin, all applications were reviewed by the Board of Directors of the CCHA. 10. You stated you were interviewed by CCHA Executive Director John Irvin for the manager's position of Oak Grove Gardens in late 1981. 11. At the time of your application for employment as outlined above: a. You had 25 years of experience as a welder with Piper Aircraft but had been furloughed from this job. b. You had received a certificate from Central Career Correspondence Schools on March 15, 1971 in Motel Management. c. You had received a certificate from LaSalle Extension University on December 21, 1973 in Motel /Hotel Executive Training. d. The Rural Housing Specialist of FHA indicated that FHA guidelines for hiring and determining qualifications of managers for housing complexes using FHA guidelines are very flexible. (1) Larger complexes demand a more experienced or trained manager while smaller ones, such as Oak Grove Gardens, require persons with basic maintenance and accounting skills. (2) This Specialist stated that because of the certificates listed above, in his experience, he would consider you more qualified than most managers hired for complexes similar in size to Oak Grove Gardens, but that FHA is mainly concerned that the compensation set for managers falls within mandated ranges rather than with the qualifications or experience of complex managers. Vito Lapriola Page 6 November 28, 1984 12. The minutes of CCHA for August 3, 1982 indicate that following an executive session, the Board returned and the Chairman reported that the Board agreed to hire you and your wife for the project managers of the new Borough elderly housing. 13. Your employment with the CCHA as manager of Oak Grove Gardens commenced on January 3, 1983 at an annual salary of $7,810. In addition, you and your family were provided at no cost to you, an apartment in Oak Grove Gardens, with a computed monthly rental of $505. a. Your salary was increased to $8,810 effective January 3, 1984. b. Your wife also earns $1,550 /yr. for five hours of clerical duties each week as an employee of CCHA at Oak Grove Gardens. 14. Minutes of Avis Borough Council Meetings disclose that additional housing projects have been discussed by Council. Those minutes confirm the following: a. January 12, 1983 - Stiles Williamson of the CCHA and Bill Russell, 224 Development Company, discuss with Council multi - family housing units that could be available in May or June. A site on Martin Street was looked at by Russell. - Motion Kehoe, second Brungard, to have the 224 Development Company apply for housing in the Borough's name. Motion passed unanimously. You voted for that motion. b. March 7, 1983 - You reported of a possibility that the Borough could receive 50 units of middle income housing and that the developer was looking at a site on Summit Street. You stated the units are only in the discussion stages. c. July 5, 1983 - Petition presented by Robert Saul containing 256 signatures opposing additional housing. You reported that Bill Pursell and Bill Russell representing 24 Development Company would like to meet with Council on August 8, 1983 to discuss the proposed housing project. 15. You confirmed that a closed work session of the Borough Council was held on August 8, 1983. Those attending were members of Borough Council, representatives of the developer and John Irvin and Stiles Williamson of the CCHA. Vito Lapriola Page 7 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). November 28, 1984 a. The meeting was closed to the general public. b. No decision on the housing project was made at that time and as of this date, no definite decision on the proposed additional housing project has been made. c. Even if additional housing is approved by Council, there is no guarantee that your employer, CCHA, will be chosen to manage any such housing complex. 16. There is insufficient evidence to establish that your conduct as a public official on Borough Council was influenced by an offer of future employment with regard to Oak Grove Gardens or that you solicited or accepted such employment on the understanding that your official judgment or actions would be influenced thereby. B. Discussion: As a member of Borough Council you are a public official whose conduct must conform to the provisions of the Ethics Act. The Section of the Ethics Act applicable here are Sections 3(a) and (b), reprinted below for ease of reference: Vito Lapriola Page 8 November 28, 1984 As found above, there is insufficient evidence to establish a violation of Section 3(b) of the Ethics Act. It cannot be stated that your votes or judgment with respect to the Oak Grove Garden project were influenced in violation of Section 3(b) of the Ethics Act. Likewise, there is no evidence to establish a violation of Section 3(a) of the Ethics Act. We cannot state with any degree of certainty that you used your office or votes on Council to benefit yourself or your wife or the CCHA by whom you both were after your votes and by whom you both are presently employed. These conclusions, however, do not end our review of this situation and further discussion is requi red. Specifically, even though no violation of Section 3(a) or (b) of the Ethics Act can be established, we must review your conduct in light of the provisions of Section 1 of the Ethics Act which states: Section 1. Purpose. The Legislature hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the people of the State in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. Because public confidence in government can best be sustained by assuring the people of the impartiality and honesty of public officials, this act shall be liberally construed to promote complete disclosure. 65 P.S. 401. Under Section 1 of the Ethics Act you must also strive to assure the public that the public's interests do not conflict nor appear to conflict with your personal financial interests. The timing of the Borough's approvals for the Oak Grove Garden project did pre -date your appointment as manager there. It is clear that CCHA was being considered as agent /manager for the Oak Grove Gardens project as early as April 11, 1980 (See Finding No. 6, a). You did not apply for a position with CCHA until September 21, 1981 (See Finding No. 8). But the circumstances of your application -- presented the day prior to the advertisement and for a position other than the one for which you were finally selected -- raise concerns. The Commission has stated that where a Township Supervisor contracts with a developer whose plans were subject to that Supervisor's review, the Supervisor must: Vito La pri ola November 28, 1984 Page 9 (1) not use his official position to obtain such employment; (2) not utilize confidential information gained in his official capacity to secure such employment; (3) refrain from voting on a developer's plans where he will seek, has been asked or can reasonably and legitimately anticipate being asked to perform work for the developer; (4) refrain from voting on matters related to a developer from whom he obtains work where he as Supervisor may be asked to vote on matters which arise after he has obtained such work; (5) make public his relationship with the developer or acquired with the developer and the reasons for his abstention as required by (3) and (4) immediately above. The public disclosure requirement would be met by an announcement at the Supervisors' public meeting. See Sowers, 80 -050. These concepts must be observed, if and when you are faced with future decisions with respect to projects in which you, your wife or CCHA, for example, may be interested. The circumstances under which you were first hired by CCHA make it even more imperative that you follow these guidelines in the future should such a situation arise. We note that similar advice as this has been given to you by the Borough solicitor in that he advised you should abstain from discussions or votes on any proposed housing project where the possibility, however remote, exists that you might secure or have obtained employment. We must also comment about the totality of these circumstances, however, and express our concern in this regard. It is possible that our investigation and conclusions fail to put all the pieces to this matter in their proper place. The coincidence of items such as your favoring the project, seeking and securing employment as manager and your role in the tennis court conversion, discussed below, could support a strong suspicion that the Ethics Act had been violated. We were simply in the context of our investigation, unable to secure definitive proof that no violation existed under these circumstances. We have the authority to request that other law enforcement officials review this matter and conduct further investigation as they see fit. We believe this case is one were this authority should be exercised. Vito Lapriola November 28, 1984 Page 10 C. Conclusion: We have found insufficient evidence to establish a violation of Section 3(a) or (b) of the Ethics Act. Your conduct in the future should be guided by the discussion provided above. However, because these circumstances, upon further review and investigation, as needed, could lead to the conclusion that the Ethics Act had been breached, we will make this Order and our files available to the appropriate law enforcement officials for their review and further action, as they deem appropriate. We make this referral without a recommendation for institution of any prosecution, but in an effort to insure that a thorough review of the totality of this matter is given every appropriate review and analysis. II. Allegation: That while serving as Borough Council President in Avis Borough and while employed as Manager of the Oak Grove Garden development /project described above, you directed or caused Borough employees and equipment to be used to do work at this development site or to the benefit of the development /project without proper authorization and approval from Council and without reimbursement for such work being made to the Borough in contravention of Section 3(a), (b), or 1 of the Ethics Act, 65 P.S. 403(a), (b) or 401. Examples of such work include Borough workers /trucks used to haul stone to complete an entrance to the paved parking area of this development /project and removal of stone, dirt and debris from tennis courts to facilitate /provide a parking area designated as a municipal parking lot but used primarily as a parking facility by development /project residents and visitors. A. Findings: In addition to the findings set forth above, we find further as follows: 15. A recreation area for Borough residents on property owned by the Borough was located on Short Street adjacent to Oak Grove Gardens. 16. The site plan (SK -1B) submitted by Alexander Properties at a Council meeting and approved by Council on January 16, 1981 provided for twenty -five (25) parking spaces for forty -three (43) housing units. 17. The Borough Zoning Ordinance of 1974 required that one and one -half (1 -1/2) parking spaces be provided for each housing unit. 18. At a meeting of Borough Council held on July 15, 1980 an amendment to the Zoning Ordinance of 1974, 601. C(1) was passed unanimously. That amendment required at least one -half (1/2) parking space per housing unit be required at Oak Grove Gardens. You voted in favor of the amendment. 19. Additional minutes of Borough Council meetings confirm the following regarding the recreation area /parking lot located on Short Street as set forth in No. 15, above. Vito Lapriola Page 11 November 28, 1984 a. February 7, 1983 - A discussion was held concerning utilizing the tennis courts on Short Street as a municipal parking lot. No decision was reached. b. March 7, 1983 - You asked Council's feelings on using the tennis courts on Short Street for a municipal parking lot. You stated the money could come from the CCHA to put in the parking lot. - Motion made by Councilman Wolfe to utilize the tennis court site as a municipal parking lot. Motion died for lack of a second. - Recreation Committee reports it wants to keep the area as tennis courts or for the Borough to find another site for the tennis courts. - Motion Kehoe, Second Brungard to have (3) volunteers from Council along with the Mayor to meet with the Recreation Committee and open the meeting to the public on what to do with the lots located on Short Street, Prospect Avenue and Rich Streets. Motion carried unanimously with: you voting. c. March 21, 1983 - Recreation Committee Chairman reported on the meeting between Council and the Recreation Committee and the suggestions that were discussed. Council tabled any action on the suggestions as there is no funding for such a project. d. May 2, 1983 - Motion by Wolfe, second by Sweely to utilize the tennis courts as a municipal parking lot. Motion carried with you voting with the majority. 20. The new municipal parking lot (old tennis courts) was to be and is used by residents of Oak Grove Garden residents and non - residents of this complex alike. a. Residents of Oak Grove Gardens have realized a benefit from the conversion of the tennis courts to a municipal parking lot in that the residents have used the municipal parking lot for parking of their personal vehicles on a regular basis. b. There is no evidence that the conversion of this area into a parking lot was completed solely or primarily to benefit the Oak Grove Gardens' residents or you or your employer, CCHA. Vito Lapriola Page 12 November 28, 1984 c. The discussions and evidence of the rationale for this conversion also indicate that additional parking space was needed in this area to correspond to and support events held at a baseball field adjacent to the old tennis court area. 21. With regard to this conversion you undertook actions, including: a. You directed Road Foreman Fritz Hartman to have the Borough road crew dismantle the tennis courts located adjacent to Oak Grove Gardens so that the property could be converted to a municipal parking lot and you stated you directed the work to be done following Council's decision to make the change. b. You directed Avis Borough road crew foreman Francis Hartman to repair the entranceway to the municipal parking lot (formerly tennis courts) and this entailed the hauling of stone to complete the entranceway and to make the parking lot more accessible. c. You stated the stone was dumped on property owned by Avis Borough, not Oak Grove Gardens and Foreman Fritz Hartman confirmed the Borough road crew completed the work to improve the entranceway to the municipal parking lot and that the work was done on Borough property, 22. In addition to the actions described in No. 21 above, you admitted that when the road crew was dismantling the tennis courts you asked Foreman Hartman to have the road crew remove debris from the Oak Grove Gardens property that was left behind by the project contractor and that you told Hartman to bill Oak Grove Gardens for the cost of same. a. Your boss, John Irvin, Executive Director, CCHA, confirmed that he asked you to make the request of the road crew and to bill the CCHA. b. Foreman Hartman confirmed the Borough road crew removed this debris which took no more than one hour using a Borough truck and backhoe. This work was completed in March, 1983. c. Hartman also confirmed he completed a bill, No. 0081, on March 22, 1983 for the work completed at the Oak Grove Gardens site. That bill lists the use of a Borough truck for one hour at $15 and Borough backhoe at $20. The bill was submitted to Steve Snyder, Borough Secretary, for mailing. d. The Borough Secretary provided a chart entitled "Rate of Charge for Rental of Borough Equipment" dated "1980." (1) The Borough Secretary stated the charges listed thereon have not been changed since 1980. (2) The rates listed on this chart, include "Chevy Truck ... $15 per hour" and "Backhoe ... $20 per hour." Vito Lapriola Page 13 (3) November 28, 1984 This chart also contains the annotation that "All rates are based on per hour basis, and any fraction thereof becomes the next full hour. Employee wage is included in the per hour charge." e. Snyder confirmed the bill was mailed to Oak Grove Gardens and that payment was received by Avis Borough on April 6, 1983 by check No. 148. 23. It is not unusual for and the Borough road crew will, on occasion, provide services for private citizens and groups of the Borough, using Borough employees and equipment. a. To have work completed by the road crew, private citizens will submit a requisition to the road committee. The road committee gives the requisitions to Council President who directs the road crew to complete the work requested. b. There was no requisition submitted to the road committee by Oak Grove Gardens for services by the Borough road crew described in No. 22 above. c. Both you and Borough Secretary Steve Snyder state, however, that it is not unusual for a private citizen not to submit a requisition particularly in an emergency situation or one where the road crew is working in a certain area. B. Discussion: The major allegation here was that Borough equipment and employees were used, without proper reimbursement to the Borough, to improve private property. Given our findings as set forth above, this contention cannot be sustained. Therefore, we find no violation of Section 3(a) or (b) of the Ethics Act in these circumstances. Once again, however, you should, as a public official , be sensitive to the public's perception that you might, as a public official, be using your office to further the interests of the CCHA as your employer or for the benefit of the residents of Oak Grove Gardens where you live and work. It would have been better for you, as a resident and manager of Oak Grove Gardens, to have abstained from participating in the Borough's decision to convert the tennis courts to a parking area, which because of its location and proximity, would be of obvious use to the residents of the Oak Grove Gardens complex. If a similar situation presents itself in the future, you should abstain from participating in the Borough's discussions and decisions that affect this complex so directly and obviously. C. Conclusion: There is no evidence that Section 3(a) or (b) of the Ethics Act was violated under these circumstances. You should have abstained from voting to convert these tennis courts to a parking lot under these circumstances and you are directed to observe the provisions of Section 1 of Vito Lapriola Page 14 the Ethics Act in your future conduct so as to assure the public that your financial interets as resident and manager of Oak Grove Gardens present neither a conflict nor the appearance of a conflict with the public trust. 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 you 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 be fined not more than $1,000 or imprisoned for not more than one year or both, see 65 P.S. 409(e). HBC /na Her•ert B. Conner Chairman November 28, 1984