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HomeMy WebLinkAbout1228 CataloneIn Re: Victor Catalone File Docket: X -ref: Date Decided: Date Mailed: Before: Daneen E. Reese, Chair Louis W. Fryman, Vice Chair John J. Bolger Frank M. Brown Susan Mosites Bicket Donald M. McCurdy 00- 077 -C2 Order No. 1228 2/4/02 2/15/02 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 Act, Act 9 of 1989, P.L. 26, 65 P.S. §401 et seq., as codified by Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 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 deemed waived. The record is complete. A Consent Agreement and Stipulation of Findings were submitted by the parties to the Commission for consideration. The Consent Agreement was subsequently approved. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. §1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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 Act 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. Catalone, 00- 077 -C2 Page 2 I. ALLEGATION: That Victor Catalone, a public official in his capacity as a Supervisor for Jay Township, Elk County, violated Section 3(a)/1103(a) of the Ethics Act (Act 93 of 1998, 65 Pa.C.S. §1101 et seq.), when he used the authority of his office for the private pecuniary benefit of himself and /or a business with which he is associated by approving building permits for individuals to place house trailers on property he owns resulting in rental payments to himself. II. FINDINGS: 1. Victor Catalone has served as a Supervisor for Jay Township, Elk County, since January 1998. a. Catalone currently serves as the chairman of the Board of Supervisors. b. Catalone also served as the chairman of the board of supervisors in 1999. c. Catalone served as the vice - chairman of the board of supervisors in 1998 and 2000. 2. Jay Township is a Second -Class Township with a three - member Board of Supervisors. a. Supervisors receive $156.25 per month compensation for serving on the board of supervisors. 3. All three township supervisors are annually appointed to work for the township as laborers on an as- needed basis. 4. All three of the township supervisors and the secretary /treasurer have signature authority on township accounts. a. Township checks require the signatures of the secretary /treasurer and one member of the board of supervisors. 5. On August 19, 1999, the supervisors passed a Resolution No. 99 -2, authorizing the secretary /treasurer to use the signature stamp of the chairman of the board of supervisors to conduct township business. a. The signature stamp was used only during the latter part of 1999. 6. Lisa Anderson served as full -time secretary /treasurer for Jay Township from August 1998 through December 1999. a. Anderson served as the part -time secretary /treasurer from January 1998 through July 1998. b. Anderson typically informed Catalone when, and on what, she planned on using his signature stamp. 7 Catalone owns several parcels of property located in Jay Township on Teaberry Street Extension. a. Catalone's residence is located on one parcel of land located on Teaberry Street Extension. Catalone, 00- 077 -C2 Page 3 b. Catalone uses two other adjoining parcels as rental property for trailer homes. c. Catalone also has other rental property. 8. Jay Township Ordinance No. 84 -3, requiring building permits, establishing the procedure for setting fees, and providing penalties, was enacted by the Jay Township Board of Supervisors on August 29, 1984. 9. Ordinance No. 84 -3, Section 3 (b), titled Building Permits, requires a township building permit be obtained prior to the installation or placement of any mobile home on any lot within the Township. 10. Ordinance No. 84 -3, Section 4 (a), titled Issuance of Permits, provides as follows regarding the permit process: Building permits shall be made on a form prescribed by the township and shall be filed with the township secretary. The application shall be accompanied by such plans and specifications as may be required to ensure compliance with any subdivision, zoning, or building ordinances hereafter in effect in the township. c. If the application is for construction of a residential dwelling or installation of a mobile home, the application shall be accompanied by an application for a permit to install an individual sewage disposal system or for connection to any municipal sewage collection system accessible to the property. a. b. 1. The smaller of these two parcels measures approximately 193 feet by 50 feet (.23 acres). 2. The larger of these two parcels measures approximately 200 feet by 200 feet (.93 acres). 11. Ordinance No. 84 -3, Section 4 (b), titled Issuance of Permits, requires the board of supervisors take action within thirty (30) days of the receipt of an application. a. The board may postpone its decision on the application for an additional period not to exceed fifteen days in order to conduct a further investigation of the application. b. The ordinance does not specify what happens if the supervisors do not take action within 45 days. 12. Building permits are approved by a vote of the board of supervisors at regular monthly meetings. a. The supervisors only vote to approve building permits after reviewing the permit applications. b. Building permits voted on are generally listed in the meeting minutes individually as either approved or denied. c. The chairman of the board of supervisors is responsible for signing approved building permit applications and building permits. Catalone, 00- 077 -C2 Page 4 1. This is typically done at the meetings when building permits are voted on. d. No roll call votes are noted in the meeting minutes. 13. The township does not employ a code enforcement officer or building inspector to review permit applications. 14. As early as 1991, Catalone had intentions of developing the two parcels of property on Teaberry Street extension for trailer home rental. a. Catalone was informed by the township sewer authority that the only requirement was that the trailer homes had to be connected to the township sewer system or have adequate on -lot sewage systems. b. In 1991, the township sewer system did not extend near Catalone's property located on Teaberry Street Extension. 1. Teaberry Street Extension was included in the original township sewer authority 1996 plans but was eliminated for budgetary concerns. 15. Beginning in 1998 and concluding in early 1999, the township sewer authority extended the sewer main line to a point that included Catalone's property on Teaberry Street Extension. 16. In early 1999, Catalone purchased four sewer tap -ins for his Teaberry Street Extension property for the trailer home development. a. Catalone installed two sewer tap -ins on his mobile home rental property. 17. After installing the sewer tap -ins, Catalone advertised the rental of his property for trailer home placement at various locations in and around Jay Township. a. The advertisements consisted of flyers placed on bulletin boards in local businesses. 18. In the summer of 1999, Thomas Wilson responded to Catalone's advertisement. a. During a meeting, Catalone informed Wilson that the monthly rental fee for placing a trailer on his property was $125.00 per month. b. Several weeks after their initial meeting, Wilson contacted Catalone and agreed to rent the property from Catalone. c. Catalone informed Wilson that he would need to obtain a building permit at the township building prior to placing a trailer on the lot. d. Catalone also informed Wilson that he would not have a problem obtaining a building permit because the lot met all of the township regulations. e. Wilson was aware through general knowledge that Catalone was a township supervisor prior to his contact with Catalone in relation to the rental property. 19. On September 9, 1999, Wilson submitted a building permit application to the township. Catalone, 00- 077 -C2 Page 5 a. The application indicated that the permit was to place a 12' x 60' mobile home on property located on Teaberry Street Extension. b. Wilson paid a $25.00 application fee. 20. Catalone's signature stamp appears as the approving township signature on Wilson's building permit application. a. At this time the township secretary was authorized to use Catalone's signature stamp. 21. The board of supervisors took no official action to approving the Wilson permit application. a There are no board of supervisors actions recorded in any meeting minutes approving Wilson's building permit. 22. Neither of the two supervisors who served with Catalone in 1999 recalls ever reviewing Wilson's building permit application or voting to approve a building permit for Wilson or anyone else to place a trailer home on property owned by Catalone. a. John Gray served as a supervisor from 1994 through 1999. b. Stanley Burke served as a supervisor from August 1999 through December 1999. 23. On September 21, 1999, Wilson was issued Building Permit No. 99 -9 -3 to place a trailer home on Catalone's property located on Teaberry Street Extension. 24. Catalone signed Building Permit No. 99 -9 -3 as chairman of the board of supervisors approving the permit. a. Catalone's signature stamp was affixed to the building permit. 25. Catalone did not disclose in any meetings of the board of supervisors that Wilson was obtaining a building permit to place a trailer home on property owned by Catalone. 26. Wilson moved his trailer home onto Catalone's property and began paying Catalone monthly rent in October 1999. 27. From October 1999 through August 2001, Catalone has received rent payments from Wilson totaling $2,875.00 as follows: October - December 1999- $ 375.00 January- December 2000- $ 1,500.00 January- August 2001- $ 1,000.00 Total: $ 2,875.00 28. In December 1999, Richard Mix, Jr. contacted Catalone regarding the rental of property on Teaberry Street Extension to locate a trailer. a. During this meeting, Catalone informed Mix that the monthly rental fee for placing a trailer on his property was $125.00 per month. b. Mix committed to placing his trailer on Catalone's property as a result of this initial meeting. Catalone, 00- 077 -C2 Page 6 29. On January 13, 2000, Mix went to the township building and applied for a building permit to place his trailer on Catalone's property. a. The application indicated that the permit was to place a 14' x 70' mobile home on property located on Teaberry Street Extension. b. Mix paid a $25.00 application fee. 30. Mix moved his trailer onto Catalone's property in late January or early February 2000. a. This was done prior to receiving a building permit from the township. b. Mix scheduled to have his home placed on Catalone's property anticipating that he would have already obtained his building permit and went through with the move without a building permit. 31. At the board of supervisor's meeting on February 17, 2000, township residents raised concerns regarding a second trailer being placed on Catalone's property and whether township ordinances were violated. 32. The supervisors denied Mix's building permit at the February 17, 2000, meeting until the solicitor could be contacted to advise on the matter. a. No vote was recorded in the meeting minutes deferring action. b. Catalone was not present for this meeting. 33. Jay Township Ordinance No. 93 -2, Subdivision and Land Development Ordinance, adopted on May 13, 1993, governing mobile home parks and mobile home park plans contains the following definitions: a. Mobile Home Lot - a parcel of land in a mobile home park, improved with necessary utility connections and other appurtenances necessary for the placement thereon of a single mobile home, which is leased by the park owner to the occupants of the mobile home erected on the lot. b. Mobile Home Park - a parcel or contiguous parcels of land which has been so designed and improved that it contains two or more mobile home lots for the placement thereon of mobile homes. 34. Article IV of Ordinance No. 93 -2, provides that mobile home parks receive prior approval of the board of supervisors prior to construction or alteration. a. Plans need to be prepared by a registered surveyor, engineer, or civil engineer. b. All mobile home parks shall have an area of at least five contiguous acres of land. 35. Catalone has never filed a mobile home park plan with Jay Township for Teaberry Street Extension lots. a. No mobile home park plans have ever been filed with the township. b. Catalone's property did not contain five (5) acres. Catalone, 00- 077 -C2 Page 7 c. Catalone's sewer taps were suitable for single family dwellings as well as for mobile homes. 36. In a March 15, 2000, letter to the supervisors, township solicitor Thomas Coppolo, addressed the situation involving the Catalone trailer park. a. Coppolo informed the board that the ordinance 93 -2 should be enforced in relation to all township mobile home parks, across the board, without limitation. 37. At the March 16, 2000, board of supervisors meeting the supervisors read Coppolo's March 15, 2000, letter and voted on Mix's building permit. a. The chairman of the board of supervisors, Nadine Pirazzi, called for a vote on whether to approve Mix's building permit. b. Catalone made a motion to accept the permit. c. Pirazzi advised that she felt that Catalone should abstain from the vote because the trailer was going to be placed on Catalone's property. d. Catalone advised that he would not abstain because his name was not on the permit. e. The motion failed by a 1 to 1 vote with one abstention. 1. Catalone voted in favor, Pirazzi opposed and Huff abstained. 38. In a March 23, 2000, letter to the supervisors Solicitor Coppolo advised that it was necessary to determine whether both of the trailers on Catalone's property were located on the same parcel of property or on separate parcels. a. Coppolo informed that if the trailers were located on separate parcels this would not be an issue because a trailer park plan is not required. 39. By letter dated April 17, 2000, to the solicitor, Pirazzi questioned the legality of Catalone participating in the March 16, 2000, vote and whether this was a conflict of interest. a. Pirazzi raised other questions regarding the township ordinance. 40. During the April 20, 2000, board of supervisors meeting the board tabled the Catalone issue to give the supervisors an opportunity to review a letter submitted by the solicitor regarding the issues raised by Supervisor Pirazzi. a. Catalone was present at this meeting. b. No official action is noted in the meeting minutes regarding this permit. 41. Solicitor Coppollo's April 20, 2000, letter opined as follows: a. The March 16, 2000, supervisors vote was not legal because there was not an affirmative vote and the vote did not take place within 45 -days of the submission of Mix's application. Catalone, 00- 077 -C2 Page 8 b. Catalone should have abstained from the March 16, 2000, vote due to a possible conflict of interest as defined by the State Ethics Act. c. Catalone should have filed a Mobile Home Park plan as specified by Ordinance 93 -2. d. The supervisors should review and amend Ordinance No. 93 -2 to address these issues. e. The supervisors should put aside personal differences and meet to discuss how to fairly resolve the situation concerning Mix's permit. 42. On May 2, 2000, all three supervisors met at Coppolo's office to resolve the issues concerning the Mix permit, Ordinance 93 -2 and Catalone's role. 43. Based on the advice of the solicitor the supervisors agreed on the following: a. The supervisors agreed to grant Mix's permit because no action was taken within 45 -days. b. The supervisors would review and amend the applicable ordinances to address what should happen to a permit if no action is taken within 45 -days. c. The supervisors agreed to enforce an amended Ordinance No. 93 -2 from this point forward in relation to any new mobile home parks or changes to existing mobile home parks. 1. This included Catalone's mobile home park. 44. Pirazzi, as chairman of the board of supervisors, approved Mix's building permit application on May 11, 2000. 45. At the May 18, 2000, board of supervisors meeting the supervisors discussed the outcome of their May 2, 2000, meeting at the solicitor's office. a. The meeting minutes indicate that Mix's permit is considered approved. b. There is no vote recorded approving Mix's permit. c. Catalone was not present at this meeting. 46. From February 2000 through August 2001, Catalone has received rent payments from Mix totaling $2,375.00 as follows: February -April 2000 $ 375.00 (Before permit approved.) May- December 2000 - $ 1,000.00 (After permit approved.) January- August 2001- $ 1,000.00 Total: $ 2,375.00 47. Catalone has received a private pecuniary benefit of $3,250.00 as a result of his participation in approving building permits for individuals to place mobile homes on property he owns resulting in rental payments to himself as follows: $ 2,375.00 (Rent from Wilson.) $ 375.00 (Rent from Mix before final approval.) Total: $ 2,750.00 Catalone, 00- 077 -C2 Page 9 III. DISCUSSION: At all times relevant to this matter, the Respondent, Victor Catalone, hereinafter Catalone, 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 allegation is that Victor Catalone, as a Supervisor for Jay Township, violated Section 3(a)/1103(a) of the Ethics Act when he used the authority of his office for a private pecuniary benefit when he participated in approving building permits for individuals to place mobile homes on property he owns, resulting in rental payments to himself. Pursuant to Section 3(a)/1103(a) of the Ethics Act, 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/Act 93 of 1998 as follows: Section 2/1102. 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. §402/65 Pa.C.S. §1102. Section 3(a)/1103(a) of the Ethics Act 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. As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are reproduced above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. Catalone is a Jay Township Supervisor and the current chairman of the three member board. In the township, any one of the three supervisors and the secretary/ treasurer have signature authority on township accounts. In addition, the secretary/ treasurer has the authority to use the signature stamp of the chairman of the board for township business. In a private capacity, Catalone owns several parcels of property in the township, two of which parcels are used for mobile home rentals. The township has an ordinance that requires a township building permit in order to place a mobile home on property within the Catalone, 00- 077 -C2 Page 10 township. Building permits are reviewed by the board of supervisors at their regular monthly meetings within 30 days of application unless postponed for an additional 15 days for further investigation. The board passes upon the building permits since the township does not employ a code enforcement officer or building inspector to review such applications. After Catalone installed sewer tap -ins for two mobile home rental properties, he advertised his rental properties for mobile home placement. In the summer of 1999, after Thomas Wilson responded to Catalone's advertisement, the two of them agreed upon a property rental of $125 per month for Wilson's mobile home. Catalone informed Wilson that a building permit would be necessary and that there would be no problem in obtaining the permit because the parcel met all of the township requirements. Wilson knew that Catalone was a township supervisor even before Wilson contacted Catalone regarding the rental property. In September, Wilson applied for a building permit which was issued to Wilson with Catalone's signature stamp indicating approval. The board of supervisors took no action to approve Wilson's permit application. Catalone never disclosed to the board that Wilson obtained a building permit to place his mobile home on property owned by Catalone. Wilson moved his mobile home on Catalone's property in October 1999 and began making rental payments to Catalone which totaled $2,875 for the period from October 1999 to August 2001. In December of 1999, Robert Mix, Jr. also contacted Catalone regarding the rental of a property for a mobile home. After Catalone informed Mix that the monthly rental was $125, Mix agreed to move his mobile home on Catalone's property. In January of 2000, Mix applied for a building permit to place his mobile home on Catalone's property. A few weeks later, Mix placed his mobile home on Catalone's property even though he had not received a building permit from the township. From February 2000 through August 2001, Catalone received rental payments totaling $2,375 from Mix. At a February 17, 2000, public board meeting, township residents raised concerns about a second mobile home being placed on Catalone's property in possible violation of township ordinances. At that meeting the supervisors deferred action on Mix's building permit pending review by the solicitor. Catalone was not present at that meeting. After the township solicitor advised that the township ordinance should have been enforced as to all township mobile home parks, the chairman of the board of supervisors called for a vote on the Mix building permit. After Catalone made a motion to accept the permit, the chairman advised Catalone to abstain because the mobile home was to be placed on his property. Catalone responded that he would not abstain on the basis that his name was not on the building permit. However, the motion failed by a 1 -1 -1 vote with only Catalone voting in favor of the motion. The chairman of the board by letter of April 17, 2000, wrote to the solicitor questioning the legality of Catalone's participation at the prior board meeting. The solicitor opined by letter that the March vote was illegal because there was not an affirmative vote and because the vote did not take place within 45 days of the submission of the permit application by Mix. In addition, the solicitor advised that Catalone should have abstained due to a possible conflict under the Ethics Act. Thereafter, all three supervisors met at the solicitor's office to discuss various issues including the Mix permit application, the township ordinance, and Catalone's role. The supervisors agreed to grant Mix's permit because no action was taken within the 45 day period of the ordinance. The chairman of the board then approved Mix's permit application on May 11, 2000. Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. Catalone, 00- 077 -C2 Page 11 The parties' Consent Agreement sets forth a proposed resolution of the allegations. The Consent Agreement proposes that this Commission find a technical violation of Section 3(a)/1103(a) as to Catalone's participation in the approval process resulting in the issuance of two building permits to individuals for placement of mobile homes which were on private lots being rented out by Respondent and a payment by Catalone of $400 to the Commonwealth of Pennsylvania within 30 days of the date of mailing of this Order. In applying the provisions of Section 3(a)/1103(a) of the Ethics Act in the instant matter, there were uses of authority of office by Catalone as to the permit approvals for Wilson and Mix to place their mobile homes on rental properties that are owned by Catalone. But for the fact that Catalone was a supervisor, he could not have given assurances to Wilson that his building permit application would be approved. In addition, Catalone's signature as supervisor appears on the approval of the permit application for Wilson. Regarding the Mix permit application, Catalone made a motion and voted in favor of that motion to approve Mix's mobile home permit application. Such actions by Catalone were uses of authority of office. See, Juliante, Order 809. Such uses of authority of office resulted in private pecuniary benefits to Catalone consisting of the rental payments he received from Wilson and Mix as to the properties he rented to those individuals for placement of their mobile homes. Accordingly, technical violations of Section 3(a)/1103(a) of the Ethics Act occurred when Catalone used the authority of office for private pecuniary benefits for himself when he took action to approve mobile home building permits on properties that he owned and rented to Wilson and Mix. We determine that the Consent Agreement submitted by the parties sets forth 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, Catalone is directed to make payment in the amount of $400 payable to the Commonwealth of Pennsylvania through this Commission within 30 days of the issuance of this Order. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Catalone, as a Supervisor in Jay Township, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Technical violations of Section 3(a)/1103(a) of the Ethics Act occurred when Catalone used the authority of office for private pecuniary benefits for himself when he took actions to approve mobile home building permits on properties that he owned and rented to two individuals. In Re: Victor Catalone ORDER NO. 1228 File Docket: 00- 077 -C2 Date Decided: 2/4/02 Date Mailed: 2/15/02 1 Catalone, as a Supervisor in Jay Township, committed technical violations of Section 3(a)/1103(a) of the Ethics Act when he used the authority of office for private pecuniary benefits for himself when he took actions to approve mobile home building permits on properties that he owned and rented to two individuals. 2. Per the Consent Agreement of the parties, Catalone is directed to make payment in the amount of $400 payable to the Commonwealth of Pennsylvania through this Commission within 30 days of the issuance of this Order a. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, DANEEN E. REESE, CHAIR