HomeMy WebLinkAbout546 MillerMr. Paul. Miller
c/o Donald'H. Yost, Esquire
Blakey, Yost, Bupp & Kilgore
42 East King Street
York, PA 17401
Re: 85 -13 -C, 85 -14 -C
Dear Mr. Miller:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
Order No. 546
DECIDEDDEC 10 1986
MAILEDJAN F1Zq$7
The 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, Hopewell Township Supervisor, 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 by attempting to have favorable action taken by the township
supervisors on a petition to rezone your property.
A. Findings:
1. You have served as a supervisor in Hopewell Township from January, 1.982 to
the present.
a. You have been chairman of the board of supervisors for four of the
five years in which you have served.
2. Minutes of the township supervisor's meeting of September 6, 1984, reflect
that you petitioned to have a tract of land in the vicinity of the
intersection of Plank and Sawmill Roads rezoned from agricultural to
residential designation. This petition involved the rezoning of 150 acres of
which you owned about 30 acres.
a. The township solicitor forwarded copies of the petition to the York
County and the Hopewell Township Planning Commissions for review.
3. Minutes of the township supervisor meeting of December 20, 1984 reflect
that your petition was heard at this meeting.
Mr. Paul Miller
Page 2
a. You excused yourself from the proceedings prior to your petition
being heard.
b. A public hearing was previously held on this petition by the
township.
c. The York County Planning Commission on November 15, 1984 and the
Hopewell Township Planning Commission on November 20, 1984 had both
recommended the rejection of your petition.
d. The comments of b- th planning commissions were read to board
members.
e. Supervisor Winemiller motioned to reject the petition, seconded by
supervisor Gavic and the motion carried.
f. You then rejoined the board after this motion.
4. Records of the Local Government Advisory Committee of York County reflect
that this committee approved your request to amend the township zoning
ordinance by rezoning the tract at Plank and Sawmill Roads. This occurred on
November 8, 1984.
a. You stated that the township solicitor orally advised you that your
petition seemed to be within the parameters of allowed zoning.
b. A motion was carried to approve this request.
5. The York County Planning Commission reviewed your rezoning proposal and
denied said proposal.
6. One Township Supervisor, Ms. Davis, alleges that you contacted her and
another supervisor to influence their decision in relation to your rezoning
application.
a. Ms. Davis alleged that you "seemed" to be asking her to act favorably
on your petition.
b. The other township supervisor denied that you ever attempted to
influence him in relation to this matter.
7. You averred that you initiated a telephone conversation with Supervisor
Davis to discuss positions on the petition taken by the Local Government
Advisory Committee of York County and the township solicitor.
Mr. Paul Miller
Page 3
a. You stated that Davis purposely misconstrued what you said and
changed the true intent of your conversation.
b. You denied that you attempted to influence Davis to vote for your
rezoning petition.
c. You denied that you attempted to influence Supervisor Winemiller or
any township planning commission members to vote for your rezoning
petition.
8. Several members of the York County Planning Commission were questioned in
order to determine if attempts were made to use your position to influence
their decision.
a. One member of the Commission confirmed that you contacted him to
discuss your petition in a general manner. This individual indicated
that no attempt was made to influence him as to how he should act.
b. Another Commission member denied that you ever contacted him.
8. Discussion: As a township supervisor, you are clearly a public official
as that term is defined in the State Ethics Act. 65 P.S. §402. As such, your
conduct must conform to the requirements of that law. Sowers, 80 -050; Welz,
86 -001. Generally, the Ethics Act 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 P.S. §403(a).
Within the above provision of law, you, as a public official, may not use
your position or any confidential information obtained through your position
in order to obtain financial gain for yourself. This Commission has, in the
past, reviewed situations wherein public officials have submitted to their own
governmental body applications for various types of projects in which they
have been interested. This Commission has determined, in such situations,
that the Ethics Act presents no per se prohibition on a public official
submitting to his own governmental body applications relating to projects in
which that individual is involved. See Simmons, 79 -056. The Commission,
however, has determined that the public official could not participate, to any
Mr. Paul Miller
Page 4
degree, in the governmental body's, discussions and decisions regarding such
applications. Based upon that rationale and Section 3(a) of the State Ethics
Act as set forth above, this Commission has determined that a zoning officer
who is also a developer could not issue permits to himself. Simmons, 79 -056.
The Comission has further noted that a public official may not inspect,
approve or otherwise participate in the consideration of work that he
completed as a private professional. Sowers, 80 -050. In the instant
situation, a review of the township minutes clearly indicates that you did not
participate in the township's decision regarding your project. A further
review of the situation indicates that while one township supervisor has
stated that ''cu called that supervisor in an attempt to influence her, a
second township supervisor indicated that no such attempt was made.
Additionally, the township supervisor who alleged that such contact -was made,
indicated that it "seemed" as though you were trying to influence her While
you do admit that you contacted this one supervisor, you denied attempting to
use your position to influence that supervisor's decision in relation to your
project. In addition thereto, members of the planning commission which also
reviewed your project and rejected that project indicated that you either did
not attempt to contact them or that you did contact them but that you were not
attempting to pressure them into making a particular decision. Based upon the
foregoing, we do not believe that there is sufficient evidence indicating that
you used your public position or any confidential information obtained therein
in order to obtain a financial gain for yourself. As such, we do not beleive
that there was a violation of the State Ethics Act in relation to this
matter.
C. Conclusion: We do not believe that there is sufficient information to
indicate that you violated the State Ethics Act in relation to a petition for
rezoning that was submitted to the township board of supervisors on which you
served where you abstained from participating in that matter.
II. Allegation: That you, Hopewell Township Supervisor, violated Section
5(b)(5) of the Ethics Act which requires the reporting of the name and address
of any person who i the direct or indirect source of income totalling in the
aggregate of $500 or more by failing to report Hopewell Township as a source
of income.
9. Finding #1 is incorporated herein by reference.
10. Statements of Financial Interests which you filed show the following:
a. Statement dated May 1, 1986.
1. Direct or indirect sources of income: From personal business
listed above.
Mr. Paul Miller
Page 5
2. You failed to list Hopewell Township as a source of income in
excess of $500 for calendar year 1985.
3. You earned $616.40 of township funds during calendar year 1985.
b. Statement dated March 8, 1983.
1. Direct or indirect sources of income: No information was listed
under this caption.
2. Under other captions in this Statement, you did indicate you were
a township supervisor and that your occupations were a contractor
and manufacturer house dealer.
c. Search of township records failed to locate a Statement of Financial
Interests which should have been filed by you in 1982.
1. Search of township records disclosed only one 1982 Statement on
file for any official.
2. Inquiry indicated that the other Statements have been misplaced.
B. Discussion: The State Ethics Act further provides that each public
official must file a Statement of Financial Interests by May 1 of every year
in which they serve. See, 65 P.S. §404(a). Included in the Statement of
Financial Interests must be the name and address of any sources of income in
excess of $500 in a given year. 65 P.S. §405(b)(5). In the instant
situation, a review of the township records indicate that there was no
Statement of Financial Interests on file for you for the year 1982. In
addition, in relation to your Statement of Financial Interests for the year
1985 which was filed on May 1, 1986, you failed to list Hopewell Township as a
source of income in excess of $500 for that year although you earned $616.40.
Additionally, in relation to your Statement on file for calendar year 1982
which was filed March 8, 1983, no information was listed under the caption
"direct or indirect sources of income" although your occupations were listed
as "contractor and manufacturer house dealer." A review of the deficiencies
in your 1983 and 1986 Statements clearly indicate that your Statements of
Financial Interests were not complete. In relation to the 1986 Statement,
however, while you did earn in excess of $500 from the township, we believe
that this defect is merely technical in nature. Your employment by the
township was known by the public, generally, and the failure to list that
income does not appear to have been motivated by any intent to avoid the
filing requirement. See, Cumberledge, 531.
Mr. Paul Miller
Page 6
In addition to the Statement for 1982, which would have covered calendar
year 1981 which was not on file with the township, further investigation
reveals that the Statements of Financial Interests for that year may have been
misplaced by a township employee. As such we do not believe that sufficient
evidence is available to indicate that you actually failed to file that
Statement. Finally, in relation to your 1983 Statement, no information was
listed under the caption direct o1 indirect sources of income." This is a
technical violation of the State Ethics Act. There is no indication, however,
that your failure to list any source of income was intentional in nature or in
an attempt to hide a conflict of interest. We do, however, believe that the
errors in the filing, as noted above, should be corrected through an amended
filing.
1. We believe that you must amend your Staterneni: for calendar year
1986 by the filing of a Statement of Financial Interests
listing the township as a source of income.
2. You must file a Statement of Financial Interests amending your 1983
Statement which specifically lists the sources of income in excess of
$500 for calendar year 1982.
3. You must file a Statement of Financial Interests for the year in
which no filing was available, 1982. Said Statement should include
financial interests for calendar year 1.981 and should be filed within
30 days of the date of this Order with the State Ethics Commission.
C. Conclusion: Your failure to list a source of income in excess of $500 for
calendar year 1983 and your failure to list the township as a direct source of
income in 1986, were technical violations of the State Ethics Act. While no
filing was on record for 1982, such may be the result of the misplacement of
all such Statements by a township employee. You must, within 30 days of the
date of this Order, make appropriate amended filings as noted above. Upon the
receipt of said filings, this Commission will take no further action in this
matter and our files will be closed.in relation thereto.
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.
Mr. Paul Miller
Page 7
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, ,}
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G. Sieber Pancoast
Chairman