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HomeMy WebLinkAbout491-R EckroteMs. Gina L. Eckrote R.D. #2, Box 270A Drums, PA 18222 Re: 85 -130 -C Dear Ms. Eckrote: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 491 -R DECIDEDJAN 3 0 1987 MAILED 7 = 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. Hearing on the matter was conducted on September 10, 1986, at which time relevant testimony, evidence and argument was presented. The individual allegations, conclusions and findings on which those conclusions are based are as follows: I. Allegation: That you, a member of the Butler Township Zoning Hearing Board and a candidate in the 1985 elections for the office of Supervisor in Butler Township, violated Section 3(a) of the Ethics Act which prohibits a public employee's or public official's use of office or confidential information gained through that office to obtain financial gain and 3(d) which prohibits conflicts of interest, when you initiated and participated in a zoning hearing board action against one of the other candidates for the office of Butler Township Supervisor. A. Findings: 1. You have served on the Butler Township Zoning and Hearing Board since January, 1984. a. You were a Democratic candidate for the position of township supervisor during the May, 1985 primary and November, 1985 general elections. b. Richard K. Thomas was an incumbent township supervisor and was seeking re- election to said position on the Republican ticket. Ms. Gina L. Eckrote Page 2 2. In support of his re- election bid, Mr. Thomas had constructed and displayed throughout Butler Township, signs that were four -by -eight feet in dimension. 3. On May 13, 1985, at a meeting of the Butler Township Board of Supervisors, you advised Mr. Thomas that you believed that he was in violation of the township zoning ordinance in that his signs were oversized. a. You made this statement during the portion'of the meeting reserved for citizen participation. b. You also stated, at that time that the matter had been reviewed with the Zoning Code Officer and that a complaint was going to be filed against him the next day. 4. On May 14, 1985, you filed a written complaint with Timothy G. Ashman, Butler Township Zoning Officer, which stated as follows: COMPLAINT "I, Gina L. Eckrote, wish to make a formal complaint concerning the "Temporary" campaign signs that were erected for or by Richard K. Thomas. According to the zoning ordinance, "Temporary" signs can be erected in any area throughout the township, but can be only six (6) square feet in dimension. Mr. Thomas's "Temporary" campaign signs are thirty -two (4 x 8) square feet in dimension, therefore, I feel that Mr. Thomas is in violation of the Zoning Code, and should be cited as such." Gina L. Eckrote, Complainant May 14, 1985 5. Mr. Ashman submitted a sworn affidavit to the State Ethics Commission confirming that you filed the above complaint with him. 6. Mr. Ashman further attested as follows: a. He contacted Mr. Thomas and advised him of the complaint. Ms. Gina L. Eckrote Page 3 b. Mr. Thomas stated that he did not believe the signs were in violation of the zoning ordinance as his signs were political in nature and not covered by the ordinance. c. Mr. Ashman reviewed the Zoning Code and found no mention of political signs and no definition of temporary signs. d. Mr. Ashman was not able to interpret the ordinance and felt that it would be necessary to ask the township zoning hearing board for an interpretation of the code. e. Mr. Ashman stated that on May 20, 1985, he was instructed by Township Supervisor, Ransom Young, to post violation stickers on Mr. Thomas' signs; which was done. f. Mr. Ashman received an opinion from the township zoning hearing board that the signs were temporary signs and within the provisions of the township zoning code. 7. In November of 1984, the Butler Township Board of Supervisors had enacted a comprehensive zoning ordinance. a. The ordinance provided, in part, for the creation of a zoning hearing board with the following powers: Powers: The Zoning Hearing Board has the following powers: Interpretation: To interpret any provision of this Ordinance including zone boundaries. Special Exceptions: To hear and decide special exceptions upon which the Board is required to pass under this Ordinance as per Section 703. Appeals: To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the Zoning Officer in the enforcement or interpretation of this Ordinance. Variances: To authorize, upon application, in specific cases a variance from the terms of this Ordinance as per Section 702. Rehearings: To grant the rehearing of a case if it appears there has been a substantial change in the facts as evidence of the case as presented at the initial hearing. Ms. Gina L. Eckrote Page 4 Challenge to the Validity of the Ordinane or Map: The board shall hear challenges to the validity of the Zoning Ordinance or Map except as indicated in the Pennsylvania Municipalities Planning Code Sections 1003 and 1004 (1)(b). In all such challenges, the Board shall decide all contested questions and shall make findings on all relevant issues of fact . which shall become part of the record on appeal to the court. Unified Appeals: Where the Board has jurisdiction over a zoning matter, the Board shall also hear all appeals which an'applicant may elect to bring before it with respect to any Township Ordinance or requirement pertaining to the same development plan or development. In any such case, the Board shall have no power to pass upon the nonzoning issues, but shall take evidence and make a record thereon as provided in Section 701, At the conclusion of the hearing, the Board shall make findings on all relevant issues of fact which shall become part of the record on appeal to court. In exercising the powers above, the Board, in conformity . wi th the provisions of this Ordinance, may reverse, affirm, or modify the order, requirement, decision, or determination appealed from or requested, and may make any order, requirement, decision or determination as ought to be made. 8. The zoning ordinance also provides for restictions - for the location and size of various signs that are permitted to be posted within the township. 9. The minutes of the Butler Township Zoning Hearing Board meeting. of May 20, 1985, indicate as follows: ZONING OFFICER REPORT: Compliant of Gina L. Eckrote against Richard K. Thomas regarding temporary campaign signs erected for or by Mr. Thomas Eckrote feels Thomas exceeded the maximum dimensions of the sign as regulated by the Butler Township Zoning Ordinance. Eckrote read a letter sent to Ashman from Falvello regarding the signs, letter in part stated that signs have a maximum size of six (6) square feet, solicitor feels if the signs contains purely political information, the sign in his interpretation is temporary, signs also that exceed the six (6) square feet and do not have a special exception are in violation of the zoning ordinance. Eckrote also read her complaint in full. Martini asked Ashman if he cited the signs and Ashman responded yes, but no citations were issued. Ashman was requesting if the board or anyone else had any opinion on this. Eckrote asked Ashman for the record as to when he notified Mr. Thomas the he was in violation of the signs, because it was not put down on the report. Ms. Gina L. Eckrote Page 5 Ashman replied, May 15th and that he also gave Thomas a copy of the complaint. Martini asked Ashman if he was going to issue any citations that are warranted and Ashman said yes, but he was requesting the opinion of the board on the citations and Martini responded that he was the Zoning Officer and did he feel they were necessary, and Ashman responded that he was not sure at this point. After a very lengthy discussion solicitor stated that if there was a need for an interpretation, then the zoning board would make that interpretation regarding (Section 301.1 of the Zoning Ordinance). Martini for the record: Type of sign: Temporary, where permitted: any zone, Maximum size: six (6) square feet special exception needed if a larger sign is desired, Section 301.6, Temporary signs: a temporary sign such as those advertising activities of churches, and non - profit organizations may be erected for a period not exceeding sixty (60) days. B. A temporary sign for a construction project may be erected and maintained for as long as the project is under construction. Mr. Casole had questioned several signs in the township as to whether they had permits for them. Solicitor stated that different signs come under different categories for their areas. In Ashman's report, Mr. Thomas stated that he did not believe his signs were in violation of the Zoning Ordinance and he would not remove the signs. Martini asked who was the owner of the signs, there was no response. Ashman said that Mr. Thomas was owner at this point in time. Martini said that just because his name was on did not mean that he was the owner. Eckrote said that according to Section 605 under penalties (see zoning ordinance), this explained ownership. Motion made by Young that signs that were up were illegal because they were oversized and our zoning ordinance clearly stated that a temporary sign should not be more than six (6) square feet. Seconded by Eckrote. Roll Call Vote: Martini - abstain, Young -yes, Eckrote -yes. At this point, Mr. Casole lodged an objection against the vote. His reason being he felt that there was a conflict of interest with Eckrote. Eckrote asked how he got a conflict of interest .and Casole stated that he would have his Attorney explain that. Majority has determined that they were temporary signs and Tim would have to take whatever steps necessary to terminate the violation. Falvello for the record: Our practice has been to give whatever the violator or alleged violator is a reasonable opportunity for compliance and if after reasonable time for compliance if the violation does not cease, then Tim's only recourse would be to file an official complaint with Magistrate Balliet, and let the matter go there. Mr. Young for the record: He felt that the police should have supported Mr. Ashman in the case. Tim responded that he was transported by the Chief of Police. Casole stated that we will make an official complaint on the forty -two (42) signs on the ball field. Motion made by Martini and seconded by Eckrote to accept the Zoning Officer's report. Rol Call Vote: Martini -yes, Young -yes, Eckrote -yes. Ms. Gina L. Eckrote Page 6 10. Mr. Thomas removed his signs in accordance with the actions of the Zoning Hearing Board. 11. In a letter dated August 26 1985 to the State Ethics Commission, you stated as follows: a. Several residents had complained to you about the oversized signs. b. You investigated the matter and determined that the signs were in violation of the zoning ordinance. c. You verbally reported this to the Zoning Officer. d. The Zoning Officer informed you that a formal complaint must be filed in order for him to act on the matter. e. The residents felt that you should make the complaint. f. As a complainant, not a board member, you retained private counsel to represent you at the May 20, 1985 meeting of the zoning hearing board. g. h. Your counsel advised that you could sit in judgment of this matter. i. Board memh", Jac'; Martini, abstained from voting at the May 20, 1985 meeting because he was the employer of Mr. Thomas. You verified that you forwarded this letter to the State Ethics Commisison in testimony before the Commission. 12. The Township Zoning Officer is appointed by and responsible to the township board of supervisors. 3 • The solicitor for the board thought you would - have a conflict of interest by acting as a board member on a matter in which you had filed a compliant. 13. A letter which you have submitted dated May 20, 1985, from Timothy Ashman to the Butler Township Zoning Hearing Board states, in part, as follows: On May 20, 1985, I did receive instruction from Supervisor Ransom Young that as per instruction from Zoning Hearing Board Members, Gina Eckrote and Clyde Young that Richard Thomas' political signs were in violation of the Butler Township Zoning Ordinance. Ms. Gina L. Eckrote Page 7 14. Ransom Young, in testimony before the State Ethics Commission, denied that he received any instructions from Gina Eckrote or Clyde Young. 15. Richard Thomas testified that he had requested the zoning review board to review Mr. Ashman's decision to cite his signs. 16. The purpose of the May 20, 1985 meeting of the Zoning Hearing Board was to obtain an interpretation regarding whether "political signs" were to be considered "temporary signs" and, thus, within the parameters of the zoning ordinance size restrictions. 17. You testified before the State Ethics Commission as follows: a. David Cook, a township resident, complained to you about the oversized signs. b. You did not feel as though Mr. Thomas was your opponent in the election in that you were running on different political party tickets. c. You have never previously filed a written complaint with the township zoning officer. d. Prior to the meeting of May 20, 1985, you requested that the zoning hearing board solicitor, Conrod Falvello, issue a legal opinion to the zoning officer regarding the issue of whether political signs were temporary signs. e. You testified that this is a function of the Board's counsel, and not the solicitor for the supervisors. f. The boards legal counsel, Mr. Favello, believed that you might have a conflict of interest regarding the May 20,,1985 meeting. g. You testified that "I seconded the motion of Mr. Young that the signs were, according to our zoning ordinance as was stated were, that they were oversized and our ordinance clearly states Temporary signs should not be more than six feet. I was voting on the fact that Mr. Thomas violated the ordinance rule as stated in the book.... 18. Ransom Young, a township supervisor, testified before the State Ethics Commission and also submitted a sworn affidavit in support of your position. Ms. Gina L. Eckrote Page 8 a. In his affidavit he acknowledges that the zoning board had met to decide the "validity of the ordinance and to find him (Thomas) in violation of the ordinance. 19. Clyde Young, a member of the Zoning Hearing board, submitted a sworn affidavit to the State Ethics Commission in support of your position. a. Mr. Young acknowledges in this affidavit that the Board had made a decision at the May 20, 1985 meeting. 20. On or about June 11, 1985, Richard Thomas applied for permission to post 50 temporary political signs 4 x 9 in size. a. This application was filed with the zoning officer. b. The application was disapproved. 21. On June 24, 1985, a hearing was held before the zoning hearing board regarding the above application. a. You were present along with board member Clyde Young. u. You advised Mr. Thomas at this hearing that he would have to provide a genaral description of the anticipated locations of the signs. c. The hearing was, therefore, continued. 22. Mr. Thomas had lost the primary election but was running as a write -in during the November general election. 23. At the July 29, 1985 continuance of the hearing, Mr. Thomas objected to your participation in the matter. a, Mr. Thomas argued that he did not need to produce a specific list of locations and that he had already provided a general description as originally requested. b. He argued that you had originally complained about his previous signs and were, thus, in a conflict situation. c. You reasserted your belief that there was no conflict of interest and you voted to deny his application. Ms. Gina L. Eckrote Page 9 24. The zoning haring board minutes for the July 29, 1985 meeting reflect that further discussion was held on this matter. a. Board member Martini believed that Mr. Thomas had complied with the Board solicitor's request to provide a general description of the locations. The other board members, including you, wanted a more detailed description. 25. The August 26, 1985 minutes of the Zoning Hearing Board reflect as follows: UNFINISHED BUSINESS: Richard K. Thomas Hearing. Young stated that Thomas was not present. Young rescinded his motion made at Thomas' hearing not to grant his Special Exception and Eckrote rescinded her second on Young's motion. Motion made by Young to grant Thomas' Special Exception to erect temporary signs with the following stipulations: (1) a list of property owners be provided one week prior to October 1, 1985 which is September 24, 1985 to the Zoning Officer, so as the Zoning Officer could be present at the time of erection of the signs. (2) the signs were to be put up no earlier than October 1, 1985 and to be taken down seven days after election. Motion seconded by Eckrote. ROLL CALL: Young -yes, Eckrote -yes. B. Discussion: Beginning in January, 1984, you served as a member of the Butler Township Zoning Hearing Board. This board was created by the Butler Township Zoning Ordinance of 1984. That ordinance sets forth the specific powers and duties of the zoning hearing board. Included within the functions of that governmental body, are the following: The interpreting provisions of the zoning ordinance: 1. Hearing and deciding special exceptions upon which the board is required to pass. 2. Hearing and deciding appeals where it is alleged that there is an error in any order requirement, decision or termination of the zoning officer. 3. Authorization in specific cases of variances from the zoning ordinance. 4. Variances from the zoning ordinance. Granting rehearings in cases where such is appropriate. Ms. Gina L. Eckrote Page 10 5. Hearing challenges to the validity of the zoning ordinance. The Board may also make any order or decision in exercising these powers. The above clearly sets forth the various duties and powers of the zoning hearing board. Because these powers are more than mere advisory in nature and because it appears from the above that the zoning hearing hoard, in fact, has the power to exercise the authority of the political subdivision in which it is located, individuals who serve as officials on this board are to be considered public officials within the purview of the State Ethics Act. 65 P.S. §402; Snider v. Thornburgh, 469 Pa. 159, 436 A.2d 593 (1981); Dice, 85 -021. Therefore, as a member of the Butler Township Zoning Board, you are clearly a public official as that term is defined in the State Ethics Act and the regulations of the State Ethics Commission. As such, your conduct as a public official is subject to the provisions of the State Ethics Act. In the instant situation, we must review your conduct under two specific sections of the State Ethics Act. Section 3(a) of that law provides as follows: 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 F.S. §403(a). In addition to the foregoing, we are required to review your conduct under Section 403(d) of the State Ethics Act. 65 P.S. §403(d). Within the provision of that particular aspect of the law, this commission may address areas of possible conflict. Generally, such conflicts exist where the public official attempts to serve one or more interests that are adverse. Alfano, 80 -007; Nelson, 85 -008. Within this provision of law as well as within Section 3(a) of the State Ethics Act, we have, on a number of ocassions, determined that puhlic officials may not participate or otherwise vote in matters in which they have a personal or pecuniary interest. Sowers, 80 -050. In this respect, we have determined that puhlic officials and employees may not, for example, vote or review applications which they have submitted on their own behalf for review by the governmental body with which they are associated. See Koutz, 85 -507; Dredge, 83 -545. Ms. Gina L. Eckrote Page 11 In the instant situation, you have asserted two main factors in support of your position. You stand firm in your belief that no conflict of interests existed in your actions as a member of the township zoning hearing board. In this respect, you have asserted that you were not the political opponent of Mr. Thomas. You have indicated that you were running on a different party ticket than Mr. Thomas and, therefore, could not be considered his opponent. Not only did you make this assertion in relation to the primary election contest in May, 1985, but you continued to assert that you were not his opponent during the November general election at which time Mr. Thomas ran as a write -in candidate. In addition to the foregoing, you assert that the township zoning hearing board took no official action at the May 25, 1985 meeting. In this respect, you have asserted that because this was not an official "hearing" of the board, that the board did not perform any action that it was authorized to perform. These are the only arguments that you have presented in relation to the instant situation. We believe, however, that both of these arguments must fail. And we do believe that a conflict of interest, in fact, was occasioned by your actions as a zoning hearing board member. In relation to the May 20, 1985 meeting, there is no doubt that the township zoning hearing board was performing an official function in relation to Mr. Thomas' political sign. Specifically, the township zoning officer received from you a complaint in writing challenging Mr. Thomas' signs under the terms of the zoning ordinance. You had informed Mr. Thomas as a citizen during a township supervisors' meeting on May 13, 1985, that his signs were oversized and that a complaint was going to be filed against him. Thereafter, you filed that complaint. Mr. Ashman, the zoning officer, after receipt of the complaint, questioned Mr. Thomas in relation thereto. Mr. Thomas asserted that the signs were political signs, not temporary signs and, therefore, not covered by the zoning ordinance. Upon a review of the zoning ordinance, Mr. Ashman determined that he could not make the initial determination as to whether the signs were, in fact, covered by the ordinance. As such, he asked the township zoning hearing board for their opinion and interpretation of this provision of the ordinance. Specifically, in accordance with the terms of the township zoning ordinance, the board has the power to interpret any provision of that ordinance and make any order or decision in relation thereto. In this respect, we believe that the township zoning hearing board was asked to specifically interpret whether political signs were within the definition of temporary signs. Thus, they were performing an official township function. This decision was being made specifically in relation to a matter which had originated from you as a complainant. Thus, in reality, you were performing your official functions as a zoning hearing board member in relation to a matter that had originated as a Ms. Gina L. Eckrote Page 12 result of you filing a complaint with the zoning officer who then had to proceed to the board for the appropriate interpretations. Thus, you were performing your functions as a zoning board member on a matter in which you had an interest. This occasioned a conflict of interest on your part within the purview of Section 403(d) of the Ethics Act. In addition to the foregoing, it should be noted that while you have contested the fact that the board made any decision during the May 20th meeting, individuals who testified and submitted affidavits before the Commission consistently referred to the May 20th action as a board decision. They also testified that the result of the decision was to find Mr. Thomas in violation of the zoning ordinance and to require to take his signs down. You confirmed this in your testimony (Finding 17g). The fact that the individuals involved in this matter viewed their own actions as being official in nature, heightens the fact that the board had taken or at least believed they were taking official action in relation to this matter. We, thus, believe that a conflict of interest in violation of Section 403(d) of the law has resulted from your actions. In relation to your second argument, we note that the complaint you had filed with the zoning officer was in relation to campaign signs of the incumbent township supervisor who was seeking re- election in the May, 1985 primary election. You were also a candidate during that election. You were running for the same office as the individual against whom you filed the complaint. There is no doubt, however, that Mr. Thomas was the individual who must be defeated in order for you to ascend to that position in the township. We, thus, believe that the conflict of interest was occasioned when you participated in the May 20, 1985 township zoning hearing board actions relating to the campaign signs of the individual who was running for township supervisor, the same position for which you are a candidate. Assuming, however, that we were to consider your argument valid and that you were not running against Mr. Thomas during the 1985 primary election, there is no doubt that you were running directly against Mr. Thomas during the November election. Mr. Thomas was indeed a candidate for township supervisor during that general election. You were your party nominee.for that position. As such, Mr. Thomas was one of the opponents against whom you were running for the position of township supervisor. Regardless of this factor, however, you continued to participate in matters relating to Mr. Thomas' signs. Your participation was clearly evidenced during the June and July hearings regarding Mr. Thomas' application to post oversized signs. You continually requested from Mr. Thomas, a list of specific property owners that were going to permit Mr. Thomas to post his signs. While we are not determining whether such is appropriate in order to grant that exception, we do note that your participation in this matter to any degree occasioned the conflict of interest as you were participating in a matter relating to the posting of election campaign signs that related to your election opponent. As such, a conflict of Ms. Gina L. Eckrote Page 13 interest was occasioned. On one hand, you are required to serve the township as a zoning hearing board member and perform your functions in relation thereto objectively. However, on the other hand, you were performing functions specifically relating to campaign conduct as that conduct impacted upon your election opponent. In this respect, it is difficult to perceive how you would not be serving to some degree, your own in- terest. Clearly, your interest in ruling upon the election signs of your opponent could have adversely affected the conduct of the campaign. In this respect, regardless of what decision you reached, we believe that a conflict of interest was occasioned. We, thus, believe that you violated the provisions of Section 403(d) of the State Ethics Act. After reviewing the instant situation on the whole, however, we do not believe that this matter should be referred to any other law enforcement officer. Specifically, in relation to the primary election, Mr. Thomas had the benefit of signs being posted until the day of election. In relation to the second matter, Mr. Thomas was eventually granted his special exception and was allowed to post signs. We, thus, believe that while you violated the State Ethics Act, such was not of the magnitude that requires any further action by this Commission or by any other law enforcement agency. We also do not believe that you received any financial gain as a result. We are unable to complete this matter, however, without indicating our strong dissatisfaction with your activities as exhibited by the facts. As a public official you are obliged to uphold the public trust. Your activities as a public official are to be in accord with the public trust. The interests of the public official must not be in conflict with that public trust. In the instant situation, we have no difficulty in finding that you were acting solely in your own personal interest in this matter. You engaged in a substantial conflict of interest when you acted as member of the zoning hearing board and interpreted provisions of the zoning ordinance in relation to a matter that originated from a complaint which you filed with the zoning officer. This conflict of interest was further heightened when you, as a member of the zoning hearing board, had participated in hearings relating to the campaign signs of your election opponent. As such, we believe that your activities constituted a violation of the State Ethics Act. We do not believe this type of activity should be engaged in by a public official. This order should be construed as an official reprimand of your conduct as a public official. C. Conclusion: You violated Section 403(d) of the State Ethics Act when you, as a zoning hearing board member, participated in that governmental body's interpretation of provisions of the zoning ordinance, specifically, in relation to a matter that had been brought to the zoning hearing hoard as a GIs. Gina L. Eckrote Page 14 result of a complaint that you had filed with the zoning hearing board. You also violated the provisions of the State Ethics Act when you, as a zoning hearing board member, participated in a hearing regarding a special exception to the zoning ordinances that had been requested for the posting of political signs by your election opponent. While we strongly believe that your conduct was not in accord with the provisions of the State Ethics Act and must be avoided in the future, we will take no further action at this time in relation to this matter. 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 5 business days after service (defined as mailing). 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). By the Commission, G. Sieber Pancoast Chairman