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HomeMy WebLinkAbout1172 CaldwellIn Re: J. William Caldwell File Docket: X -ref: Date Decided: Date Mailed: Before: Daneen E. Reese, Chair Susan Mosites Bicket John J. Bolger Frank M. Brown 99- 007 -C2 Order No.1172 12/12/00 12/27/00 This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation of the Public Official and Employee Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 et seq., by the above -named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was filed and a hearing was waived. The record is complete. A Consent Agreement was submitted by the parties to the Commission for consideration which was subsequently approved. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11, Act 93 of 1998, which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under Act 93 of 1998. This adjudication of the State Ethics Commission is issued under Act 93 of 1998 and will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with Chapter 11 of Act 93 of 1998. Any person who violates confidentiality of the Ethics Law is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year. Confidentiality does not preclude discussing this case with an attorney at law. Caldwell, 99- 007 -C2 Page 2 I. ALLEGATION: That J. William Caldwell, a public official in his capacity as a zoning officer for North Franklin Township, Washington County, violated Sections 3(a) and 3(g) of the State Ethics Act (Act 9 of 1989) when he used the authority of his office for a private pecuniary benefit by taking actions and rendering decisions as zoning officer for a company with which he subsequently entered into a consulting agreement; and when he represented Adelphoi Corporation with promised or actual compensation on matters before his governmental body, the township zoning hearing board, within one year of leaving that body. II. FINDINGS: 1. Judson William Caldwell (J. William) served as the zoning officer for North Franklin Township, Washington County, from April 16, 1991 through May 24, 1998. 2. Caldwell's duties as zoning officer are detailed in a job description dated 03/20/95. 3. The duties of the position of North Franklin Township Zoning Officer included, in part, the following: a. Receive appeals and applications for conditional uses, special exceptions and variances, and forward them to the Governing Board or the Zoning Hearing Board, as appropriate. Schedule, advertise and require posting of notices upon property subject to a ZHB hearing at least two weeks prior to the hearing. Provide testimony at hearings of the ZHB, if required. b. Issue permits only where there is compliance with the provisions of the zoning ordinance. Permits for construction or uses requiring a special exception or variance shall be issued only upon order by the ZHB. Permits requiring a conditional use only upon order by the Governing Board. c. When required by the zoning ordinance, identify and register non- conforming uses and structures and record the reasons. d. Conduct inspections and surveys as prescribed by the Governing Board or ordinance to determine compliance or non - compliance with the terms of the zoning ordinance. e. Record and file all applications for permits and action taken thereon. All applications and documents shall be a public record. f. Maintain a map showing the current zoning districts and overlay areas for all lands within the municipality. Upon request, the zoning officer shall make determinations of any zoning map boundaries. Such determinations may be appealed to the ZHB. g. Upon request of the governing body, Planning Commission, or ZHB, present facts, records or information to assist them in making decisions. The scope of such assistance shall remain within the qualifications of the zoning officer as prescribed by the zoning ordinance. 4. Caldwell was compensated as zoning officer at the rate of $400.00 per month. 5. Caldwell was replaced as zoning officer by Nicholas Dubina in May of 1998. a. Between May and July 24, 1998, Caldwell assisted Nicholas Dubina in the Caldwell, 99- 007 -C2 Page 3 transition from Caldwell's service. 6. James and Lori Ann Naser were owners of a residential property at 1610 Park Avenue, North Franklin Township, Washington, Pennsylvania. a. The Nasers purchased the property August 1, 1985. b. Early in 1998, the Nasers listed their home for sale with a Howard Hanna agent after trying for approximately one year to sell the house on their own. c. The asking price was $189,000.00. 7 Prior to May 11, 1997, the Naser property was zoned R -2, low density residential. 8. On May 11, 1997, revisions made to the North Franklin Township Zoning Ordinance became effective. a. A revised Subdivision and Land Development Ordinance and zoning map also became effective May 11, 1997. 9. As a result of the revision to the North Franklin Township zoning map, the Naser property was split zoned as both R -2 and C -1. a. The property was previously zoned R -2, Low Density Residential. b. The new zoning district was C -1, Neighborhood Commercial. 10. Adelphoi, Inc., is a non - profit organization that administratively supports various human service agencies, including Adelphoi Village. a. Adelphoi, Inc., performs administrative functions such as fund - raising, clerical, fiscal, and purchasing responsibilities. b. Adelphoi, Inc., supports programs of Adelphoi Village through ownership of property, lease arrangements, and through management of those services. c. Adelphoi Village is a non - profit organization which operates 18 group homes for delinquent and dependent youth in four counties in western Pennsylvania. 11. Washington County has utilized the services of Adelphoi Village for approximately 12 years for placement and treatment of delinquent youth. a. Washington County is one of the top two counties utilizing the services of the Adelphoi Village group homes. 12. Adelphoi, Inc., had been interested in purchasing property in Washington County for use as an Adelphoi Village group home for a number of years. 13. In March 1997, James Bendel, the Executive Director of Adelphoi, Inc., contacted Metro Real Estate Services, Inc., Agent Jon DePoe to assist Adelphoi, Inc., in the search for property in Washington County for use as a group home. 14. On or about August 12, 1997, DePoe contacted the North Franklin Township zoning officer, William Caldwell, regarding zoning limitation for group homes for delinquent youth. Caldwell, 99- 007 -C2 Page 4 a. At that time DePoe was aware the Naser's were trying to sell their property and was considering the Naser property as a potential site for Adelphoi. 15. Caldwell provided DePoe with a two -page facsimile which included the North Franklin Township zoning ordinance definition of a group home. On the cover page, Caldwell wrote: "Intended purpose is to comply with federal regulations regarding 'ARC' homes and those servicing mentally handicapped individuals. I don't believe that detention facilities would qualify for this definition." 16. After receiving Caldwell's facsimile, DePoe took the Naser property out of potential consideration. 17. In April 1998, DePoe stopped at the Naser house and talked to James Naser about the potential use of his property as a group home. a. DePoe was interested in the Naser home because it was listed as a commercial property rather than residential. b. DePoe was of the understanding that a group home would be allowed in a commercially zoned district. 18. James Bendel expressed an interest in the Naser property during the initial showing, and a second showing was arranged, on or about April 29, 1998, to include Adelphoi's architect. a. Adelphoi had retained Gunther J. Kaier Architects, Inc., to conduct a site review and advise as to whether the building could be adopted for use as a group home. 19. On June 18, 1998, Naser contacted Caldwell to inquire as to whether a group home would be permitted in an R -2 or C -1 zoned district. a. Naser indicated that he was considering the sale of his home to Adelphoi for use as a group home for troubled youth. b. Naser related to Caldwell that changes would be made to the structure by Adelphoi, but he did not know to what extent. c. Naser obtained a building permit application from Caldwell. 20. Caldwell reviewed the zoning ordinance and advised Naser of the following: a. The property could be sold as either R -2 or C -1, at the owner's choice. b. A group home in an R -2 district was a permitted use. 21. In a June 24, 1998 letter to James Bendel, Caldwell provided his opinion as zoning officer that the sale of the property would not prohibit the use of the property as a group home. a. Caldwell advised that in a R -2 district, a group home is a permitted use. 22. Naser obtained the June 24, 1998 letter directly from Caldwell and then sent it by Caldwell, 99- 007 -C2 Page 5 facsimile to Bendel. a. Naser took Caldwell's letter as a definitive opinion that his property was zoned correctly for use as a group home. 23. Bendel and Naser subsequently negotiated a selling price of $175,000.00. 24. The Agreement of Sale and Purchase, signed by Bendel on June 18, 1998, and by the Nasers on June 25, 1998, included in part a condition that property is zoned C- 1 Commercial or meets local zoning requirements. 25. On June 29, 1998, Adelphoi architect Gunther Kaier obtained a copy of the North Franklin Township zoning ordinance from Nicholas Dubina at the zoning office. a. Dubina did not provide an opinion to Kaier as to the use of the Naser property as a group home. b. Dubina provided Kaier with information as to the Planning Commission and Board of Supervisors meeting dates and general North Franklin Township procedures. c. Dubina referred Kaier's zoning questions to Caldwell because he had observed Caldwell and Naser meeting at the zoning office previously and assumed it was in relation to the zoning of Naser's property. 26. In a July 1, 1998, memorandum James Bendel notified Gene McDonald, attorney for Adelphoi, of Adelphoi's intent to purchase property in North Franklin Township, Washington County, for use by Adelphoi Village as a group home. a. Bendel advised that zoning was an issue and referenced Caldwell's June 24, 1998, letter. b. Bendel instructed McDonald to follow up and obtain a "legal" correspondence to substantiate that Adelphoi meets all of the local regulations. 27. On July 6, 1998, Adelphoi's architects stopped at the North Franklin Township zoning office to obtain written verification of the zoning on the Naser property from the zoning solicitor. a. The architects met Caldwell who telephonically contacted Attorney Gary Sweat and requested written verification that the property was zoned residential. b. Caldwell advised architects Gunther Kaier and Robert Weis that a letter would be provided by the zoning solicitor as to the property's correct zoning. c. Caldwell provided an opinion that there was no problem with the zoning on the property. d. Caldwell provided Kaier and Weis with a building permit application. 28. Subsequent to his meeting with the Adelphoi architects, Caldwell prepared a memo dated July 6, 1998, to Nicholas Dubina in accord with the zoning solicitor's opinion directing him that no action needed to be taken in regard to the Adelphoi project. Caldwell's memo stated the following: Caldwell, 99- 007 -C2 Page 6 "Just a reminder on the above project /purchase which involves the Naser property. I had a visit from the architects from Gunther J. Kaier architects, INC on Monday, 7/6/98 and informed them of the Permitted Use in a R -2 for Group Homes. This does not need to be reviewed by the Planning Commission or anyone else. It will have a renovation permit issued when they apply for one. Attorney Gary Sweat will forward a letter to James Bendel of Adelphoi Village. A copy of my letter was faxed to him as well. The optional classification of this property to C -1 will not be utilized during this purchase. The property will continue to be utilized under permitted uses of R -2 Districts." 29. By way of letter dated July 7, 1998, North Franklin Township Zoning Solicitor Gary Sweat provided Bendel zoning information on 1610 Park Avenue. This matter has been referred to me by Mr. Bill Caldwell, the Zoning Officer for North Franklin Township. It is my understanding you have requested information concerning the uses permitted for the residence located at 1610 Park Avenue in North Franklin Township, Washington County, Pennsylvania. have a copy of Mr. Caldwell's letter dated June 24, 1998, and I agree with his review of the permitted uses for the property. As he indicated, the property was located in an R -2 district until May of 1997, at which time this particular property was changed to a C -1 - Neighborhood Business classification. A zoning change is not permitted to extinguish a prior use such that a group home would be considered a permitted use under the R -2 designation. I think the following information will be helpful to you as you evaluate this business prospect: 1. Group homes are listed as permitted uses in an R -2 Low Density Residential District classification. A personal care boarding home is listed as a conditional use subject to 1332 of the Ordinance, a copy enclosed. 2. The current classification C -1 neighborhood Business District permits a personal care boarding home as a conditional use subject to 1332, copy enclosed. I have supplied this information to you, insofar as I am not certain which classification would apply to your proposed use." 30. On July 28, 1998, Adelphoi attorney McDonald telephonically contacted Planning and Zoning Solicitor Gary Sweat to discuss Sweat's letter of July 7, 1998, specifically in regard to zoning as it related to group homes. 31. On July 30, 1998, Attorney McDonald provided a status report to James Bendel which contained the following regarding the zoning and his attempts to discuss the matter with Caldwell. - He reviewed the Agreement (of Sale and Purchase) and advised that it was satisfactory. - His question concerning the zoning classification of the property at Caldwell, 99- 007 -C2 Page 7 1610 Park Avenue was answered during his July 7, 1998 conversation with Sweat. Sweat had no problem with the property meeting the zoning requirements as long as McDonald and Bendel were satisfied with the definition of group home as it exists in the zoning ordinance. He reviewed the definition of group home in the zoning ordinance and believed that Adelphoi Village, Inc., met the requirement as a certified agent and licensed by the Commonwealth of Pennsylvania. Sweat advised that the zoning officer was solely in control of making sure that all the regulations of zoning and applicable codes are met as to the facility and any and all changes or alterations that are to be made to the facility. He attempted to contact Caldwell but "apparently there was developing a problem of an unknown cloudy situation." - In follow -up calls, he was advised that Caldwell was no longer the zoning officer. - The new zoning officer, Nick Dubina, has office hours from 4:00 - 7:00 p.m. - He intended to contact Dubina, referring him to Caldwell's letter (of June 24, 1998) and Adelphoi's proposed project. 32. The Board of Directors of Adelphoi, Inc., authorized the president and executive director to take all action necessary to get the plan approved from the Planning Commission for the Washington County acquisition. 33. On or about August 4, 1998, Naser suggested to Bendel that Adelphoi retain Caldwell as a consultant to assist them in obtaining the building permit. 34. McDonald talked to Caldwell on August 28, 1998, regarding Caldwell being retained as his consultant for the permitting purposes and zoning requirements. a. McDonald discussed the arrangements on the Washington County property that Adelphoi proposed to buy from Naser. b. Bendel would be responsible for negotiating the financial arrangements and payment schedule with Caldwell. c. Payments would be made to Caldwell by the law firm, and the firm would be reimbursed by Adelphoi. 35. Caldwell met with James Bendel at the Naser home on September 1, 1998, to discuss the consulting arrangement and compensation for the position. a. Duties and compensation were agreed upon during that meeting. 36. By way of letter dated September 2, 1998, Caldwell related to Attorney McDonald details of the consulting duties and compensation that he and Bendel had agreed upon during their meeting on September 1, 1998. The letter, in part, contained the following: Caldwell, 99- 007 -C2 Page 8 a. An initial site review was conducted with Mr. Bendel and Mr. Naser. Exterior photographs were taken to be used in the building application process. The plans, in general, were discussed although no actual plans are available at this time. Mr. Bendel indicated he wishes a meeting between he, the architect and myself prior to the final plans are drawn. b. Compensation was agreed upon in the form of a $500.00 payment upon receipt of this notice to cover the expenses incurred for the initial consult with Mr. Bendel, the initial site review, photography, meeting with Mr. Gunthier for final plan consultation, plan review, and building application preparation and submittal. c. Additional fees of $200.00 monthly will be due the 1st of each month beginning October 1, 1998 to cover any meetings or contacts necessary with Township officials until the application is obtained and /or services are no longer required. 37. In his letter, Caldwell described himself as "Adelphoi Homes Consultant." 38. By way of letter dated September 10, 1998, Attorney McDonald acknowledged Caldwell's letter of September 2, 1998, and enclosed a check in the amount of $500.00 to cover Caldwell's retainer fee. a. The retainer covered the following services: 1) Site review with the owner and Bendel. 2) Preparation of plans. 3) Working with the architect. 4) Photography expenses. 5) Attending meetings necessary for final plan consultation review. 6) Preparing and submitting the appropriate application. b. A monthly $200.00 fee would cover meetings and contacts with appropriate government officials. c. The monthly fee would continue until Caldwell's services were no longer needed or required in the process or until the project was totally completed. 39. Caldwell maintained a log of the activities he performed as a consultant for Adelphoi, which reflect the following in regard to his meeting with Bendel on September 1, 1998, and subsequent dates: 9/1/98 1) Zoning 2) -C2 Friendly - Labor & Ind. -10 -12 youth 2 egress from both floors 3) Dept. of Public Welfare Also noted: Attic Area; kitchen will be in basement; Architect meeting will be scheduled when plans are done. Caldwell, 99- 007 -C2 Page 9 9/2/98 letter sent out to Gene McDonald: RE: fees 9/4/98 Photography out for Processing 9/7/98 Photography picked up 9/11/98 Receipt of $500.00 retainer fee. Letter of acknowledgment. 9/29/98 Received copy of fax to Jim Naser from Jim Bendel. 9/30/98 Called to James Naser Content: - Bendel met with Architect last Thursday - Bendel said should be ready either Friday or Monday I directed: - We will need a contractor and a workers compensation form - Gunther Kaier (phone #) architect 40. Caldwell provided Attorney McDonald with monthly letters updating his activities and serving as invoices for his consulting fee. 41. By way of letter dated October 9, 1998, to Attorney McDonald, Caldwell detailed services he had performed in his position as consultant: a. He had reviewed the architect's plans for renovation and determined that they met all zoning requirements as per North Franklin Township codes. b. He had begun to assemble the application package, including Labor and Industry and contractor information. c. He had met with the North Franklin Township zoning officer (Dubina) to inquire if any additions or deletions had been made to the township code (zoning ordinance). 42. Attorney McDonald responded by letter dated October 15, 1998. a. He requested that Caldwell proceed rapidly to get this matter filed, and advise him of the tentative schedule. b. A $200.00 check was enclosed for the month of October as per Caldwell's agreement with Adelphoi, Inc. 43. Caldwell's log confirms duties performed in October as consultant to Adelphoi as follows: 10/5/98 - Call to James Naser (phone #) - says pre -lim are done and will be here today. I requested Fed. ID #, name & address of company of contractor along with copy of (illegible) for workmens compensation insurance. 10/6/98 - Plans in. Called James Naser due to message he left requesting call. Frank Quinn Contractor has been selected. Jim Bendel says I am to bill Mr. McDonald for monthly fee. 10/9/98 - Billing letter sent to Gene McDonald. 10/15/98 - Call to James Naser, left message (2 times) Plans were sent to Harrisburg, PA for L &I approval required by Dept. of Welfare. 10/17/98 - letter in from Gene McDonald. $200.00 check 10/20/98 - Call from James Naser. Plans are back from Labor & Industry. A couple of revisions are necessary. Plans are going to be corrected and taken back to L &I. We Caldwell, 99- 007 -C2 Page 10 10/21/98 10/23/98 10/25/98 10/26/98 10/28/98 10/29/98 discussed submission date. It seems that 2 Nov will be a good date. I will contact Nick Dubina to arrange a meeting for review. Requested project costs for (illegible) on application. Stated $175,000.00 for project. Call to Frank Quinn, message left for address, so I can fill out work comp form that needs completed & signed. Frank Quinn 265 Valley Brook Rd McMurray PA 15317 Sent letter to Frank Quinn with work comp form in return envelope enclosed. sent letter to James Bendel with application to sign enclosed. Return envelope enclosed. Call the Attorney to run by the payment; from Jim Naser or from Adelphoi. Called Gene McDonald. He was not in. Gene McDonald called. Notify Gene of permit costs. Closing tentatively 10 NOV 98. Send letter prior to closing (illegible) so Jim Naser can get letter of cost. closing atty: Conti, James Rec'd signed application from James Bendel. Rec'd signed work comp form from Mr. Quinn, contractor. called Jim Naser. 44. Caldwell met with Dubina on November 2, 1998, to submit the building permit application with plans for the renovation, workers' compensation forms, etc. a. It was Caldwell's intent to obtain the building permit at that time. b. Caldwell had met with Nick Dubina approximately a week before the November 2, 1998 meeting and provided him with the application and other documentation. c. Caldwell was then advised by Dubina [to] keep them and bring in the whole package on Monday, November 2, 1998. 45. Dubina reviewed the application to establish that all necessary information and attachments were provided. a. Caldwell and Dubina spent approximately 45 minutes reviewing the plans for the alterations for the building. b. Dubina checked the zoning ordinance for an R -2 district to confirm that a group home was a permitted use. c. Caldwell presented the application as a complete package. 1) The only item missing from the application was the address for Bendel /Adelphoi. 46. The building permit application prepared and submitted by Caldwell, in his capacity as consultant for Adelphoi, Inc., contained the following information: Location of Property: Park Ave., Washington, PA Caldwell, 99- 007 -C2 Page 11 Information about owner: Name: James Naser /James Bendel, Adelphoi Inc. Address: Park Ave., Washington, PA/ Information about applicant: owner Property presently zoned: R -2 (C -1 approved) Type of Occupancy: Single Residential Group Home Date: Nov. 2, 1998 Signature of Applicant: James Naser James Bendel a. Caldwell had provided the application to Naser and Bendel for their respective signatures prior to submitting it to Dubina. 47. The application identified the owner of the property as James Naser /James Bendel, Adelphoi, Inc. a. Dubina was not aware that Naser sold the property to Adelphoi. b. Dubina believed that Naser either entered into a partnership with Adelphoi or was leasing the property to them. c. Caldwell provided no information that the property was sold. 48. During Caldwell's meeting with Nick Dubina on November 2, 1998, additional information was handwritten on the application. Twp Fed ID# "1610" before Naser's address; and "105 West 4th St. Greensburg PA 15601" (Adelphoi's office) after Naser's address Date the permit was issued, fee information, and method of payment; along with the signature of Nick Dubina as Code Enforcement Officer. 49. The fees for the various permits were paid with a blank check from James Naser's account, which Caldwell completed. a. The fees for the building, zoning, and occupancy permits were based on being issued for a residential use. 50. At the time he met with Caldwell, Dubina did not know the intended use of the property was a youth detention facility. a. Dubina believed that the group home was for senior citizens or mentally challenged individuals. 51. Building Permit No. 98 -52 was issued for 1610 Park Avenue (the Naser property) on November 2, 1998, by North Franklin Township Zoning Officer Nicholas Dubina. a. The zoning application, completed by Caldwell, was also submitted and paid for at the same time. 1. The zoning permit was not issued because the facility was not ready for occupancy. 52. Dubina issued the building permit based on information provided to him by Caldwell regarding the applicable zoning of the property at 1610 Park Avenue as R -2 and the establishment of a group home as a permitted use in an R -2 district. Caldwell, 99- 007 -C2 Page 12 a. Dubina was aware of Caldwell's involvement with the zoning issue for Naser's property, while Caldwell was the zoning officer. b. Caldwell reminded Dubina about the July 6, 1998 letter he had issued to Dubina about the zoning on the Naser property. c. Caldwell did not specifically state that Naser was selling the property. 53. After November 2, 1998, Dubina had no further contact with Caldwell about the Naser property. 54. Caldwell submitted an accounting of his consultant services to Attorney McDonald by way of letter dated November 3, 1998, which included the following: a. The building permit had been received as of November 2, 1998. b. The documents were forwarded to Naser, and Naser was to provide them to the architects along with the original blueprints approved by Labor and Industry. 1) Copies were included for McDonald's file. c. Inspections were required at four stages of the construction. d. Offered to schedule the inspections with the zoning officer when the contractors were ready. 55. Caldwell's personal log relates the following in regard to consulting services he performed for Adelphoi in November 1998: 11/1/98 11/2/98 Final prep. of Permit submission 9 -11:30 Z. office hrs. Permit Costs — (illegible) $175,000.00 Bldg Zon Occ 525.00 20.00 25.00 Total $570.00 Inspections Required 1)Footers 2)Rouqh Frame 3)Electrical 4)Final Permits received upon review by Nick Dubina 56. On November 6, 1998, Attorney McDonald sent Caldwell a check in an amount of $200.00 for consulting services performed in November. 57. On December 4, 1998, the closing on the sale of the Naser property to Adelphoi took place. 58. Adelphoi entered into a construction contract for renovations at 1610 Park Avenue on December 7, 1998. 59. Caldwell was paid a total of $1,100.00 as a result of the consulting agreement that he entered into with Adelphoi, Inc. 60. Payments made to Caldwell were made by the law firm of McDonald, Snyder & Williams, P.C. (formerly McDonald, Moore, Mason & Snyder), Latrobe, Pennsylvania from September 9, 1998, through December 22, 1998, totaling Caldwell, 99- 007 -C2 Page 13 $1,100. 61. December 22, 1998, marked the final payment to Caldwell for the consulting services he was providing to Adelphoi. 62. The law firm of McDonald, Snyder & Williams, P.C., invoiced Adelphoi, Inc., for the $1,100 in payments made to Caldwell as per the consulting agreement. 63. Adelphoi, Inc., issued checks totaling $1,100 to the law firm in payment of the invoices which reflected the charges for William Caldwell as consultant. 64. Adelphoi selected Caldwell as consultant for the Naser property for the following reasons. a. Naser recommended Caldwell to James Bendel. b. Bendel wanted Caldwell to be a consultant under his direction for two reasons. 1) So that it would be a legal arrangement in that Adelphoi was interested in being in compliance with the zoning ordinance and building codes and that the plans were properly processed. 2) For accounting purposes, he wanted it on the legal side of the professional services rather than on the accounting side. c. McDonald wanted Caldwell to deal with him directly for questions about procedure once the construction got underway to make sure Adelphoi was in compliance with the codes. d. As consultant Caldwell would walk Adelphoi through the permitting process, or at least oversee any applications necessary, to be sure they complied with the code. e. Bendel negotiated the terms of the consultant agreement with Caldwell at his instruction because ultimately Adelphoi was going to pay for it. 65. On January 20, 1999, at the request of the North Franklin Township Board of Supervisors, and subsequent to his own review, Dubina revoked Building Permit No. 98 -52 issued November 2, 1998, for the property at 1610 Park Avenue, North Franklin Township, based upon an error of law and fact. a. The property is split zoned R -2 and C -1. b. The structure is located on the portion of the property zoned C -1. c. A group home is not a permitted use in a C -1 district. d. In order to use the structure as a group home, an application for a variance is necessary. e. The error was compounded by the suggestion on the building permit application that the property was zoned R -2. 66. On February 8, 1999, Adelphoi appealed the revocation of the building permit and cease and desist order to the North Franklin Township Zoning Hearing Board. Caldwell, 99- 007 -C2 Page 14 III. DISCUSSION: At all times relevant to this matter, the Respondent, Judson William Caldwell, hereinafter Caldwell, has been a public official subject to the provisions of the Public Official and Employee Ethics Law, Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, et seq. as codified by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 et seq., which Acts are referred to herein as the "Ethics Act." The issue is whether Caldwell violated Sections 3(a) and 3(g) of the Ethics Act as to the allegations that he took actions and rendered decisions as the Zoning Officer for North Franklin Township relating to Adelphoi Corporation, a company with which he subsequently entered into a consulting agreement; and when he represented that company for actual compensation on matters before his governmental body, North Franklin Township Zoning Hearing Board, within one year of leaving that body. Pursuant to Section 3(a) of the Ethics Law quoted above, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under Act 9 of 1989 as follows: Section 2. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 P.S. §402. Section 3(a) of Act 9 of 1989 prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Section 3. Restricted activities (g) No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. Under Section 3(g) of Act 9 of 1989, the terms "governmental body ", "person ", and "represent" are defined in the Ethics Law as follows: Section 2. Definitions Caldwell, 99- 007 -C2 Page 15 facts. "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body, or other establishment in the Executive, Legislative or Judicial Branch of a state, a nation or a political subdivision thereof or any agency performing a governmental function. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. "Represent." To act on behalf of any other person in any activity which includes, but is not limited to, the following: personal appearances, negotiations, lobbying and submitting bid or contract proposals which are signed by or contain the name of a former public official or public employee. 65 P.S. §402. Having noted the issues and applicable law, we shall now summarize the relevant Caldwell served as the Zoning Officer for North Franklin Township (Township), Washington County, from April 16, 1991, through May 24, 1998. As Zoning Officer, Caldwell's responsibilities included, in part, the following: receiving applications for conditional uses, special exceptions and variances, and forwarding them to the governing board or the zoning hearing board when appropriate; issuing permits only where compliance with the provisions of the zoning ordinance exists; issuing permits for constructions or uses requiring a special exception or variance only upon order of the zoning hearing board; and presenting facts, records or information to assist the governing body, planning commission or zoning hearing board in making decisions. On May 11, 1997, amendments to the Township Zoning Ordinance and zoning map became effective. As a result of the amendments, residential property owned by James and Lori Ann Naser located at 1610 Park Avenue, North Franklin Township in an R -2 (Low Density Residential) zone, became split -zoned R -2 and C -1, (Neighborhood Commercial). Since early 1997, the Nasers had been trying to sell their home. Adelphoi, Inc., a non - profit organization that operates 18 group homes in four counties in western Pennsylvania for delinquent and dependent youth, had been interested in purchasing a property in Washington County to use as a group home. In March 1997, Adelphoi's Executive Director, James Bendel, contacted Jon DePoe, an agent for Metro Real Estate Services, Inc., to search for suitable property in Washington County. DePoe, who was aware that the Nasers were trying to sell their home, contacted Caldwell in August 1997 to inquire about the zoning limitation for group homes for delinquent youth. In response to DePoe's inquiry, Caldwell stated his opinion that the Township Zoning Ordinance's definition of "group home" did not include detention facilities. Following Caldwell's response, DePoe ceased considering the Naser residence as a possible group home. In 1998, the Naser property was listed as being in a commercial, rather than a residential zone. Believing that a group home was permissible in a commercial zone, Depoe again became interested in the Naser property as a possible Adelphoi acquisition. After showing the property to Bendel and Adelphoi's architects who were retained to Caldwell, 99- 007 -C2 Page 16 conduct a site review and advise whether the home could be converted into a group home, Naser contacted Caldwell to inquire whether a group home for troubled youths would be permissible in an R -2 or C -1 zone. Caldwell advised Naser that the residence could be sold either as an R -2 or C -1 property and that a group home was a permitted use in an R -2 zone. Caldwell later wrote to Bendel advising him that the sale of the Naser home would not prohibit the use of the property as a group home. In June 1998, the Nasers and Bendel entered into an Agreement of Sale and Purchase for the Naser property. In July 1998, Adelphoi's architects met with Caldwell to request written verification that the Naser property was in a residential zone. Caldwell contacted the Solicitor to the Zoning Hearing Board, Gary Sweat, to ask for legal confirmation as to the zoning issue. In the meantime, Caldwell provided the architects with a building permit application. Following discussions among Caldwell, Solicitor Sweat, Bendel and Adelphoi's attorneys regarding the zoning classification of the Naser property, Adelphoi directed its president and executive director to take all action necessary to obtain plan approval from the Township Planning Commission. In August 1998, after Caldwell's May 24, 1998, resignation as Zoning Officer, Naser suggested to Bendel that Adelphoi retain Caldwell as a consultant for the purpose of obtaining the necessary permits during the approval process. Caldwell provided consulting services to Adelphoi from September 1, 1998, to November 2, 1998. The services rendered by Caldwell with regard to the Naser property included several meetings in October and November 1998 with Nick Dubina, the succeeding zoning officer, to inquire whether any amendments had been made to the Township Zoning Ordinance, review the plans and alterations for the Naser property, and submit the building permit application, plans and other documentation. Caldwell was paid a total of $1,100.00 for consulting services rendered to Adelphoi, Inc., which services included the meetings with Dubina. Dubina issued a building permit for the Naser property but subsequently revoked it after realizing that the property was split -zoned and the actual structure was located in a C -1 district in which group homes were not permitted. Adelphoi appealed the building permit and cease and desist order to the Township Zoning Hearing Board. Having summarized the above relevant facts, we must now determine whether the actions of Caldwell violated Sections 3(a) and 3(g) of Act 9 of 1989. The parties have submitted a Consent Agreement together with a Stipulation of Findings wherein they propose to resolve the case by finding no violation of Section 3(a) of the Ethics Act in relation to Caldwell using the authority of office for a private pecuniary benefit by taking actions and rendering decisions as the North Franklin Township Zoning Officer for Adelphoi, Inc., a company with which he subsequently entered into a consulting agreement, based upon insufficient evidence; a violation of Section 3(g) of the Ethics Act in relation to Caldwell representing Adelphoi, Inc. with promised or actual compensation on matters before the North Franklin Township Zoning Hearing Board, Caldwell's governmental body, within one year of leaving that body; and Caldwell agreeing to make a payment of $1,100 within 30 days of the issuance of this Order through this Commission to the Commonwealth of Pennsylvania. As to the allegation that Caldwell violated Section 3(a) of the Ethics Act when he used the authority of office for a private pecuniary benefit by taking actions and rendering decisions as the North Franklin Township Zoning Officer for Adelphoi Inc., a company with which he subsequently entered into a consulting agreement, based upon a review of the record, we find a lack of clear and convincing evidence to establish such a violation. Clear Caldwell, 99- 007 -C2 Page 17 and convincing evidence is defined as "testimony that is so `clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue." In re: Charles E. D.M., 550 Pa. 595, 601, 708 A.2d 88, 91 (Pa. 1998)(Citation omitted.) A reasonable and legitimate expectation that a business relationship will form may support a finding of a conflict of interest. Amato, Opinion 89 -002. However, in the instant matter, we find no evidence that during Caldwell's tenure as Township Zoning Officer, he could have reasonably anticipated that he would become a paid consultant for Adelphoi, Inc. There were no discussions or even suggestions about a possible business relationship with Adelphoi. In this regard, we note that Caldwell resigned in May 1998 and did not enter into a consulting agreement with Adelphoi, Inc. until September 1998. Absent any actual or attempted private pecuniary benefit, the essential elements for a violation of Section 3(a) of the Ethics Act cannot exist. Accordingly, we find no violation by Caldwell of Section 3(a) of the Ethics Act due to a lack of clear and convincing evidence. With regard to Section 3(g) of the Ethics Act, Caldwell ceased working as the Township Zoning Officer on May 24, 1998, at which point, he became a former public employee subject to Section 3(g) of the Ethics Act. Pursuant to Section 3(g), Caldwell could not engage in prohibited representation before his former governmental body, the North Franklin Township Zoning Hearing Board, for one year following termination of service with that body. Although Section 3(g) would not prohibit Caldwell from accepting a position with Adelphoi as a private consultant, it would restrict his conduct in his new position to the extent that such conduct would constitute representation before the Zoning Hearing Board. In this respect, Caldwell did engage in prohibited representation before the Zoning Hearing Board when, in October and November 1998, he met with Nick Dubina, the succeeding Township Zoning Officer, to inquire whether any amendments had been made to the Township Zoning Ordinance, review the plans and alterations for the Naser property, and submit the building permit application, plans and other documentation. The record reflects that Caldwell received a total of $1,100 for consulting services rendered to Adelphoi, Inc., which services included the meetings with Dubina. Accordingly, we find a violation by Caldwell of Section 3(g) of the Ethics Act when he represented Adelphoi, Inc., with promised or actual compensation, on matters before the North Franklin Zoning Hearing Board, within one year of leaving that body. As to the Stipulation of Findings and Consent Agreement, we believe that the Consent Agreement is the proper disposition for this case based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, Caldwell is directed to make a payment of $1,100 within 30 days of the issuance of this Order through this Commission to the Commonwealth of Pennsylvania. Compliance with the foregoing will result in the closing of this case with no further action. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Caldwell, as the North Franklin Township Zoning Officer, was a public official subject to the provisions of Act 9 of 1989. 2. Based upon a lack of clear and convincing evidence, Caldwell did not violate Section 3(a) of the Ethics Act with regard to the allegation that he used the authority of office for a private pecuniary benefit by taking actions and rendering decisions as the North Franklin Township Zoning Officer for Adelphoi, Inc., a company with which he subsequently entered into a consulting agreement. Caldwell, 99- 007 -C2 Page 18 3. Caldwell violated Section 3(g) of the Ethics Act when he represented Adelphoi, Inc., with promised or actual compensation, on matters before the North Franklin Township Zoning Hearing Board, within one year of leaving that body. In Re: J. William Caldwell : File Docket: 99- 007 -C2 : Date Decided: 12/12/00 : Date Mailed: 12/27/00 ORDER NO. 1172 1 Caldwell, as the North Franklin Township Zoning Officer, did not violate Section 3(a) of the Ethics Act with regard to the allegation that he used the authority of office for a private pecuniary benefit by taking actions and rendering decisions as the North Franklin Township Zoning Officer for Adelphoi, Inc., a company with which he subsequently entered into a consulting agreement. 2. Caldwell violated Section 3(g) of the Ethics Act when he represented Adelphoi, Inc., with promised or actual compensation, on matters before the North Franklin Township Zoning Hearing Board, within one year of leaving that body. 3. As per the Consent Agreement, Caldwell is directed to make a payment of $1,100 within 30 days of the issuance of this Order through this Commission to the Commonwealth of Pennsylvania. a. Compliance with the foregoing will result in the closing of this case with no further action. b. Noncompliance will result in the institution of an order enforcement action. BY THE COMMISSION, DANEEN E. REESE, CHAIR