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HomeMy WebLinkAbout732 SternMs. Sally Stern c/o Charles J. DeHart, III, Esquire 21 Oakglade Drive Hummelstown, PA 17036 Re: 88 -004 -C Dear Ms. Stern: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 732 Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair G. Sieber Pancoast Dennis C. Harrington James M. Howley Date Decided: December 4, 1989 Date Mailed: December 15, 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 South Hanover Township Supervisor, Dauphin County, violated the following provisions of the Ethics Act (Act 170 of 1978), when you failed to disclose on Statements of Financial Interests filed for 1984 and 1985 calendar years, your interest in Hillymede Estates: Section 5. Statement of financial interests. (b) The statement shall include the following information for the prior calendar year with regard to the person required to file the statement. Ms. Sally Stern Page 2 (8) Any office, directorship, or employment of any nature whatsoever in any business entity. (9) Any financial interest in any legal entity engaged in business for profit. A. Findinas 1. You served as a Township Supervisor for South Hanover Township, Dauphin County, Pennsylvania. a. You served in this position from 1983 to 1987. b. You voluntarily resigned from this position. 2. Records of the South Hanover Township, Sewage Enforcement Office, indicate that an application for a permit for installation of a sewage disposal system was filed on November 3, 1984 by Robert and Sally J. Stern, 21 Oakglade Drive, Hummelstown, Pennsylvania. a. This application was in relation to the site development on Hillymede Road in South Hanover Township. 3. A permit for installation of sewage disposal system for the site development at Hillymede Road was issued to Robert and Sally J. Stern on November 13, 1984. a. The permit was issued by the South Hanover Township Sewage Enforcement Officer. 4. The site development at 59 Hillymede Road was also known as Hillymede Estates. 5. Records of South Hanover Township indicate an agreement dated May 14, 1985 between Robert Stern and Sally Stern of 21 Oakglade Drive, Hummelstown, Pennsylvania, owners and developers of a subdivision known as Hillymede Estates and South Hanover Township. a. The agreement notes that developers have submitted a preliminary subdivision plan to the township known as Hillymede Estates which is located in an agriculturally zoned district. b. It is agreed that further development on a particular lot in . said subdivision will be restricted from further development and that the private driveway or lane which serves this lot Ms. Sally Stern Page 3 shall remain a private road for which the owner is responsible. c. The agreement indicates that these restrictions shall be made part of the final subdivision plans for Hillymede Estates. d. The agreement signed by Robert and Sally Stern on behalf of Hillymede Estates and Donald W. Vachon, Chairman of the Township Board of Supervisors. 6. South Hanover Township Board of Supervisor minutes for May 14, 1985 indicate as follows regarding the Township's approval of the final subdivision of Hillymede Estates: a. Under the Engineer's Report, the Hillymede Estates final subdivision plan was submitted for final action. The review period ends June 5, 1985. On motion of Edward M. Mimnagh second by Robert Smith, the Hillymede Estates final subdivision was approved pending receipt of the paperwork from D.E.R. on the sewer modules, signatures and notarization on the agreements and plans. Sally Stern abstained on the motion. 7. By way of letter dated June 19, 1985, the Bureau of Water Quality Management for the Pennsylvania Department of Environmental Resources to the South Hanover Township Board of Supervisors, it is advised that the Department approves of the permitting of the individual sewage enforcement officer for the Hillymede Estates development plan. 8. Statements of Financial Interests on file for you with the South Hanover Township Secretary indicate the following: a. Filing date - May 9, 1984. For calendar year - 1983. Direct or indirect sources of income: South Hanover Township. All other categories of financial interests - none. b. Filing date - March 26, 1985. For calendar year - 1984. Creditors in excess of $5000 - E. F. Hutton, Camp Hill, Pennsylvania. Keystone, Butler, Pennsylvania. There are no other listings in any other category of financial interests. c. Filing date - May 15, 1986. For calendar year - 1985. All categories of financial interests indicate - none. Ms. Sally Stern Page 4 d. Filing date - March 5, 1987. For calendar year - 1986. Direct or indirect sources of income - South Hanover Township, Hillymede Estates. Fidelity High Yield. Vanguard High Yield. Hillymede Farm. All other categories of financial interests - none. 9. You provided the following information in relation to the instant situation: a. You have served as a South Hanover Township Supervisor from 1983 to approximately May of 1987. b. In August of 1984, you and your husband purchased a farm house located at 59 Hillymede Road along with 40 acres of ground surrounding the house. c. In November of 1984, you and your husband filed an application for a sewage disposal system which was necessary for improvement for the sewage system that was in the farm house. d. You and your husband used the firm name of Hillymede Estates, however, this was not an incorporated entity. (1) You deny the above noting that Hillymede Estates was only a name used for identification purposes pursuant to township requirements and was never an entity or firm. e. During 1984, there was no profit made through this investment property. f. You did not list Hillymede Estates on your Statement of Financial Interests for calendar years 1984 and 1985. No earnings were realized during those years from this investment. You did report this on your statement for 1986 in light of the fact that you did receive income therefrom. h. You did not intentionally conceal ownership interest in Hillymede Estates. You were unaware if it was a reportable item. g. i. All transactions involving Hillymede Estates were the result of land ownership but not pursuant to a separate business activity. Ms. Sally Stern Page 5 J• B. Discussion: Hillymede Estates was not listed because only real estate interests involving the Commonwealth, political subdivisions or agencies need be listed. k. You had no financial interest in any legal entity engaged in business for profit in 1984 -85 and likewise held no office, directorship or employment in any business entity in 1984- 85. As a township supervisor, you are a public official as that term is defined in the State Ethics Act. 65 P.S. S402; Sowers, Opinion 80- 050. As such, you are subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. Initially, it is noted that Section 5 of Act 9 of June 26, 1989 provides, in part, as follows: "This amendatory act shall not apply to violations committed prior to the effective date of this act, and cause of action initiated for such violations shall be governed by the prior law, which is continued in effect for that purpose as if this act were not in force. For the purposes of this section, a violation was committed prior to the effective date of this act if any elements of the violation occurred prior thereto." Since the occurrences in this case transpired prior to the effective date of Act 9 (June 26, 1989), we must apply the provisions of Act 170 of October 4, 1978, P.L. 883 to determine whether the Ethics Act was violated. In the instant matter, we must determine whether your failure to list Hillymede Estates on your 1984 and 1985 calendar year Statement of Financial Interests violated Sections 5(b)(8) and (9) of the Ethics Act. The above referenced sections of the Ethics Act require the reporting of any office, directorship or employment in any business entity and also any financial interest in any legal entity engaged in business for profit. Township records reflect that you and your husband submitted a subdivision plan to the township known as Hillymede Estates. Hillymede Estates was a site development at 59 Hillymede Road for which you and your husband applied for a permit for the installation of a sewage disposal system. In a May 14, 1985 township meeting, final action on your subdivision plan was approved upon subject to Ms. Sally Stern Page 6 satisfying DER requirements; you abstained from voting on the approval motion. Although you filed Financial Interests Statements as a township supervisor for the calendar years 1984 and 1985, you did not include Hillymede Estates as a business entity in which you held any office, directorship or employment nor Hillymede Estates as a legal entity engaged in business for profit in which you had a financial interest. The question we must address is whether Hillymede Estates is a legal entity engaged in business for profit. While we have no doubt that you were engaged in this project for purposes of realizing a profit, the evidence in this case indicates that Hillymede Estates was merely a nomenclator for property jointly owned rather than an incorporated or legal entity. Since Hillymede Estates was merely a name used for identification purposes of land you and your husband proposed to subdivide, we find that you were not required to list Hillymede Estates because it was not a legal entity. You did not violate Sections 5(b)(8) and (9) of the Ethics Act by failing to list Hillymede Estates on your 1984 and 1985 calendar year Financial Interests Statements. C. Conclusion and Order: 1. As a South Hanover Township Supervisor, you are a public official subject to the provisions of the Ethics Act. 2. You did not violate Sections 5(b)(8) and (9) of the Ethics Act when you failed to list Hillymede Estates on your 1984 and 1985 Financial Interests Statements since Hillymede Estates is not a legal entity in which you have a financial interest or hold an office, directorship or employment. 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. Ms. Sally Stern Page 7 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 the/ Commission, elena G. Hughes Chair