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In Re. David Updyke,
Respondent
N F41 L03 V 041
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20-035
Order No, 1797
12/1/21
12/2/21
Before: Nicholas A. Colafella, Chair
Mark R. Corrigan, Vice Chair
Roger Nick
Melanie DePalma
Michael A. Schwartz
Shelley Y. Simms
This is a final adjudication of the State Ethics Commission.
Procedurally, the Investigative Division of the State Ethics Commission conducted an
investigation regarding possible violation(s) of the Public Official and Employee Ethics Act
("Ethics Act"), 65 Pa.C.S. § 1101 et sue., by the above -named Respondent. At the commencement
of its investigation, the Investigative Division served upon Respondent written notice of the
specific allegations. Upon completion of its investigation, the Investigative Division issued and
served upon Respondent a Findings Report identified as, an "Investigative Complaint." A
Stipulation of Findings and a Consent Agreement were subsequently submitted by the parties to
the Commission for consideration. The Stipulated Findings are set forth as the Findings in this
Order. The Consent Agreement has been approved.
1. ALLEGATIONS:
That David Updyke, a public official/public employee in his capacity as a Member and
Vice -Chairman of the Board of Supervisors of Mount Joy Township, Adams County,
Pennsylvania, violated Sections 1103(a), 1105(b)(5), 1105(b)(6), 1105(b)(7), 1105(b)(8),
I I 05(b)(9), and I I 05(b)(I 0) of the State Ethics Act (Act 93 of 1998):
(1) When he used the authority of his public position for a private pecuniary benefit of
himself, a member of his immediate family, or a business with which he is
associated by participating in discussions and actions of the Board of Supervisors
resulting in the passage of ordinances establishing a "solar energy system" at a time
when he had a reasonable expectation that his property would be selected, thereby
resulting in a private pecuniary gain to himself;
Und ke, 20-035
Page 2
(2) When he failed to disclose on Statements of Financial Interests filed for the 2015,
2016, 2017, 2018, and 2019 calendar years all direct/indirect sources of income and
financial interests in any business for profit;
(3) When he failed to disclose on his Statement of Financial Interests filed for the 2015
calendar year: (a) gifts; (b) transportation, lodging, and hospitality; (c) office,
directorship or employment in any business; and (d) business interests transferred
to immediate family members; and
(4) When he failed to disclose on his Statement of Financial Interests filed for the 2017
calendar year any business interests transferred to immediate family members.
II. FINDINGS:
David Updyke ("Updyke") has served on the Board of Supervisors of Mount Joy Township
("Township"), Adams County, Pennsylvania, since January 4, 2010.
a. The Township is a Second Class Township governed by a five -Member Board of
Supervisors.
b. Members of the Board of Supervisors each receive annual compensation totaling
$1,875,00.
2. Updyke is the owner of Adams County Laser, LLC ("Adams County Laser"), located at
1789 Frederick Pike, Littlestown, PA 17340, and a farm located at 165 Updyke Road,
Littlestown, PA 17340.
a. Adams County Laser has been described as providing laser cutting services.
Records on file with the Pennsylvania Department of State Corporation Bureau include
LLC filings for Adams County Laser effective January 5, 2015.
a. Entity number 4321134 was assigned to Adams County Laser by the Pennsylvania
Department of State.
b. Updyke is reported as the sole organizer with a stated business address of 1789
Frederick Pike, Littlestown, PA 17340.
C. Updyke confirmed ownership of Adams County Laser to State Ethics Commission
Investigators on March 1, 2021, and May 19, 2021.
4. Updyke has owned property located at 165 Updyke Road, Littlestown, PA 17340, since at
least December 28, 2011.
a. Updyke uses this property for farming activities independent of Adams County
Laser.
Updyke, 20-035
Page 3
b. The 165 Updyke Road property consists of approximately 146.21 acres and is
known by Adams County Parcel ID 4 30I17-0041-000 as recorded in Deed Book
2513, page 145.
5. Early in 2016, Township officials and the Board of Supervisors began receiving inquiries
from Township residents about solar energy systems being included as a permitted use in
the Township Zoning Ordinance.
a. Inquiries were made of the Township Zoning Officer and the Board of Supervisors.
b. Township resident and landowner Bob Gitt ("Gitt") was an advocate for solar
energy systems in the Township.
6. Township Solicitor Susan Smith, Esquire ("Solicitor Smith") provided the Board of
Supervisors with a draft ordinance for solar energy systems as a result of inquiries being
made of Township officials during the Board of Supervisors March 3, 2016, meeting.
Minutes include the following information provided by Solicitor Smith:
a. Proposed Zoning Amendment — Solar Farms: Ms. Smith said that the Zoning
Officer has had several inquiries regarding solar farming. The draft ordinance is
specifically for the commercial use of the solar energy. Ms. Smith said it is
primarily for off -site sale. Ms. Smith will make revisions to the draft ordinance so
that it can be forwarded to County Planning and Development and also the
Township's Planning Commission for their 3 0 day review. The Board set the public
hearing date for April 21, 2016 at 7:05 p.m.
Present: Supervisors - John Gormont, Chairman; Dennis Bowman; Gil Clark;
Bradley Trostle; Solicitor - Susan Smith; Secretary — Sheri Moyer
Absent: David Updyke, Vice -Chairman.
7. Gitt appeared before the Board of Supervisors at meetings on April 7, 2016, and April 21,
2016, advocating in favor of the Board of Supervisors approving solar energy systems.
a. Gitt and members of his immediate family have at least three farm properties in the
Township.
b. Gitt provided the Board of Supervisors with information on solar energy and
discussed setback and buffer requirements.
C. Updyke is recorded as being absent from the April 7, 2016, meeting but present for
the April 21, 2016, meeting.
8. During the April 21, 2016, Board of Supervisors meeting, Updyke reported touring a solar
energy farm in Emmitsburg, Maryland, along with Supervisor John Gormont ("Gormont").
Updyke, 20-035
Page 4
a. Updyke and Gormont toured the facility without any direction from the Board of
Supervisors.
b. Supervisor Dennis Bowman also toured the facility independent of Updyke and
Gormont.
C. These tours were purportedly conducted to view the impact the facility has had on
the surrounding properties.
9. The Board of Supervisors held a public hearing to address adding energy systems as a
principal use on April 21, 2016.
a. Solicitor Smith presented the proposed ordinance which would add solar energy
systems as a permitted conditional use in any zoning district.
b. Updyke was present for the public hearing and participated in the Board of
Supervisors' decision to table the ordinance for discussion until June 5, 2016.
C. No discussion was recorded on the proposed ordinance during the June 2, 2016,
workshop meeting of the Board of Supervisors.
10. Minutes of the April 7, 2016, and April 21, 2016, meetings of the Board of Supervisors
include the following recorded discussions on a solar energy system ordinance:
a. April 7, 2016:
Public Comment: Bob Gitt, Baltimore Pike. Mr. Gitt spoke about the benefits of
solar energy and read a sentence from the latest Farm Magazine, Solar Energy
article, "Enough sunlight falls on the earth each hour to meet the world demand for
energy for one year." He also presented the Board with some graphics showing the
sun light in the County.
Present: Supervisors - John Gormont, Chairman; Gil Clark; Bradley Trostle;
Solicitor - Susan Smith; Secretary -- Sheri Moyer
Absent: David Updyke, Vice -Chairman; Dennis Bowman.
b. April 21, 2016, public hearing on adding solar to the zoning ordinance:
Ms. Smith said the proposed amendment is to add solar energy system as a principal
use and to provide for that as a conditional use in any zoning district.
Public Comment: Bob Gitt, 3854 Baltimore Pike, Littlestown, Pennsylvania
presented the Board with several contracts to lease his land dating back to 2000,
2010 and again this year. The previous contracts were dropped due to the
companies having financial difficulties. Mr. Gitt said in an effort to keep costs to
the developer down to review the setback and buffer requirements.
Undyke, 20-035
Page 5
Mr. Updyke said that both he and Mr. Gormont went to Emmitsburg to see the solar
farm there. He indicated that if you did not know that it was there you would never
see it. Mr. Gormont said that the fencing had mesh screening which eliminated the
need for buffer vegetation. Mr. Bowman agreed that the Board should review at the
setbacks and buffers.
Board Action: Mr. Bowman moved, seconded by Mr. Clark, to table the ordinance
for discussion at the June 5, 2016 workshop meeting. Motion carried unanimously.
Present: John Gormont, Chairman; David Updyke, Vice -Chair; Dennis Bowman;
Gil Clark; Bradley Trostle; Susan Smith, Solicitor; Sheri Moyer, Secretary
Absent: Bradley Trostle
Note: Bradley Trostle is listed as being both present for and absent from the
meeting.
11. The Adams County Office of Planning and Development ("ACOPD") reviewed and
provided comments on the proposed solar ordinance.
a. The ACOPD serves in an advisory capacity, providing non -binding
recommendations to municipalities within Adams County.
12. In correspondence dated April 22, 2016, and June 2, 2016, the ACOPD provided the
Township with review comments on the proposed solar ordinance.
a. The ACOPD did not object to solar energy systems being added to the Township's
zoning ordinance.
13. In the April 22, 2016, ACOPD correspondence to the Township Supervisors and the
Township Planning Commission, Robert Thaeler, Principal Planner for ACOPD, advised
that "The Office of Planning and Development does not object to the proposed regulation
of large-scale solar facilities in the manner envisioned in the proposed amendment. We
have provided a few recommendations designed to "fine-tune" the amendment to ensure
that the proposed standards do not get applied to individual property owners who wish to
install solar panels as an accessory component of their existing use of property."
14. The Board of Supervisors held a second public hearing on June 16, 2016, to take comments
on the proposed zoning change to add solar energy systems as a permitted principal use.
a. Updyke participated in a 4-0 vote to approve the zoning change upon completion
of the public hearing.
Supervisor Bradley Trostle is reported as being both present for and absent
from this meeting.
Updyke, 20-035
Page 6
15, Minutes of the .tune 16, 2016, public hearing and regular meeting of the Board of
Supervisors include the following recorded actions taken with regard to deliberating and
approving Ordinance 2016-02 relating to solar energy systems:
a. ,Tune 16, 2016:
Call to Order: Public Hearing Meeting, duly advertised, opened at 7:01 p.m.
Chairman, John Gormont presiding.
AN ORDINANCE AMENDING THE CODE OF THE TOWNSHIP OF MOUNT
JOY, ADAMS COUNTY, PENNSYLVANIA, CHAPTER 110, ZONING,
ARTICLE V PRINCIPAL USES AND 110 ATTACHMENT 4, TO PROVIDE
FOR SOLAR ENERGY SYSTEM AS A PRINCIPAL USE.
Ms. Smith stated that this is before the Board for public hearing for the second time.
There were several comments and revisions that the Board decided to include. It
has been amended and reviewed by both the County and Township Planning
Commissions. The revised document proposes to provide for solar energy as a
principal use.
Public Comment: None.
Mr. Bowman moved, seconded by Mr. Updyke, to close the public hearing. Motion
carried unanimously.
Adjournment: Closed Public Hearing: 7:02 p.m.
Supervisors' Regular Meeting Reconvened at 7:02 p.m.
Board Action: Mr. Bowman moved, seconded by Mr. Clark, to adopt Ordinance
2016-02. Motion carried unanimously.
Present: John Gormont, Chairman; David Updyke, Vice -Chair; Dennis Bowman;
Gil Clark; Bradley Trostle; Susan Smith, Solicitor; Jeanne Gormont, Office
Assistant
Absent: Bradley Trostle; Sheri Moyer, Secretary.
16. Updyke also participated in actions of the Board of Supervisors to approve Ordinance
2017-03 on November 2, 2017, and Ordinance 2019-03 on August 1, 2019.
a. Ordinance 2017-03 was passed by a 5-0 vote with Updyke participating.
b. Ordinance 2019-03 was passed by a 4-0 vote with Updyke participating in the
approval and making the motion to approve Ordinance 2019-03.
17, These three Ordinances collectively resulted in the following changes to the Township
Zoning Ordinance.
Updyke, 20-035
Page 7
a. Ordinance 2016-02 added solar energy systems as a permitted conditional use.
b. Ordinance 2017-03 approved the entire Township Zoning Ordinance, zoning map
and appendix 2017-03, which retained solar energy systems as a permitted
conditional use.
C. Ordinance 2019-03 amended the Township Zoning Ordinance to expand the
permitted conditional use time period for a solar energy project from one year to
four years.
18. The expansion of the conditional use time period (pursuant to Ordinance 2019-03) from
one year to four years could be beneficial to large-scale projects.
a. Ordinance 2019-03 provides solar energy developers with a significantly longer
time frame to complete a solar energy project.
b. At the time of the passage of Ordinance 2019-03, the Brookview Solar I Project
was the only proposed large scale solar energy project in the Township.
19. Ordinance 2019-03 was initiated by Jeremy Frey, attorney for NextEra Energy Resources,
through a request made to the Board of Supervisors on June 20, 2019.
a. Updyke participated in the Board of Supervisors' approval of the zoning
amendment after a public hearing held on it on August 1, 2019.
20. The Township received a conditional use application from Brookview Solar I dated
November 12, 2019, on or around December 5, 2019.
a. The conditional use application included the names and addresses of eighteen
properties comprising the proposed project.
b. Property owned by Updyke located at 165 Updyke Road, Littlestown, PA 17340,
was listed as one of the eighteen properties comprising the project.
C. Solicitor Smith presented the conditional use application to the Board of
Supervisors during its December 19, 2019, meeting.
21. Beginning in 2016, representatives of Austin, Texas, and Juno Beach, Florida, based solar
energy companies d/b/a Open Roads Renewables, Pioneer Green Energy, Keystone State
Renewables, Brookview Solar 1, and NextEra Energy Resources contacted Township
property owners seeking parties interested in having parts or all of their property included
in a planned solar energy system.
a. These contacts were made in person and by mail.
Updyke, 20-03 5
Page 8
b. Updyke did not contact property owners to be included in the project.
C. To date, approximately eighteen property owners, including Updyke, have
committed approximately 1,000 acres to the project.
22. Contracts were negotiated by the solar energy companies on a property by property basis.
a. Property owners entering into an agreement received an upfront payment to cover
the costs associated with easements and legal fees.
1. Easement payments were approximately $3,000.00 per property, plus any
additional terms negotiated.
b. Property owners intending to install solar panels on their property would receive a
stated payment per acre, per year during the project's option years and separate
negotiated amounts during the lease years once construction began.
1. Option year payments were typically the same for each landowner, starting
at $30 per acre per year up to $60 per acre per year in option year six.
23. Lease year payments per acre per year to property owners fell into several categories:
a. These included properties which NextEra Energy Resources had an option to buy.
b. Properties that had negotiated a flat fee of $800 or $900 per acre annually with a
2% payment escalator.
C. Six properties which had a negotiated price per acre during the initial option years
and lease years.
d. Contract terms were not shared by the solar energy companies with the property
owners due to included non -disclosure clauses.
24. Updyke was contacted by a representative of Brookview Solar I, who inquired about a
portion of Updyke's property being included in the proposed solar energy project in or
around March 2017.
a. These negotiations resulted in the execution of a lease between Updyke and
Brookview Solar I dated April 6, 2017.
b. This lease was signed by Updyke as landowner and Cyrus Tashakkori, President of
Brookview Solar 1.
25. Updyke negotiated and executed two leases for approximately 102 acres of his farm
property located at 165 Updyke Road as part of a 1,000-acre solar energy project being
developed by NextEra Energy Resources, LLC of Juno Beach, Florida.
Updyke, 20-035
Page 9
a. Updyke leased approximately 76.9 acres to Brookview Solar I on April 6, 2017,
and an additional 25.1 acres to Brookview Solar I on May 2, 2019, for a total of
approximately 102 acres.
b. Updyke's acreage was combined with seventeen other properties to create the
1,000-acre project.
26. Updyke's contracts fall into the category of properties which had a negotiated price per
acre during the initial option years and lease years.
a. This subclass of properties included properties owned by Gitt, Ken Hilbert, David
Kinsella, Glenn Snyder, and Millard Basehoar.
b. Property owners were not advised of other individuals' contracts due to non-
disclosure terms in each individual contract.
27. The option year payments scheduled to be made to Updyke were the same as those for four
of the other five contract holders.
a. Annual lease payments per acre were also consistent for the first ten years of the
lease.
b. Gitt and Updyke are scheduled to receive a greater per acre payment than the other
four property owners during years 11 through 29 of their respective agreements.
C. The other four contracts have identical payment terms.
28. Gilt's lease payment schedule has greater overall payments than other similar leases.
a. Gilt's property is the center of the project with the other properties connected by
location or utility transmission line.
29. Updyke's participation as a Member of the Board of Supervisors to approve the solar
energy ordinance affected all eighteen landowners involved in the project to the same
degree.
a. The financial benefit to each property owner was based on the specific contract
terms each negotiated with NextEra Energy Resources.
30. During the time the leases were being negotiated and he was participating as a Supervisor
to approve ordinances, Updyke did not disclose his relationship with Brookview Solar
I/NextEra Energy Resources.
a. Updyke's failure to disclose this relationship concealed his private business
interests during the planning phases of the project.
Updyke, 20-035
Page 10
31. Updyke submitted a recusal letter to the Board of Supervisors dated January 15, 2020,
recusing him from official actions relating to the Brookview Solar 1 Project less than one
month after the conditional use application was presented to the Board of Supervisors.
32. Prior to January 15, 2020, Updyke did not recuse himself from any discussions or actions
of the Board of Supervisors relating to solar energy system approvals by the Township.
a. By the date of his recusal letter, Updyke had executed two leases with the developer
for approximately 102 acres of his land.
b. These leases were executed on or about April 6, 2017, and May 2, 2019.
33. Updyke's recusal letter to the Township stated the following (verbatim, including any
typos):
a. "I hereby recuses [sic] myself from any discussion and voting on the upcoming
solar project from Nextera Energy. There is a possible financial benefit from the
implantation of their project."
b. Updyke did not disclose his two leases with Brookview Solar I/NextEra Energy
Resources as part of his recusal letter.
1. This failure to disclose concealed his private business relationship during
the time that planning work was being done on the project.
C. Updyke's failure to disclose his two executed leases with NextEra Energy
Resources in his recusal letter concealed anticipated income worth in excess of
$100,000 annually once construction began.
34. Since January 2020, the Board of Supervisors has held regular conditional use hearings on
the project application.
a. Updyke has not participated in these hearings.
b. The hearings are being held before the other four Members of the Board of
Supervisors and the Township Solicitor.
35. Updyke attended and participated in an executive session of the Board of Supervisors held
on July 16, 2020, to discuss litigation involving the project.
a. The executive session was called for by Solicitor Smith.
b. The exact information discussed was not memorialized in any fashion.
c. No actions were taken by the Board of Supervisors as a result of the executive
session.
Updyke, 20-035
Page 11
36. During the time period that the Board of Supervisors was considering the solar ordinances,
Updyke did not lobby the Board of Supervisors to approve solar energy ordinances.
a. Witnesses interviewed by a State Ethics Commission Investigator confirmed that
Updyke did not solicit or influence other property owners to be included in the
project.
37. Updyke, in his public position, took the following actions in relation to the approval of the
solar ordinances:
a. Updyke participated in discussions and actions of the Board of Supervisors in 2016
that resulted in Ordinance 2016-02 being approved on June 6, 2016, adding solar
energy systems as a permitted conditional use.
b. Updyke participated in discussions and actions of the Board of Supervisors in 2017
that resulted in an updated Township Zoning Ordinance being approved which
maintained solar energy systems as a permitted conditional use.
C. Updyke participated in actions of the Board of Supervisors in 2019 to approve
Ordinance 2019-03 on August 1, 2019, which extended the allowable conditional
use completion time for solar energy projects from one year to four years.
d. Updyke participated in a Board of Supervisors executive session held on July 17,
2020, to discuss ongoing litigation involving the Brookview Solar I project.
THE FOLLOWING FINDINGS RELATE TO ALLEGED DEFICIENCIES OF
STATEMENTS OF FINANCIAL INTERESTS FILED BY UPDYKE.
38. As a Supervisor since 2010, Updyke has annually been required to file a Statement of
Financial Interests ("SFI") form by May I", reporting financial interests for the prior
calendar year.
39. Updyke is annually provided with a blank SFI form by the Township administrative staff.
Blank SFI form packets include filing instructions and a toll -free number (1-800-
932-0936) to contact the State Ethics Commission regarding any filing questions.
b. Updyke did not contact the State Ethics Commission with any filing questions.
40. SFI forms filed by Updyke with the Township reported the following financial interests for
calendar years 2015 through 2019:
a. Calendar Year: 2019
Dated: 01/16/20 on form SEC -I REV. 01/20
Position: Supervisor
Occupation: Farmer/machinist
updyke, 20-035
Page 12
Real Estate Interests. None
Creditors: ACNE, 4.0%; PNC, 4.0%
Direct/Indirect Income: No Response
Office, Directorship, or Employment in any Business: Adams County Laser, Owner
All Other Financial Interests: None
b. Calendar Year: 2018
Dated: 01/18/19 on form SEC-1 REV. 0 1/ 19
Position: Supervisor
Occupation: Farmer/machinist
Real Estate Interests: No Response
Creditors. ACNB, 4.0%; PNC, 4.0%
Direct/Indirect Income: No Response
Office, Directorship, or Employment in any Business: Adams County Laser, Owner
All Other Financial Interests: None
C. Calendar Year: 2017
Dated: 01/02/18 on form SEC -I REV. 01/17
Position: Supervisor
Occupation: Farmer/machinist
Real Estate Interests: No Response
Creditors: ACNB, 4.0%; PNC, 4.0%
Direct/Indirect Income: None
Office, Directorship, or Employment in any Business: Adams County Laser, Owner
Financial Interest in any Business: No Response
Business Interest Transferred to Immediate Family Member: No Response
All Other Financial Interests: None
d. Calendar Year: 2016
Dated: 01/06/17 on form SEC-1 REV. 01/16
Position: Supervisor
Occupation: Farmer/machinist
Real Estate Interests: None
Creditors: ACNB, 4.0%; PNC, 4.0%
Direct/Indirect Income: None
Office, Directorship, or Employment in any Business: Adams County Laser, Owner
All Other Financial Interests: None
C. Calendar Year: 2015
Dated: 02/18/16 on form SEC-1 REV. 01/16
Position: Supervisor
Occupation: Farmer/machinist
Real Estate Interests: None
Creditors: ACNB, 4.0%; PNC, 4.0%
Direct/Indirect Income: No Response
Gifts: No Response
undyke, 20-035
Page 13
Transportation, Lodging, Hospitality: No Response
Office, Directorship, or Employment in any Business: No Response
Financial Interest in any Business: No Response
Business Interests Transferred to Immediate Family Member: No Response
41. Updyke's SFIs detailed in the previous finding contained the following reporting
deficiencies by calendar year:
a. Calendar Year 2019 form dated 01/16/20
Box #10 Direct/Indirect Income: No Response
Box #14 Financial Interest in any Business: Failed to report ownership in Adams
County Laser.
b. Calendar Year 2018 form dated 0l/18/19
Box #8 Real Estate Interests: No Response
Box #10 Direct/Indirect Income: No Response
Box #14 Financial Interest in any Business: Failed to report ownership in Adams
County Laser.
c. Calendar Year 2017 form dated 01/02/18
Box #8 Real Estate Interests: No Response
Box #10 Direct/Indirect Income: None Reported
Box # 14 Financial Interest in any Business: No Response
Box # 15 Business Interests Transferred to Immediate Family Member: No
Response
d. Calendar Year 2016 form dated 01/06/17
Box #10 Direct/Indirect Income: None Reported
Box #14 Financial Interest in any Business: Failed to report ownership in Adams
County Laser.
e. Calendar Year 2015 form dated 02/18/16
Box # 10 Direct/Indirect Income: No Response
Box #11 Gifts: No Response
Box 412 Transportation, Lodging, Hospitality: No Response
Box #13 Office, Directorship, or Employment in any Business: No Response
Box #14 Financial Interest in any Business: No Response
Box #15 Business Interests Transferred to Immediate Family Member: No
Response
Updyke, 20-035
Page 14
42. On March 1, 2021, Updyke provided the State Ethics Commission with personal business
documents for Adams County Laser and Federal Income Tax Returns filed for tax years
2015 through 2019.
a. These documents confirm Updyke's ownership of Adams County Laser and
Updyke's failure to report his ownership on SFI forms he filed.
b. Financial records provided detailed income Updyke received in excess of $1,300
annually which was not reported on SFI forms Updyke filed for the 2015 through
2019 calendar years.
43. W-2 Wage and Tax Statements, 1099 Miscellaneous Income forms, and other financial
information contained in Updyke's Federal Income Tax Returns detail the following
sources of income he failed to report on SFI forms for the 2015 through 2019 calendar
years:
a. Calendar Year: 2015
Dividends: $1,731.00
Adams County Laser: $8,838.00 (gross)
Farming: $58,407.00 (gross)
Mount Joy Township: $1,875.00 (W-2)
Precision Cut Industries, Inc.: $37,088.75 (W-2)
b. Calendar Year: 2016
Dividends: $1,452.00
Adams County Laser: $50,101.00 (gross)
Farming: $52,689,00 (gross)
C. Calendar Year: 2017
Dividends: $1,530.00
Adams County Laser: $111,237.00 (gross)
Land Rental: $4,307.00 (Schedule E)
Farming: $65,853.00 (gross)
Mount Joy Township: $1,875.00 (W-2)
Augmentation, Inc.: $19,101.50 (W-2)
Stulz Air Technology Systems, Inc.: $9,642.51 (W-2)
Western Industrial Machining, Inc.: $15,13 5.40 (W-2)
d. Calendar Year: 2018
Dividends: $1,697.00
Adams County Laser: $205,407.00 (gross)
Farming: $40,641.00 (gross)
Updyke, 20-035
Page 15
Mount Joy Township: $1,875.00 (W-2)
Western Industrial Machining, Inc.: $43,663,00 (W-2)
e. Calendar Year: 2019
Dividends: $1,520.00
Adams County Laser: $150,925.00 (gross)
Farming: $40,098.00 (gross)
Mount Joy Township: $1,875.00 (W-2)
Western Industrial Machining, Inc.: $46,107.25 (W-2)
44. Updyke asserted to State Commission Investigators that income he received from solar
energy companies was included in his gross farming receipts for tax reporting purposes.
a. Updyke failed to report farming as a direct/indirect source of income on SFIs filed
for the 2015 through 2019 calendar years.
45. A review of Updyke's reported income determined that a 2019 payment from NextEra
Energy Capital Holdings in the amount of $753.00 (1099 Miscellaneous Income form) was
the only income included on any of Updyke's tax returns from a known solar energy
company.
a. The NextEra Energy income is listed as being linked to Updyke's farming Schedule
F on his 2019 tax year filing.
46. A Schedule E form for Updyke's 2017 tax year filing reports "land rental Littlestown" for
the entire year with $4,307.00 in rents received.
a. The source of the rental income is not reported. This rental income was separate
from farming income included on Schedule F totaling $65,863.00.
47. SFI forms filed by Updyke for calendar years 2015 through 2019 contained the following
reporting deficiencies:
a. Calendar Year 2019 form dated 01/16/20
Box #10 Direct/Indirect Income. No Response
(Unreported)
Dividends: $1,520.00
Adams County Laser: $150,925.00 (gross)
Farming: $40,098.00 (gross)
Mount Joy Township: $1,875.00 (W-2)
Western Industrial Machining, Inc.: $46,107.25 (W-2)
Box #14 Financial Interest in any Business: None
Failed to report ownership in Adams County Laser.
Uodvke, 20-035
Page 16
b. Calendar Year 2018 form dated 01/18/19
Box #8 Real Estate Interests: No Response
Box #10 Direct/Indirect Income: No Response
(Unreported)
Dividends: $1,697.00
Adams County Laser: $205,407.00 (gross)
Farming: $40,641.00 (gross)
Mount Joy Township: $1,875.00 (W-2)
Western Industrial Machining, Inc.: $43,663.00 (W-2)
Box #14 Financial Interest in any Business: None
Failed to report ownership in Adams County Laser.
C. Calendar Year 2017 form dated 01 /02/18
Box 48 Real Estate Interests: No Response
Box #10 Direct/Indirect Income: None
(Unreported)
Dividends: $1,530.00
Adams County Laser: $111,237.00 (gross)
Land Rental: $4,307.00 (Schedule E)
Farming: $65,853.00 (gross)
Mount Joy Township: $1,875.00 (W-2)
Augmentation, Inc.: $19,101.50 (W-2)
Stulz Air Technology Systems, Inc.: $9,642.51 (W-2)
Western Industrial Machining, Inc.: $15,135.40 (W-2)
Box #14 Financial Interest in any Business: No Response
Failed to report ownership in Adams County Laser.
Box #15 Business Interests Transferred to Immediate Family Member: No
Response
d. Calendar Year 2016 form dated 01/06/17
Box #10 Direct/Indirect Income: None
(Unreported)
Dividends: $1,452.00
Adams County Laser: $50,101.00 (gross)
Farming: $52,689.00 (gross)
Box # 14 Financial Interest in any Business: None
Failed to report ownership in Adams County Laser.
Updyke, 20-035
Page 17
e. Calendar Year 2015 form dated 02/18/16
Box #10 Direct/Indirect Income: No Response
(Unreported)
Dividends: $1,731.00
Adams County Laser: $8,838.00 (gross)
Farming: $58,407.00 (gross)
Mount Joy Township: $1,875.00 (W-2)
Precision Cut Industries, Inc.: $37,088.75 (W-2)
Box #11 Gifts: No Response
Box #12 Transportation, Lodging, Hospitality: No Response
Box 413 Office, Directorship, or Employment in any Business: No Response
Failed to report ownership in Adams County Laser.
Box #14 Financial Interest in any Business: No Response
Failed to report ownership in Adams County Laser.
Box 415 Business Interests Transferred to Immediate Family Member: No
Response
48. Updyke filed an SFI form for the 2020 calendar year on April 15, 2021.
a. This form was filed approximately six weeks after the March 1, 2021, meeting that
Updyke had with a State Ethics Commission Investigator during which reporting
requirements were discussed with him.
b. Updyke asserted to a State Ethics Commission Investigator on May 19, 2021, that
he sought legal advice on reporting requirements to complete his 2020 calendar
year filing.
49. Updyke's SFI form filed for the 2020 calendar year disclosed the following financial
interests:
a. Calendar Year: 2020
Dated: 04/15/21 on form SEC -I (Rev. 01/21)
Position: Supervisor
Occupation: Farmer/machinist
Real Estate Interests: None
Creditor: ACNB, 3.5%; PNC Bank, 3.5%
Direct/Indirect Income: Western Industrial, Mount Joy Township, Adams County
Laser, Updyke Farms, Brookview Solar
Office, Directorship or Employment in any Business: Adams County Laser, owner;
Updyke, 20-035
Page 18
Western Industrial, employee; Updyke Farms, owner
Financial Interest in any Business: Adams County Laser, owner; Updyke Farms,
owner
All other financial Interests: None
50. Updyke received compensation in the amount of $1,875.00 annually from the Township
while failing to properly file SFI forms for the 2015 through 2019 calendar years.
III. DISCUSSION:
As a Member of the Board of Supervisors of Mount Joy Township ("Township"), Adams
County, Pennsylvania, since January 4, 2010, Respondent David Updyke, also referred to herein
as "Respondent," "Respondent Updyke," and "Updyke," has been a public official subject to the
provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa. C.S. § 1101 et
M.
The allegations are that Updyke violated Sections 1103(a), 1105(b)(5), 1105(b)(6),
1105(b)(7), 1105(b)(8), 1105(b)(9), and 1105(b)(10) of the Ethics Act:
(1) When he used the authority of his public position for a private pecuniary benefit of
himself, a member of his immediate family, or a business with which he is
associated by participating in discussions and actions of the Board of Supervisors
resulting in the passage of ordinances establishing a "solar energy system" at a time
when he had a reasonable expectation that his property would be selected, thereby
resulting in a private pecuniary gain to himself;
(2) When he failed to disclose on Statements of Financial Interests ("SFIs") filed for
the 2015, 2016, 2017, 2018, and 2019 calendar years all direct/indirect sources of
income and financial interests in any business for profit;
(3) When he failed to disclose on his SFI filed for the 2015 calendar year: (a) gifts; (b)
transportation, lodging, and hospitality; (c) office, directorship or employment in
any business; and (d) business interests transferred to immediate family members;
and
(4) When he failed to disclose on his SFI filed for the 2017 calendar year any business
interests transferred to immediate family members.
Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is
prohibited from engaging in conduct that constitutes a conflict of interest:
§ 1103. Restricted activities
(a) Conflict of interest. —No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
Undyke, 20-035
Page 19
65 Pa.C.S. § 1103(a).
The term "conflict of interest" is defined in the Ethics Act as follows:
§ 1.1.02. 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.
The term 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 Pa.C.S. § 1102.
Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or
"conflict of interest," 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, a public
official/public employee is prohibited 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.
A conflict of interest would not exist to the extent the "de minimis exclusion" and/or the
"class/subclass exclusion" set forth within the Ethics Act's definition of the term "conflict" or
"conflict of interest," 65 Pa.C.S. § 1102, would be applicable.
The de minimis exclusion precludes a finding of conflict of interest as to an action having
a de minimis (insignificant) economic impact. Thus, when a matter that would otherwise
constitute a conflict of interest under the Ethics Act would have an insignificant economic impact,
a conflict would not exist, and Section 1103(a) of the Ethics Act would not be implicated. See,
Kolb, Order 1322; Schweinsburg, Order 900.
In order for the class/subclass exclusion to apply, two criteria must be met: (1) the affected
public official/public employee, immediate family member, or business with which the public
official/public employee or immediate family member is associated must be a member of a class
consisting of the general public or a true subclass consisting of more than one member; and (2) the
public official/public employee, immediate family member, or business with which the public
official/public employee or immediate family member is associated must be affected "to the same
degree" (in no way differently) than the other members of the class/subclass. 65 Pa.C.S. § 1102;
see, Kablack, Opinion 02-003; Rubenstein, Opinion 01-007. The first criterion of the exclusion is
updyke, 20-035
Page 20
satisfied where the members of the proposed subclass are similarly situated as the result of relevant
shared characteristics. The second criterion of the exclusion is satisfied where the
individual/business in question and the other members of the class/subclass are reasonably affected
to the same degree by the proposed action. Kablack, supra.
Section 1105(b) of the Ethics Act and its subsections detail the financial disclosure that a
person required to file the SFI form must provide.
Subject to certain statutory exceptions, Section 1105(b)(5) of the Ethics Act requires the
filer to disclose on the SFI the name and address of any direct or indirect source of income totaling
in the aggregate $1,300 or more.
Subject to certain statutory exceptions, Section 1105(b)(6) of the Ethics Act requires the
filer to disclose on the SFI the name and address of the source and the amount of any gift or gifts
valued in the aggregate at $250 or more and the circumstances of each gift.
Subject to certain statutory exceptions, Section 1105(b)(7) of the Ethics Act requires the
filer to disclose on the SFI the name and address of the source and the amount of any payment for
or reimbursement of actual expenses for transportation and lodging or hospitality received in
connection with public office or employment where such actual expenses exceed $650 in an
aggregate amount per year.
Section 1105(b)(8) of the Ethics Act requires the filer to disclose on the SFI any office,
directorship or employment in any business entity.
Section 1105(b)(9) of the Ethics Act requires the filer to disclose on the SFI any financial
interest in any legal entity engaged in business for profit.
Section 1105(b)(10) of the Ethics Act requires the filer to disclose on the SFI any financial
interest in a business with which he is or has been associated in the preceding calendar year which
has been transferred to a member of his immediate family.
The term "financial interest" is defined in the Ethics Act as "[a]ny financial interest in a
legal entity engaged in business for profit which comprises more than. 5% of the equity of the
business or more than 5% of the assets of the economic interest in indebtedness." 65 Pa.C.S. §
1102.
As noted above, the parties have submitted a Consent Agreement and Stipulation of
Findings. The parties' Stipulated Findings are set forth above as the Findings of this Commission.
We shall now summarize the relevant facts as contained therein.
The Township is governed by a five -Member Board of Supervisors. Township Supervisors
receive annual compensation in the amount of $1,875 for serving on the Board of Supervisors.
Updyke has served on the Board of Supervisors since January 4, 2010.
Updyke, 20-035
Page 21
Updyke is the owner of Adams County Laser, LLC, which provides laser cutting services.
Updyke is also the owner of a property located at 165 Updyke Road, Littlestown, PA 17340, which
Updyke uses for farming activities. The 165 Updyke Road property consists of approximately
146.21 acres.
Early in 2016, the Township Zoning Officer and the Board of Supervisors began receiving
inquiries from Township residents about solar energy systems being included as a permitted use
in the Township Zoning Ordinance. During the March 3, 2016, meeting of the Board of
Supervisors, Township Solicitor Susan Smith, Esquire, provided the Board of Supervisors with a
draft of an ordinance that would amend the Township Zoning Ordinance to add solar energy
systems as a permitted principal/conditional use of land in the Township. The Board of
Supervisors set April 21, 2016, as the date for a public hearing on the draft ordinance. Updyke
was absent from the March 3, 2016, meeting of the Board of Supervisors.
Township resident Bob Gitt ("Resident Gitt") and members of his immediate family have
at least three farm properties in the Township. Resident Gitt appeared before the Board of
Supervisors at its meeting on April 7, 2016, and he provided the Board of Supervisors with
information on solar energy, discussed setback and buffer requirements, and advocated for
allowing land in the Township to be used for solar energy systems. Updyke was not present at this
meeting.
On April 21, 2016, the Board of Supervisors held a public hearing to address the issue of
whether to amend the Township Zoning Ordinance to add solar energy systems as a permitted
principal/conditional use of land. During the public hearing, Updyke reported that he and
Township Supervisor John Gormont had toured a solar energy farm in Emmitsburg, Maryland, to
view the impact the facility had on surrounding properties. The Board of Supervisors voted to
table the draft ordinance for discussion at the ,tune 5, 2016, workshop meeting of the Board of
Supervisors.
After the Adams County Office of Planning and Development reviewed the draft ordinance
and provided comments on it to the Board of Supervisors and the Township Planning Commission,
the Board of Supervisors held a second public hearing on June 16, 2016, to take comments on the
proposed change to the Township Zoning Ordinance. Upon completion of the public hearing,
Updyke participated in a unanimous vote of the Board of Supervisors to adopt Ordinance 2016-
02, which amended the Township Zoning Ordinance to add solar energy systems as a permitted
principal/conditional use of land.
In 2016, representatives of NextEra Energy Resources, LLC and/or its subsidiary,
Brookview Solar I (hereinafter collectively referred to as "the Solar Energy Company"), began
contacting Township property owners in person and by mail, seeking parties interested in having
part or all of their property included in a proposed solar energy project ("the Solar Energy
Project"). The Solar Energy Company negotiated contracts with property owners on a property
by property basis, and the Solar Energy Company did not advise property owners of the terms of
other contracts which had been negotiated. A property owner who entered into a contract with the
Solar Energy Company received an upfront payment of approximately $3,000 to cover the costs
associated with casements and legal fees. During the Solar Energy Project's six option years,
Updyke, 20-035
Page 22
property owners who intended to install solar panels on their properties would receive option year
payments. The option year payments were typically the same for each landowner, with the
payments starting at $30 per acre per year and increasing to $60 per acre per year by the sixth
option year. Once construction of the Solar Energy Project began, the property owners would
receive lease year payments. Some contracts provided for lease year payments at a flat fee of $800
or $900 per acre annually with a two percent payment escalator, and other contracts provided for
lease year payments at a negotiated price per acre.
In or around March 2017, Updyke was contacted by a representative of the Solar Energy
Company, who inquired about a portion of Updyke's property located at 165 Updyke Road being
included in the Solar Energy Project. After negotiations, Updyke signed a contract dated April 6,
2017, which leased approximately 769 acres of his property to the Solar Energy Company for the
Solar Energy Project.
On November 2, 2017, Updyke participated in a unanimous vote of the Board of
Supervisors to adopt Ordinance 2017-03, which updated the entire Township Zoning Ordinance
and retained solar energy systems as a permitted principal/conditional use of land. Updyke did
not disclose his relationship with the Solar Energy Company at that time.
On May 2, 2019, Updyke executed a second contract with the Solar Energy Company
which leased an additional 25.1 acres of his property located at 165 Updyke Road to the Solar
Energy Company. Updyke's two contracts leased a total of approximately 102 acres of his
property to the Solar Energy Company for the Solar Energy Project, and his acreage was combined
with the acreage of seventeen other landowners who signed contracts with the Solar Energy
Company, resulting in a total of 1,000 acres for the Solar Energy Project.
On August 1, 2019, Updyke participated in a unanimous vote of the Board of Supervisors
that approved Ordinance 2019-03, which amended the Township Zoning Ordinance to extend the
allowable completion time for conditional use solar energy projects from one year to four years.
Ordinance 2019-03 was initiated by Jeremy Frey, attorney for NextEra Energy Resources, LLC,
through a request made to the Board of Supervisors on June 20, 2019. Updyke did not disclose
his relationship with the Solar Energy Company at the time that he voted to approve Ordinance
2019-03.
Eighteen owners of land in the Township, including Updyke and Resident Gitt, signed
contracts with the Solar Energy Company for the Solar Energy Project. Updyke, Resident Gitt,
and four other individuals ("the Four Individuals") signed contracts which provided for lease year
payments at a negotiated price per acre. The other twelve landowners signed contracts which
contained different terms for the lease year payments.
The contracts signed by Updyke, Resident Gitt, and the Four Individuals had the same
terms with regard to the annual lease payment per acre for the first ten years of the lease. The
contracts signed by the Four Individuals had identical payment terms for the eleventh through the
twenty-ninth years of the lease. The contracts signed by Updyke and Resident Gitt provided for a
greater payment per acre per year for the eleventh through the twenty-ninth years of the lease. The
Updyke, 20-035
Page 23
lease payment schedule of Resident Gitt's contract provided for greater overall lease payments
than those provided for by other similar contracts.
On or around December 5, 2019, the Township received a conditional use application for
the Solar Energy Project from the Solar Energy Company. Solicitor Smith presented the
conditional use application to the Board of Supervisors during its December 19, 2019, meeting.
Updyke subsequently submitted a recusal letter dated January 15, 2020, to the Board of
Supervisors, by which he recused himself from official actions relating to the Solar Energy Project.
Updyke did not disclose his two leases with the Solar Energy Company in his recusal letter.
Updyke's failure to disclose his two leases with the Solar Energy Company concealed anticipated
income worth in excess of $100,000 annually once construction began on the Solar Energy Project.
Prior to January 15, 2020, Updyke had not recused himself from any discussions or actions of the
Board of Supervisors relating to solar energy system approvals by the Township. Updyke has not
participated in hearings held by the Board of Supervisors on the conditional use application for the
Solar Energy Project since January 2020.
As a Township Supervisor, Updyke is required to annually file an SFI by May I containing
information for the prior calendar year. Updyke either failed to provide a response to "Direct or
Indirect Sources of Income" or indicated that he had no reportable sources of income on his SFIs
for calendar years 2015 through 2019, despite having multiple reportable sources of income each
calendar year as detailed in Fact Finding 43. Updyke further failed to disclose his financial interest
in Adams County Laser, LLC, on his SFIs for calendar years 2015 through 2019.
In addition to failing to disclose all direct/indirect sources of income and his financial
interest in Adams County Laser, LLC, on his SFIs for calendar years 2015 through 2019, on his
SFI for calendar year 2015, Updyke failed to provide a response to: (1) "Gifts"; (2)
"Transportation, Lodging, Hospitality"; (3) "Office, Directorship or Employment in any
Business"; and (4) "Business Interests Transferred to Immediate Family Member." Updyke
further failed to provide a response to "Business Interests Transferred to Immediate Family
Member" on his SFI for calendar year 2017. (We note that although the Stipulated Findings
indicate that Updyke failed to provide a response to "Real Estate Interests" on his SFIs for calendar
years 2017 and 2018, such failure is not encompassed within the allegations in this matter.)
Having highlighted the Stipulated Findings and issues before us, we shall now apply the
Ethics Act to determine the proper disposition of this case.
The parties' Consent Agreement sets forth a proposed resolution of the allegations as
follows:
The Investigative Division will recommend the following in relation
to the above allegations:
a. That no violation of Section 1103(a) of the Public Official
and Employee Ethics Act, 65 Pa.C.S. § 1103(a), occurred in
relation to Updyke's participation in discussions and actions
of the Mount Joy Township Board of Supervisors because
Updyke, 20-03 5
Page 24
his participation and actions affected to the same degree
other similarly situated property owners by allowing them to
enter into contracts to lease their land for solar energy
projects.
b. That violations of Sections 1105(b)(5), (6), (7), (8), (9), and
(10) of the Public Official and Employee Ethics Act, 65
Pa.C.S. § 1105(b)(5), (6), (7), (8), (9), and (10), occurred
when Updyke failed to disclose all direct/indirect sources of
income and financial interest in any business for profit on
Statements of Financial Interests for calendar years 2015
through 2019; when Updyke failed to disclose gifts,
transportation, lodging, hospitality, office, directorship or
employment in any business, and business interests
transferred to immediate family members on his Statement
of Financial Interests for calendar year 2015; and when
Updyke failed to disclose any business interests transferred
to immediate family members on his Statement of Financial
Interests for calendar year 2017.
4. Updyke agrees to make payment in the amount of $1,250.00 in
settlement of this matter payable to the Commonwealth of
Pennsylvania, and forwarded to the Pennsylvania State Ethics
Commission, within thirty (30) days of the issuance of the final
adjudication in this matter.
5. In the event he has not already done so, Updyke agrees to file
complete and accurate amended Statements of Financial Interests
with Mount Joy Township, through the Pennsylvania State Ethics
Commission, for calendar years 2015, 2016, 2017, 2018, and 2019
within thirty (30) days of the issuance of the final adjudication in
this matter.
6. Updyke agrees to not accept any reimbursement, compensation or
other payment from Mount Joy Township representing a full or
partial reimbursement of the amount paid in settlement of this
matter.
7. The Investigative Division will recommend that the State Ethics
Commission take no further action in this matter; and make no
specific recommendations to any law enforcement or other authority
to take action in this matter. Such, however, does not prohibit the
Commission from initiating appropriate enforcement actions in the
event of Respondent's failure to comply with this agreement or the
Commission's order or cooperating with any other authority who
may so choose to review this matter further.
Updyke, 20-035
Page 25
a. The Respondent has been advised that as a matter of course,
all orders from the Commission are provided to the Attorney
General, albeit without any specific recommendations
pursuant to paragraph 7, above.
b. The Respondent has been advised that all orders become
public records and may be acted upon by law enforcement
authority(ies) as they deem appropriate.
C. The non -referral language contained in this paragraph is
considered an essential part of the negotiated Consent
Agreement.
Consent Agreement, at 2-4
We accept the recommendation of the parties for a finding that Updyke did not violate
Section 1103(a) of the Ethics Act in relation to his participation in discussions and actions of the
Board of Supervisors because his participation and actions affected to the same degree other
similarly situated property owners by allowing them to enter into contracts to lease their land for
solar energy projects.
Updyke used the authority of his office as a Township Supervisor when, on June 16, 2016,
he participated in a unanimous vote of the Board of Supervisors that approved Ordinance 2016-
02, which amended the Township Zoning Ordinance to add solar energy systems as a permitted
principal/conditional use of land. Updyke further used the authority of his office when, on
November 2, 2017, he participated in a unanimous vote of the Board of Supervisors to adopt
Ordinance 2017-03, which updated the entire Township Zoning Ordinance and retained solar
energy systems as a permitted principal/conditional use of land. The adoption of Ordinance 2016-
02 and Ordinance 2017-03 allowed Updyke to negotiate and execute two contracts to lease a total
of approximately 102 acres of his property at 165 Updyke Road to the Solar Energy Company for
the Solar Energy Project.
Based upon the Stipulated findings, the class/subclass exclusion to the statutory definition
of "conflict" or "conflict of interest" precludes a finding of a violation of Section 1103(a) of the
Ethics Act with regard to Updyke's uses of the authority of his office in this matter. This is because
the Board of Supervisors' adoption of Ordinance 2016-02 and Ordinance 2017-03 affected a
subclass of eighteen similarly situated Township property owners ---which included Updyke—to
the same degree by enabling them to negotiate contracts to lease their properties to the Solar
Energy Company for the Solar Energy Project.
Accordingly, we hold that Updyke did not violate Section 1103(a) of the Ethics Act, 65
Pa.C.S. § 1103(a), in relation to his participation in discussions and actions of the Board of
Supervisors because his participation and actions affected to the same degree other similarly
situated property owners by allowing them to enter into contracts to lease their land for solar energy
projects. Cf., Street, Order 1636-2.
Updyke, 20-035
Page 26
We agree with the parties, and we hold, that violations of Sections 1105(b)(5),(6),(7), (8),
(9), and (10) of the Ethics Act, 65 Pa.C.S. §§ 1105(b)(5), (6), (7), (8), (9), and (10), occurred when
Updyke failed to disclose all direct/indirect sources of income and financial interest in any business
for profit on SFIs for calendar years 2015 through 2019, when Updyke failed to disclose: (a) gifts;
(b) transportation, lodging and hospitality; (c) office, directorship or employment in any business;
and (d) business interests transferred to immediate family members on his SFIs for calendar year
2015, and when Updyke failed to disclose any business interests transferred to immediate family
members on his SFI for calendar year 2017.
As part of the Consent Agreement, Updyke has agreed to make payment in the amount of
$1,250.00 payable to the Commonwealth of Pennsylvania and forwarded to this Commission
within thirty (30) days of the issuance of the final adjudication in this matter.
Updyke agrees to not accept any reimbursement, compensation or other payment from the
Township representing a full or partial reimbursement of the amount paid in settlement of this
matter.
To the extent he has not already done so, Updyke has agreed to file complete and accurate
amended SFIs for calendar years 2015, 2016, 2017, 2018, and 2019 with the Township, through
this Commission, within thirty (30) days of the issuance of the final adjudication in this matter.
We determine that the Consent Agreement submitted by the parties sets forth a proper
disposition for this case, based upon our review as reflected in the above analysis and the totality
of the facts and circumstances.
Accordingly, per the Consent Agreement of the parties, Updyke is directed to make
payment in the amount of $1,250.00 payable to the Commonwealth of Pennsylvania and forwarded
to this Commission by no later than the thirtieth (301h) day after the mailing date of this adjudication
and Order.
Updyke is directed to not accept any reimbursement, compensation or other payment from
the Township representing a full or partial reimbursement of the amount paid in settlement of this
matter.
To the extent he has not already done so, Updyke is directed to file complete and accurate
amended SFIs for calendar years 2015, 2016, 2017, 2018, and 2019 with the Township, through
this Commission, by no later than the thirtieth (30th) day after the mailing date of this adjudication
and 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.
Updyke, 20-035
Page 27
IV. CONCLUSIONS OF LAW:
1. As a Member of the Board of Supervisors of Mount Joy Township ("Township"), Adams
County, Pennsylvania, since January 4, 2010, Respondent David Updyke ("Updyke") has
been a public official subject to the provisions of the Public Official and Employee Ethics
Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seq.
2. Updyke did not violate Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), in relation
to his participation in discussions and actions of the Township Board of Supervisors
because his participation and actions affected to the same degree other similarly situated
property owners by allowing them to enter into contracts to lease their land for solar energy
projects.
3. Violations of Sections 1105(b)(5), (6), (7), (8), (9), and (10) of the Ethics Act, 65 Pa.C.S.
§§ 1105(b)(5), (6), (7), (8), (9), and (10), occurred when Updyke failed to disclose all
direct/indirect sources of income and financial interest in any business for profit on
Statements of Financial Interests for calendar years 2015 through 2019, when Updyke
failed to disclose: (a) gifts; (b) transportation, lodging and hospitality; (c) office,
directorship or employment in any business; and (d) business interests transferred to
immediate family members on his Statement of Financial Interests for calendar year 2015,
and when Updyke failed to disclose any business interests transferred to immediate family
members on his Statement of Financial Interests for calendar year 2017.
In Re: David Updyke, File Docket: 20-035
Respondent Date Decided: 12/1/21
Date Mailed: 12/2/21
ORDER NO. 1797
David Updyke ("Updyke"), as a Member of the Board of Supervisors of Mount Joy
Township, Adams County, Pennsylvania, did not violate Section 1103(a) of the Public
Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1103(a), in relation to his
participation in discussions and actions of the Mount Joy Township Board of Supervisors
because his participation and actions affected to the same degree other similarly situated
property owners by allowing them to enter into contracts to lease their land for solar energy
projects.
2. Violations of Sections 1105(b)(5), (6), (7), (8), (9), and (10) of the Ethics Act, 65 Pa.C.S.
§§ 1105(b)(5), (6), (7), (8), (9), and (10), occurred when Updyke failed to disclose all
direct/indirect sources of income and financial interest in any business for profit on
Statements of Financial Interests for calendar years 2015 through 2019, when Updyke
failed to disclose: (a) gifts; (b) transportation, lodging and hospitality; (c) office,
directorship or employment in any business; and (d) business interests transferred to
immediate family members on his Statement of Financial Interests for calendar year 2015,
and when Updyke failed to disclose any business interests transferred to immediate family
members on his Statement of Financial Interests for calendar year 2017.
3. Per the Consent Agreement of the parties, Updyke is directed to make payment in the
amount of $1,250.00 payable to the Commonwealth of Pennsylvania and forwarded to the
Pennsylvania State Ethics Commission by no later than the thirtieth (30`h) day after the
mailing date of this Order.
4. Updyke is directed to not accept any reimbursement, compensation or other payment from
Mount Joy Township representing a full or partial reimbursement of the amount paid in
settlement of this matter.
5. To the extent he has not already done so, Updyke is directed to file complete and accurate
amended Statements of Financial Interests for calendar years 2015, 2016, 2017, 2018, and
2019 with Mount Joy Township, through this Commission, by no later than the thirtieth
(3Wh) day after the mailing date of this Order.
6. Compliance with paragraphs 3, 4, and 5 of this Order will result in the closing of this case
with no further action by this Commission.
Uydykc, 20-035
Page 29
Non-compliance will result in the institution of an order enforcement action.
BY THE COMMISSION,
Nicholas A. Colafell , Chai