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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