HomeMy WebLinkAbout692 GraeberMr. Richard F. Graeber
R.D. 1 Shine Hill Road
Henryville, PA 18332
Re: 87 -125 -C
Dear Mr. Graeber:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
ORDER NO. 692
DATE DECIDED: April 19. 1989
DATE MAILED: April 28. 1989
The State Ethics Commission received a complaint regarding you
and a possible violation of the State Ethics Act, No. 170 of 1978, 65
P.S. 401 et. seq. You were notified in writing as to the
commencement of the investigation and as to the specific
allegation(s). The investigation has now been completed and a
Findings Report was issued to you which constituted the Complaint by
the Investigation Division of the State Ethics Commission. An Answer
was filed and a hearing was waived. The record is now completed.
This Order of the Commission is hereby issued which sets forth the
individual allegations, findings, discussion and conclusion as
follows:
I. Allegation: That you, a former Sewage Enforcement Officer and
Zoning Officer for Pocono Township, violated Section 3(e) of the
Ethics Act (Act 170 of 1978), which stated that no former official or
public employee shall represent a person, with or without
compensation, on any matter before the governmental body with which he
has been associated for one year after he leaves that body, in that
you have represented clients before the Pocono Township Board of
Supervisors within one year of leaving your office:
Section 3. Restricted activities.
(e) No former official or public employee shall
represent a person, with or without compensation,
on any matter before the governmental body with
which he has been associated for one year after he
leaves that body. 65 P.S. S403.
Mr. Richard F. Graeber
Page 2
A. Findings:
1. You served as the Sewage Enforcement Officer and Zoning Officer
for Pocono Township, Monroe County, Pennsylvania.
a. You served in the position of Sewage Enforcement Officer
from May 1, 1980 until February 16, 1987.
b. You served as Zoning Officer for the Township from May 1,
1980 until July 1, 1987.
2. You are the owner of Graeber Drafting and Design Company, R.D. 1,
Shine Hill Road, Henryville, Pennsylvania.
a. This Company is engaged in providing consultant design and
draftsman services.
3. Minutes of the Pocono Township Board of Supervisor meetings
indicate the following relating to the instant situation:
a. February 16, 1987 - a motion was made by P. Ross, second by
J. Wolfe to accept the resignation of Sewage Enforcement
Officer Richard Graeber. Motion was carried by unanimous
vote. Mr. Graeber was thanked for his years of service as
Sewage Enforcement Officer and for the excellent job he had
done.
b. May 18, 1987 - D. Graeber read a prepared statement to the
board of supervisors submitting his resignation as zoning
officer of Pocono Township affective July 1, 1987 or sooner.
The supervisors all expressed their deep regrets and
disappointment for his resignation and commended him for the
excellent job he has done for the township.
c. July 6, 1987 - New business /receipt of plans. Mark DePue,
Land Development, proposed offices and shopping complex. D.
Graeber was present representing this plan. There was
discussion regarding the present use of the building for
apartments and a motion was made by J. Smiley, second by J.
Wolfe that the Mark DePue Land Development plan of proposed
offices and shopping complex be approved for preliminary and
final with the addition of a note regarding the elimination
of residential use as recommended by the planning
commission. On roll call vote the matter passed
unanimously.
d. July 20, 1987 - presentation of plans regarding the Laurels
Minor subdivision - Section 2. Kevin J. Harrison, Engineer
and Attorney Lou Powlette stated that a development
Mr. Richard F. Graeber
Page 3
agreement between the developers and the supervisors was
prepared by him. Financing had been arranged. After
further discussion a motion was made by P. Ross second by J.
Smiley, that the Minor subdivision plan of the Laurels -
Section 2 be approved as recommended by the planning
commission. The supervisors also reserved the right which
was acknowledged by the developer that if he does not
install the improvements within one year, the amount of
security must be increased. Motion carried unanimously.
(1) The Laurel Minor Subdivision lot 5 plan was presented.
Kevin J. Harrison, Engineer made the presentation.
Motion made by J. Smiley, second by Pete Ross that the
Minor Subdivision Plan of the Laurels lot 5 be approved
for final as recommend by the Planning Commission. On
role call vote motion was carried unanimously.
e. September 21, 1987 - the following item was noted as read
and accepted as a communication to the township board of
supervisors; letter September 21, 1987 from Richard Graeber,
R. F. Graeber Drafting and Design Company, agent for Kimash
Corporation regarding variance request.
(1) Communications noted include a letter from R. Graeber
regarding the mathematical error during the original
survey of the westerly property line of the Laurels
affecting the cross street as shown on the plan
originally approved. The letter requests a variance
from section 3.28E of the 1980 Pocono Township
Subdivision Ordinance to reduce the minimum width of a
private access street. After much discussion, Attorney
Swetz determined that the supervisors have the right by
agreement with the developer to have the matter
referred to the Zoning Hearing Board for arbitration.
The developer has agreed to do this. A motion was
made by Pete Ross, second by J. Smiley that the
developer Kimash Corporation go before the Zoning
Hearing Board for determination regarding the
reduction of the maximum width of the private access
street in the Laurel subdivision in Pocono Township.
The motion on roll call vote passed unanimously.
f. December 21, 1987 - Communications received indicate a
letter had been received from R. F. Graeber Drafting and
Design Company dated December 21, 1987 regarding wetlands
delineation policy.
(1)
In the category of New Business it is noted that
letters received from R. F. Graeber and a letter
Mr. Richard F. Graeber
Page 4
received from T. Eveland, Monroe County Planning
Commission regarding the Wetland delineation and
buffer zones were discussed. The Pocono Township
Planning Commission had recommended to the Supervisors
that they approve the recommendation of the Monroeville
County Planning Commission. Township Solicitor J.
Swetz will check into the possibility of having the
core of engineers to delineate the entire Monroe County
instead of doing this in a piecemeal manner.
g. April 21, 1988 - Robert Felins, Minor Subdivision plans;
presented by Dick Graeber, R.D. 1, Henryville, Pennsylvania
and R. Felins, Tannersville, Pennsylvania. The plan was
submitted March 3, 1988. A motion was made by J. Wolfe
second by J. Smiley that the supervisors approve the Minor
subdivision plan of Robert Felins as recommended by the
Planning Commission. On role call vote the motion was
passed unanimously.
(1) Bernard Hoffman Minor Subdivision plan was presented by
Dick Graeber, R. D. #1, Henryville, Pennsylvania who
explained the plan in detail. The plan had been
submitted on March 3, 1988. Any further development of
this land must come before the township. A motion to
approve the Hoffman Minor subdivision plan was made by
J. Wolfe second by J. Smiley for a preliminary and
final approval as recommended by the planning
commission. On roll call vote the matter was passed
unanimously.
h. May 2, 1988 - Minor Subdivision Plan of Donald Simpson was
presented by D. Graeber. A motion was made by Pete Ross
second by J. Smiley that the supervisors approve the minor
subdivision plan of Donald Simpson for a preliminary and
final as recommended by the planning commission. Roll call
vote was unanimous and the motion carried.
i. June 20, 1988 - Mr. Richard Graeber, R.D. #1, Henryville,
Pennsylvania presented a plan of the Laurels which had been
corrected to reflect the zoning hearing board's approval of
a variance for the private access street on February 18,
1988. The corrected plan shows the line redrawn to show the
line as it exists for the zoning hearing board's decision.
A motion was made by J. Wolfe second by P. Ross that the
corrected plan of the Laurel's reflecting the zoning hearing
board's decision be approved by the supervisors. Roll call
vote was taken and the motion carried unanimously.
Mr. Richard F. Graeber
Page 5
4. Statements of Financial Interests on file for you with the
township secretary, Pocono Township, Monroe County, Pennsylvania
indicate as follows:
a. Statement dated March 25, 1987 for calendar year 1986.
(1) Pocono Township, and Graeber Drafting and Design
Company are identified as sources of income in excess
of $500.
(2) Graeber Drafting and Design Company, Henryville,
Pennsylvania is listed as an entity of which Richard
Graeber is owner.
b. Statement dated April 11, 1986 for calendar year 1985.
(1) Pocono Township; Jackson Township; and Graeber
Drafting and Design Company are identified as sources
of income in excess of $500.
(2) Graeber Drafting and Design Company are identified as
an entity of which Richard Graeber is an owner.
c. Statement dated March 18, 1985 for calendar year 1984.
(1) Pocono Township, Jackson Township and Graeber Drafting
and Design Company are identified as sources of income
in excess of $500.
(2) Graeber Drafting and Design Company is identified as an
entity in which Richard Graeber is owner.
d. Statement dated March 8, 1983 for calendar year 1983.
(1) Pocono Township, Jackson Township are identified as
sources of income in excess of $500.
(2) Graeber Drafting and Design Company is identified as a
company in which Richard Graeber is an owner.
e. Statement dated March 24, 1982 for calendar year 1982.
(1) Jackson Township; Graeber Rental Homes and Graeber
Drafting and Design Company are listed as sources of
income in excess of $500.
Mr. Richard F. Graeber
Page 6
f. Statement dated February 27, 1981 for calendar year 1981.
(1) Jackson Township; Graeber Drafting Company and
Watergap Associates are listed as direct sources of
income in excess of $500.
(2) Apperzell Marketing Incorporated is identified as an
entity in which Richard Graeber was secretary.
5. Patrick Ross provided the following information in relation to the
instant situation:
a. He served as Chairman of the township Board of Supervisors
for 1988 and has been a member of the board of supervisors
since January of 1977.
b. Richard Graeber served as township Sewage Enforcement
Officer and Zoning Officer since approximately 1981..
c. Mr. Graeber has appeared before the township board of
supervisors on various occasions representing developers
since the time of his resignation.
d. Richard Graeber represented a land development plan dated
April 29, 1987 No. PT525 to the township board of
supervisors.
(1) Graeber Drafting and Design Company was noted as the
presenter of this application.
(2) The plans were signed by Kevin Harrison who was
identified as engineer.
e. Kevin Harrison was an engineer employed with Graeber's
firm.
6. By way of letter dated February 12, 1987 from the Pennsylvania
Department of Environmental Resources, you were advised that on
January 10, 1987, Chapter 72 regarding the Administration of Sewage
Facilities Permitting Program became effective.
a. You were further advised that Chapter 72, Section 72.41(1)
states:
"A Sewage Enforcement Officer may not plan,
design, construct, sell or install an individual
Mr. Richard F. Graeber
Page 7
or community on -lot sewage system within the
geographic boundaries of the Sewage Enforcement
Officer's authority, as specified by the local
agency."
b. The letter notes that you were currently employed as a
private consultant for Stone Row Estates and were involved
in the planning, design and construction of the sewage
disposal system for that project.
c. The letter further advised that in order for you to
continue as sewage enforcement officer for Pocono Township,
you must terminate all activity as a private consultant for
this or future proposals of a similar nature.
7. You provided the following information in relation to the instant
situation:
a. You served as Sewage Enforcement Officer in Pocono Township
from May 1, 1982 to February 16, 1987.
b. You also served as Zoning Officer for the same township
from May 1, 1980 to July 1, 1987.
c. You resigned your position as Sewage Enforcement Officer on
February 16, 1987 as a result of a letter that you received
from the Department of Environmental Resources advising you
that a Sewage Enforcement Officer may not plan, design,
construct or sell a sewage system within the boundaries of
his enforcement duties.
d. You were not aware of any restrictions that prohibited you
from representing a client before the board of supervisors
for the one -year period after leaving office.
e. You were informed of the law sometime in the spring or
early summer of 1987 by the township solicitor who stated
that he was informed that the restriction was in effect for
the one year from the date of your resignation.
f. The solicitor advised you that your date of resignation
would be the date from which you resigned your Sewage
Enforcement Officer position in February of 1987.
The solicitor advised you that your zoning officer position
would not affect your representation before the board and
that your termination date in relation to that position will
have no bearing on your one year restriction.
g.
Mr. Richard F. Graeber
Page 8
h. DER or the Ethics Commission should have notified you
you of this restriction.
i. Kevin Harrison was employed by your firm for the purposes of
engineering services.
On some occasions, the developer made his own
presentations. Kimash Corporation is the name of the
Company that owns the Laurel's Development.
k. Mark DePue is the owner of DePue and was present at the
meetings when that proposal was presented.
1. You presented a letter to the board of supervisors at the
September 21, 1987 meeting.
m. Regarding your appearance before the board on December 21,
1987, that matter involved something regarding your own
interest and you were not representing a client at that
time.
j•
n. The minutes of the April 21, 1988 meeting are correct.
B. Discussion:
As a Sewage Enforcement Officer and Zoning Officer for Pocono
Township, Monroe County Pennsylvania, you were a public employee as
that term is defined under the Ethics Act. 65 P.S. 402; 51 Pa.
Section 1.1. Following termination of your governmental service, you
became a former public employee subject to the provisions of Section
3(e) of the Ethics Act.
Section 3(e) of the Ethics Act, quoted above, restricts a former
public employee for a period of one year after termination of
governmental service from representing any person before the
governmental body with which he was associated. The term
"representation" is defined under the regulations of this Commission
as follows:
Section 1.1 Definitions.
Representation - -- Any act on behalf of any
person including but not limited to the following
activities: personal appearances, negotiating
contracts, lobbying, and submitting bid or
contract proposals which are signed by or contain
the name of the former public official or public
employee. 51 Pa. Code S1.1.
Mr. Richard F. Graeber
Page 9
In the instant matter, you resigned your position as a sewage
enforcement officer effective February 16, 1987 and your position as
zoning officer effective July 1, 1987. Thereupon, you engaged in a
course of conduct of representing persons or firms before your
governmental body within a period of one year of termination of your
governmental service. In particular, on July 6, 1987, you represented
Mark DePue Land Development relative to proposed offices and a
shopping complex before the Pocono Township Board of Supervisors;
following discussion, the board unanimously approved the plan.
Thereafter, at a September 21, 1987 meeting, you through your firm
R.F. Graeber Drafting and Design Company submitted a letter as agent
for Kismash Corporation regarding a variance request. After
discussion, the township board unanimously voted to direct the
developer, Kismash Corporation, to go before the zoning hearing board
for determination on the matter. In a December 21, 1987 meeting, a
letter was received by the board from your company concerning a
wetlands delineation policy. In this regard, you indicate that you
were not representing anyone but merely expressing your feelings
concerning the wetlands determination. Additionally, at an April 21,
1988 township meeting, you presented a subdivision plan of a Robert
Felins which was thereafter approved as recommended by the planning
commission. Likewise, in May 2, 1988, you presented a subdivision
plan of a Donald Simpson which received unanimous approval as to the
preliminary and final plan as recommended by the planning commission.
Finally, at a June 20, 1988 meeting, you presented a corrected Laurels
Minor subdivision plan which reflected the zoning hearing board's
approval of a variance; the board of supervisors unanimously approved
the zoning hearing board's decision in that case.
You however, indicate that you were not aware of the one year
restriction in Section 3(e) of the Ethics Act. You are presumed to
know the law; restating the above, ignorance of the law is no excuse.
This Commission is not swayed by your excuse, especially in light of
the fact that you have been insensitive to a conflict of interest on
at least one prior occasion. A February 12, 1987 letter from DER
advised you of a January 10, 1987 amendment to the sewage facility's
permit program wherein sewage enforcement officers were not permitted
to plan, design, and construct, sell or install sewage systems within
the geographic boundaries of the sewage enforcement officer's
authority. The letter specifically advised.that you were a private
consultant at that time for Stone Row Estates that you would have to
terminate such activities as a private consultant in order to continue
as a sewage enforcement officer for Pocono Township.
The instant matter presents a case wherein you embarked upon a
course of conduct of representing persons during the first year after
you terminated your service with Pocono Township. Such actions
contravene Section 3(e) of the Ethics Act. See Krecter, Order 595,
wherein this Commission determined that a former member of a municipal
Mr. Richard F. Graeber
Page 10
authority violated Section 3(e) of the Ethics Act when he, within one
year after his termination of service, appeared before his
governmental body representing a private business entity.
This Commission finds that you violated Section 3(e) of the
Ethics Act when you appeared before your governmental body within one
year after you terminated service and represented the interests of
various persons.
C. Conclusion and Order:
1. As a former Sewage Enforcement Officer and Zoning Officer in
Pocono Township, you are a former public employee subject to the
provisions of Section 3(e) of the Ethics Act.
2. You violated Section 3(e) of the Ethics Act when you appeared
before your former governmental body within one year after termination
of service and represented the interests of various persons.
3. This matter will be referred to the appropriate law enforcement
authority for review and appropriate action.
This Order is final and will be made available as a public
document fifteen days after issuance. However, you may request
reconsideration which will defer public release of this Order pending
action on your request by the Commission. A request for
reconsideration, however, does not affect the finality of this Order.
A reconsideration request must be received at this Commission within
fifteen days of issuance and must include a detailed explanation of
your reasons as to why reconsideration should be granted in conformity
with 51 Pa. Code 52.38.
The files in this case will remain confidential in accordance
with Section 8(a) of the Ethics Act, 65 P.S. 408(a) during the fifteen
day period and no one, including yourself, unless the right to
challenge this Order is waived, may violate confidentiality by
releasing, discussing or circulating this Order. However,
confidentiality does not preclude you from discussing this case with
your attorney at law.
Mr. Richard F. Graeber
Page 11
Any person who violates 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, 65 P.S.
409(e).
By th Commission,
lena G. Hughes
Chair