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HomeMy WebLinkAbout391 ChehiMr. Mark S. Chehi Mayor, Lower Saucon Township R.D. #3 Bethlehem, PA 18015 Re: No. 84 -34 -C, 84 -45 -C Dear Mr. Chehi: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION August 5, 1985 Order No. 391 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 you serve as Mayor of the Council in Lower Saucon Township and as Chairman of the Township Planning Commission and this represents a conflict and that in this latter capacity have made recommendations to the township council regarding a proposed road project for an I -78 interchange within the township and subsequently, as Mayor, voted to accept this recommendation of the Planning Commission in violation of Section 3(a) and 1 of the Ethics Act, 65 P.S. 403(a) and 401. That as Mayor of Council in this township and Chairman of the Township Planning Commission you violated the Ethics Act by using these posts or confidential information gained in these posts to vote for or recommend a road project in the township for an I -78 interchange where you had an option to purchase land near the proposed interchange and where you are associated with V. R. Business Brokers who might benefit from this project. See Section 3 (a) and 1 of the Ethics Act, 65 P.S. 403(a) and 401. A. Findings: 1. You have served as a councilmember of Lower Saucon Township from July, 1983 and, as such, are subject to the provisions of the State Ethics Act (Act 170- 1978). a. You also serve as Mayor of Council. b. You were also appointed by Council to the planning commission. Mr. Mark S. Chehi Page 2 August 5, 1985 2. The township is a Home Rule Charter form of government. 3. Lower Saucon Township Council took the following actions relating to Interstate I -78. a. May 27, 1981, Council approved Resolution 10 -81 registering its opposition to current published PennDot Plans and expenditure of state and federal funds for the southern alignment studies of Interstate 78. b. February 2, 1983, Council approved Resolution 6 -83 resolving that the Lower Saucon Township Council shall petition the Northampton County Election Board to place a question on the ballot asking whether township citizens favor the upgrading of US 22 as the Interstate 78 alignment rather than construction of a southern corridor through Lower Saucon Township. This resolution was signed by Mayor Lachlan P. Peeke. c. December 21, 1983, Mr. Gebhart suggested an interchange at Interstate 78/378 to attract business to the township. You suggested the manager direct the planning commission to give careful consideration of an interchange and present its findings to council. You also suggested that a letter be written to PennDot saying the planning commission is in the process of reviewing the comprehensive plan and that an interchange is a consideration of the township. There was no second to Mr. Gebhart's motion and the motion did not carry. d. December 23, 1983, Mary Mr. Curtin, Township Manager, wrote to you, as Chairman of the Planning Commission, noting that at the December 21, 1983 meeting, the council requested the planning commission undertake a review of the feasibility of an interchange to be located on Route 378 from the proposed Route Interstate 78 Highway. e. January 18, 1984, you made a motion to do the following: 1. To direct the manager to send a notice to PennDot requesting that that agency modify its design plans to accomodate some future construction of an interchange near Route 378. 2. To direct the manager and the engineer to review current availability of funding of sewage improvement near Seidersville. 3. To direct the manager to request the JPC (Planning Commission) to begin an interchange impact study including land use consequences. 4. To direct the manager to initiate a dialogue with Bethlehem and Hellertown to discuss interchange feasibilities and impact. Mr. Mark S. Chehi Page 3 August 5, 1985 Item 1 was withdrawn until the next meeting. Items 2, 3, and 4 were voted on and passed by a 3 to 2 vote. You voted in the majority. f. February 1, 1984, council approved Resolution 7 -84 establishing an "I -78 Interchange Impact Study Committee" to determine community opinion of the proposed interchange and to investigate probable impacts. You made the motion, it was seconded by Mr. Danyluk and passed by a 3 to 2 vote; you voted with the majority. g. February 1, 1984, council also approved Resolution 6-84 which asked the Pennsylania Department of Transportation to include right -of -way design and whatever else was necessary to allow for future, although presently undesired, construction of a highway interchange at the intersection of Route 378 and the proposed Interstate 78. You made the motion, it was seconded by Mr. Danyluk and passed by a 3 to 2 vote. You voted with the majority. - On February 15, 1984, this resolution was re -voted because the February 1, 1984 vote was considered invalid. It passed by the same vote of 3 to 2 and again you voted with the majority. h. On February 15, 1984, Mr. Oren made a motion to place a non - binding referendum on the ballot stating that Lower Saucon Township would request that the Pennsylvania Department of Transportation incorporate into its final right -of -way design whatever is necessary to accomodate future but presently undesired construction of a highway interchange at the intersection of Route 378 and proposed Interstate 78 in the township. This motion was defeated 2 to 3; you voted with the majority to defeat the motion. i. March 21, 1984, on motion by you and seconded by Councilman Benner an Ad Hoc Commission of eight (8) citizens was established to work with the planning commission to identify impacts of mainline Interstate 78 and any proposed interchanges. This motion passed by a vote of 4 to 1; you voted with the majority. 4. On September 25, 1984, the Ad Hoc Commission submitted its report to the members of the Lower Saucon Planning Commission. It concluded the following: a. PennDot indicated that it would not act on council's request for an interchange at or near Black River Road nor would it be in the position to act for several years. b. The citizens of Lower Saucon Township had indicated on numerous occasions that they did not desire an interchange at Black River Road. Mr. Mark S. Chehi Page 4 August 5, 1985 c. The tax implications resulting from activity on Interstate I -78 were minimal and did not warrant consideration of an interchange for purposes of increasing tax revenue. d. That council should immediately rescind its request to PennDot for consideration of an interchange. 5. The Planning. Commission acted as follows: a. January 13, 1984, you,as chairman for the planning commission, wrote to the Lower Saucon Township Council noting the following: - The planning commission at its January 9, 1984 business meeting voted to recommend that the township act to pursue construction of an interchange at the intersection of Interstate 78 and Route 378 near Black River Road. The recommendations of the planning commission were not unanimous and the differences indicated a need for the township to plan cautiously and monitor developments in this case. b. The dissenting commissioners believe the interchange generates undesirable traffic and commercial activity. - The planning commission minutes of the meeting of Janaury 9, 1984 do not include the above information or any discussion of this interchange and report. 6. During an interview you stated the following: a. The Interstate 78 interchange issue in Lower Saucon Township has periodically surfaced over the past 10 to 15 years. b. You were aware of the intended path of the Interstate 78 southern corridor through an area close to Route 378 and Walter Avenue in the township. c. You denied that as of early December, 1983, you had confidential information concerning this issue as a result of your roles with the township's council and planning commission. d. On December 17 1983, you acquired a Land Purchase Option Agreement fran Mr. and Mrs. Robert J. Donnelly on their property at the corner of Route 378 and Walter Avenue. This was a personal venture and not as a representative of your employer at that time, V. R. Business Brokers. You took this action because you were aware that a Mini Mart in the path of Interstate 78 construction would be demolished and you considered this option as a potential site for a similar business. Mr. Mark S. Chehi Page 5 August 5, 1985 e. As Mayor you have no more voting power than any other member of Council. f. You hand carried a letter to the Donnelly's relinquishing your option on their property prior to the planning commission meeting of January 9, 1984. g. January 13, 1984, the planning commission forwarded their recommendations to council to act expeditiously to pursue construction of the Interstate 78 interchange at Black River Road. h. You initiated and sponsored Resolutions 6 -84 and 7 -84 which were the only formal actions approved by township council pertaining to the Interstate 78 interchange. 7. On January 8, 1984, you sent a letter to Mr. and Mrs. Robert J. Donnelly, R. D. #3, Bethlehem, Pennsylvania, stating that since had obtained the option to buy their property, a public issue arose involving the possibility of Lower Saucon Township applying for construction of Interstate 78 /Route 378 interchange near their property. You stated that you were unable to proceed to utilize the land purchase option without acting in conflict with your interests as an official of the township. Your letter notified them that you were relinquishing all present and future interests. 8. You were employed as a broker by V. R. Brokers from August, 1982 to January 1985 when you resigned. You were paid on a commission only basis. 9. Your option to purchase the Donnelly property was not part of your broker position with V. R. Brokers. B. Discussion: As an elected Mayor of Lower Saucon Township, you are a public official within the purview of the State Ethics Act and as such, your conduct must conform to the requirements thereof. 65 P.S. 402; Davis, 84 -012. The Ethics Act provides in part that: 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). Mr. Mark S. Chehi Page 6 August 5, 1985 In the instant situation,you were the Mayor of the Township as well the Chairman of the Planning Commission. You were in a position not only to obtain information but to vote on key matters relating to the proposed interstate project and the township's position thereon. Additionally, as a high township official, you were in a position to influence others in relation to this matter. Your acquisition of an option to purchase the property involved herein could have resulted in a violation of the Ethics Act. You did, however, divest yourself of your interest in this property prior to taking any overt action on the interstate proposal. As a result, you did not obtain any financial gain through your public office and did not violate Section 3(a) of the Ethics Act. We note that the fact that you divested yourself of your interest in the property and the timing thereof were paramount to this decision. Additonally, we take the opportunity to note that Section 1 of the Ethics Act sets forth the underlying intent and purpose of the Act. Specifically, the financial interests of a public official must not be in conflict with or appear to be in conflict with the public trust. Your acquisition of the property option in December 1983, occurred at a time when various official actions were being considered in relation to the proposal. Such action by a public official, such as yourself, as a necessity result in certain public perceptions. These public perceptions were of primary concern in the promulgation of the Ethics Act. This is especially so, where you are also on the planning commission, an important body, in such a situation. We suggest that in the future you be more aware of such public perceptions and conform your conduct in accordance therewith. Finally, an issue has been raised as to whether there is a conflict of interest in serving as both mayor and a member of the planning commision. Initially, it should be noted that a reading of the Pennsylvania Municipalities Planning Code, contemplates the possible service on the planning commission by local officials. 53 P.S. §10205. Additionally, there is no provision of the Ethic Act that would indicate that these positions present an inherent incompatibility. c.f. Nelson, 85 -009. There are, however, certain circumstances which could result in a conflict of interest. This is especially so in situations where you, as mayor, may be called upon to vote or act upon a matter in which you participated as a member of the planning commission. We do not find that such a conflict exists in the current situation. The only two resolutions upon which you acted as Mayor were No. 6 -84 and No. 7 -84. Neither were matters directly relating to the planning commission or any actions by that Commission. You are advised that in the future you may want to seek the advice of this Commission as provided for in the Ethics Act, prior to acting in a matter where such a question may exist. Mr. Mark S. Chehi Page 7 C. Conclusion: Based upon the facts as set forth above, we do not believe that you have violated Section 3(a) of the Ethics Act, as you did not realize any financial gain from the land option purchase and you have released your interest in relation thereto. You should, however be mindful of public perceptions as outlined above. 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). JJC /sfb By the Commission, Herbert B. Conner Chai man August 5, 1985