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HomeMy WebLinkAbout1274 UrtzIn Re: Peter Urtz File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Frank M. Brown Susan Mosites Bicket Donald M. McCurdy Michael Healey 02- 024 -C2 Order No. 1274 4/4/03 4/18/03 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 investi9ation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investi9ation the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was not 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 Stipulation of Findings is quoted as the Findings in this Order. 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Urtz 02- 024 -C2 Page 2 I. ALLEGATION: That Peter Urtz, a public official /public employee, in his capacity as a supervisor for Potter Township, Beaver County, violated Sections 1103(a) and 1104(a) of the Ethics Act (Act 93 of 1998) when he used the authority of his office for a private pecuniary benefit, including but not limited to, participating in discussions and decisions of the board of supervisors regarding the settling of a lawsuit filed against the township in which he is a plaintiff; and when he failed to file Statements of Financial Interests for the 1999 and 2000 calendar years by May 1, 2000, and May 1, 2001, respectively. II. FINDINGS: 1. Peter Urtz has served as a supervisor for Potter Township, Beaver County, since January 4, 2000. a. Potter Township is a Second Class Township governed by a three - member board of supervisors. b. Urtz has served as Vice - Chairman of the board since January 7, 2002. 2. A development of homes known as Weatahome Hills subdivision exists in Potter Township. 3. On October 11, 1967, the Weatahome Hills plan of lots was approved by the township supervisors. a. The developers were informed that the supervisors required roads, streets, cross drains, and septic systems installed in accordance with the standards and specifications of township and state requirements. b. Additionally noted was that acceptance of the plan did not constitute acceptance of the streets and roads until installed according to township specifications and approved by the township engineer. 4. Peter Urtz has owned a home in the Weatahome Hills subdivision since at least 1996. 5. Potter Township had no existing ordinance addressing road specifications at the time the Weatahome Hills plan of lots was approved but enacted ordinances in 1968 and 1972, regarding streets. a. The board of supervisors enacted Ordinance No. 19, titled "An Ordinance of the Township of Potter, Beaver County, Pennsylvania, Setting Minimum Standards for Road Construction in Subdivisions within the Township of Potter" on October 9, 1968. b. The board of supervisors enacted Ordinance No. 23, titled "Subdivision and Land Development Ordinance" on March 28, 1972, which revised guidelines regarding minimum road standards for road construction in subdivisions. 6. The developers /owners of the Weatahome Hills plan of lots made inquiry to the township in 1968 and 1975 of the required improvement that would be necessary to have the township accept and maintain the streets and roads in the plan. a. The developers /owners after being made aware of the provisions of Ordinances No. 19 and 23 did not upgrade the roads to minimum standards. 7. Over several years the residents of the Weatahome Hills plan repeatedly requested the Urtz 02- 024 -C2 Page 3 township to accept ownership of the streets and roads in the plan (specifically Weaton Drive, Cross Street, and George Lane) due to poor road conditions and snowfall in the winter months. a. The township never formally accepted ownership of the roads, as the roads did not comply with requirements of Ordinance No. 19 or 23. b. Due to repeated requests, the township provided snowplowing services for the Weatahome Hills plan of homes as needed for emergency purposes. 8. In or about 1996, and prior to his election to the board of supervisors, Peter Urtz was instrumental in organizing residents of Cross Street interested in pursuing legal action against the township regarding acceptance of the roads in the plan. a. Gary Lerch assisted Urtz. b. Those involved were Urtz and his wife, Kelly Urtz, Gary Lerch, Gary Higby, Sue Higby, Jack Cloughley, Rhoda Cloughley, William Kyle, Virginia Kyle, Kathleen Curilovic, John Bungard, Linda Bungard, Rich Zeigler, Ellie Zeigler, Joe Tharp, and Donna Tharp. c. All of the interested individuals owned or own homes on Cross Street. 9. The law firm of McMillen, Urick, Tocci, and Fouse was retained regarding filing a lawsuit in association with the situation involving Cross Street George Lane, and Weaton Drive. a. Michael Jones was the attorney assigned the case from McMillen, Urick, Tocci, and Fouse. b. Urtz became the point -of- contact for Jones in relation to the lawsuit. 10. Jones filed a Mandamus Action (No. 10506 of 1997) on behalf of the plaintiffs in the Prothonotary's office of the Beaver County Courthouse on May 12, 1997. a. The filing was amended as an Action for Declaratory Judgment on May 16, 1997. b. Urtz was the first plaintiff listed on each document filed. 11. The Action for Declaratory Judgment filed by Jones on behalf of Urtz and the other plaintiffs asserted the following: a. The streets and roads contained within the Weatahome Hills plan were offered for dedication by the developers /owners on several occasions; b. The board never passed an ordinance or resolution accepting the offer of dedication; c. The township had undertaken acts of dominion and control over Cross Street, Weaton Drive, and George Lane by routine snow and ice removal and repair during the winter continuously for over twenty years evidencing the township's intent of acceptance by implication; d. The township's acceptance of Cross Street, Wheaton Drive, and George Lane have caused the roads to become public for which the township have [sic] a duty to construct, repair, and maintain; Urtz 02- 024 -C2 Page 4 e. The township had failed to perform the public duty after several demands by the plaintiffs. 12. The township was provided legal representation through Employers Mutual Casualty (EMC) Insurance, Potter Townships liability insurance carrier. a. The township was represented by the law firm of Marshall, Dennehey, Warner, Coleman, and Goggin. 1. Paul D. Krepps was assigned as the attorney of record. 13. From May 16, 1997, through December 31, 1999, the lawsuit was primarily in the discovery phase. 14. Between 1997 and December 1999 Krepps provided his opinion to the board of supervisors at various meetings regarding the legal issues of the suit and the probability of success of the plaintiffs. a. Although Krepps believed that the township could defend its position at trial, Krepps recommended to the board that the case be settled. 1. Krepps recommended the township settle the case in order for the township to maintain some control in the outcome of the lawsuit. b. The supervisors at that time took no action on Krepps' recommendation. 15. Peter Urtz took office in January 2000 as a Potter Township Supervisor. a. After taking office Urtz remained as the plaintiff representative in the lawsuit against the township. 16. At the time Urtz took office, Lauren Patton, also a resident in the Weatahome Hills area, served on the board of supervisors. a. Patton served as a supervisor from May 1999 until resigning effective September 12, 2001. b. A portion of Weaton Drive that accesses Patton's property and a portion of Patton's front footage is located within the Weatahome Hills plan. c. Patton's mailing address is 591 Frankfort Road, Monaca, Pa 15061. 17. Dennis DiMartini, the Potter Township Solicitor from approximately February 1998 through December 2001, participated in various meetings and discussions regarding the lawsuit. a. DiMartini acted as a liaison between the board and Krepps. b. DiMartini kept the board aware of various township situations, including the Weatahome Hills lawsuit, through the distribution of a written solicitor's report on a monthly basis. c. A copy of the solicitor's report was provided to each supervisor. 18. After Patton took office in May 1999, DiMartini deleted all information pertaining to the Weatahome Hills lawsuit from the monthly solicitor's report provided to the members of Urtz 02- 024 -C2 Page 5 the board of supervisors. a. DiMartini provided this information as an Addendum to the solicitor's report. 1. Patton was not provided with the addendums. b. DiMartini deleted the information due to a potential conflict of interest for Patton as a result of Patton owning property adjacent to one of the roads in question in the lawsuit. c. The deletion was made with Patton's knowledge and consent. d. Patton did not participate in meetings and /or discussions, including executive sessions, associated with the Weatahome Hills lawsuit prior to Urtz's election to the board of supervisors. 19. After Urtz took office, DiMartini recommended the deletion of all information related to Weatahome Hills lawsuit from Urtz's copy of the monthly solicitor's report due to Urtz's potential conflict of interest as a plaintiff in the lawsuit. a. Urtz desired that all information regarding the lawsuit be included in his copy of the solicitor's report. b. Urtz participated in discussions of the board, including legal meetings with the board's attorneys. 20. After receiving Urtz's direction, in or about July 2001, DiMartini included information addressing the Weatahome Hills lawsuit in each supervisor's copy of the monthly solicitor's report. a. DiMartini began providing the same information to Patton since he felt it was counterproductive to continue to exclude Patton from the information due to Urtz receiving the information. 1. DiMartini's July 25, 2001, solicitor's report to the township included the following: "The Solicitor's Report on this file, previously deleted from the Solicitor's Reports and appearing as an Addendum to the Solicitor's Report, will now appear in this Report, despite the actual or apparent conflict of interest of Supervisors Patton and Urtz and will continue to so appear until further notice. This procedure is being taken at the direction of Supervisor Urtz, and as such, it appeared counter - productive to continue to exclude Supervisor Patton from the information under the circumstances. This procedure can no longer insure the integrity of the information imparted and advice rendered but appears to be required under the circumstances." 21. Between the dates of January 4, 2000, and March 21, 2000, various telephone conferences, legal research, and case review occurred primarily between DiMartini and Krepps regarding the township's position in relation to the lawsuit. a. These conferences, etc., were reported in DiMartini's solicitor's report provided to Urtz. 22. Urtz was also in contact with DiMartini on at least one occasion between the dates of January 4, 2000, and March 21, 2000, to arrange a meeting between the parties Urtz 02- 024 -C2 Page 6 involved in the lawsuit. 23. On March 22, 2000, the board of supervisors held a public meeting of the parties involved to explore the possibilities of an amicable settlement. a. Urtz was present as both a township supervisor and plaintiff in the lawsuit against the township. b. Present and representing the township at the meeting were the other board members, DiMartini, Eugene Mazza (township engineer), and Krepps. c. Attorney Jones was representing the Plaintiffs. 1. In correspondence from DiMartini to Krepps and Jones dated August 6, 2001, Di Martini noted that Urtz was also present as a representative of the plaintiffs. d. Urtz was the only plaintiff present at the meeting. 24. During the March 22, 2000, meeting Urtz, as a representative of the plaintiffs, presented a Cross Street history and proposal to the Board of Supervisors which would be acceptable to the plaintiffs. a. Urtz proposed that the residents of Cross Street that filed suit against Potter Township would discontinue litigation if the township accept as a township road the portion of the roads in the plan beginning with the intersection of Cross Street and Weaton Drive down Cross Street to George Lane and out to Route 18. b. Additionally proposed was that once accepted, the road would be brought up to specifications over a three year period. c. Nowhere in the proposal was any offer by the plaintiffs to share in the cost of improvements to the roads in question. 25. Discussion at the March 22, 2000, meeting regarding a potential settlement of the lawsuit focused on the following terms: a. The township would take action to immediately accept all streets in the plan as public roads in their current condition. b. The township would immediately stabilize the lower portion of Cross Street and begin maintenance and treatment of all roads in the plan as all other public roads in the township are maintained and treated, except for the following: 1. Beginning with the 2001 budget, the township would allocate an amount of funds as a line item exclusive to the improvement of the plan roads to current township specifications. 2. The township would continue the allocation in the same amount in all future budgets until all the plan roads were improved to current township specifications. c. The plaintiffs would sign a release absolving the township of any further liability related to the lawsuit (except any action necessary to enforce the terms of the settlement). Urtz 02- 024 -C2 Page 7 d. The plaintiffs would take the necessary action to discontinue the suit but would not make any contributions and would never make any contribution to the improvements. 26. On April 7, 2000, correspondence was sent to DiMartini and Jones from Krepps which outlined the proposed conditions. a. Jones responded with correspondence to Krepps and Di Martini dated April 13, 2000, in which he agreed with the terms outlined by Krepps' April 7, 2000, correspondence. 27. From approximately April 14, 2000, until August 10, 2000, no actions were taken by the township to settle the lawsuit. 28. Jones sent correspondence to Krepps dated August 11, 2000, inquiring to the status of the settlement regarding the lawsuit. 29. On September 13, 2000, the board of supervisors (including Urtz) met in executive session with Di Martini and township engineer Mazza to discuss the potential settlement and legal authority, whether the local Councils of Government (COG) should be utilized as part of the settlement. a. Mazza proposed a verbal cost estimate of $40,000.00 to bring only George Lane to Cross Street and Cross Street up to current township specifications through the utilization of the local COG regarding supplies, equipment, and labor. 1. Mazza had previously provided a written estimate of $223,675.00, dated June 9, 1999, for the upgrade of George Lane, Cross Street, and Weaton Drive to DiMartini at DiMartini's request. 2. The initial estimate addressed all three roads in the plan and did not provide for the use of COG resources. b. Urtz, attending the session as member of the board of supervisors, advised that he would recommend to the plaintiffs that they share in the cost of the improvements based on front foot assessment but excluding double assessment for any person fronting on both streets. c. Urtz was the only representative of the plaintiffs present at the meeting. 30. In a September 19, 2000, letter to Krepps, Jones advised of Urtz's role to expedite the resolution of the lawsuit: "I recently spoke with Mr. Urtz who proposed to modify some of the terms of our prior agreement in order to expedite the resolution of this litigation and hopefully appease some of the concerns of the supervisors. I understand first that the township engineer has estimated that the cost to repair Cross Street is in the range of forty thousand ($40,000) dollars. To help offset that cost (by nearly one -half) and to differentiate this situation from other private road problems, we would propose that all residents who abut Cross Street pay a front foot assessment of ten ($10.00) dollars per foot for the improvement. Those who cannot afford to pay could be liened. We would still request as part of a release and prior to settlement and discontinuance of the action that the township immediately take over the road." 31. The board of supervisors took no action on the information presented at the September Urtz 02- 024 -C2 Page 8 13, 2000, executive session. 32. From approximately September 20, 2000, to May 16, 2001, no actions were taken by the board of supervisors to settle the lawsuit. 33. Krepps, in his capacity as counsel to the township, directed correspondence dated May 17, 2001, to Urtz, in Urtz's capacity as a township supervisor, regarding scheduling a meeting to confirm the settlement terms, sign the release, and close the files on the lawsuit. a. The board of supervisors took no immediate action regarding Krepps' correspondence. 34. On or about June 12, 2001, Jones filed a Petition to Enforce a Settlement in the Beaver County Court of Common Pleas. a. Urtz, as a representative of the plaintiffs, signed the Verification that the averments made in the Petition were true and correct based on his personal knowledge, information, and belief. b. No other representative of the plaintiffs signed the Verification. 35. On July 3, 2001, DiMartini twice spoke separately with Supervisors Lytle and Patton, and Counsel Krepps via the telephone regarding the motion to enforce the lawsuit settlement, the status of the case, and the potential effects of the motion and settlement. a. DiMartini did not discuss the settlement with Urtz at that time. 36. Township Engineer Mazza provided DiMartini a written cost estimate regarding upgrading Cross Street and George Lane through correspondence dated July 5, 2001. a. The estimated cost provided by Mazza totaled $94,645.00 through the utilization of COG supply prices, equipment, and labor. 37. On July 5, 2001, DiMartini held separate telephone conferences with Krepps and Urtz regarding the lawsuit. a. DiMartini's conversation with Urtz specifically addressed the motion to enforce the lawsuit settlement, the status of the case, and the potential effects of the motion and settlement. b. DiMartini's conversation with Urtz occurred in Urtz's capacity as a township supervisor. 38. On July 19, and July 25, 2001, DiMartini met in executive session with the board of supervisors to discuss the current status of the case and explore the board position in regard to litigating or settling the case. a. Urtz was not present at the July 19, 2001 meeting but was present on July 25, 2001. 39. Township Engineer Mazza provided a revised, written estimate to DiMartini, dated July 25, 2001, regarding the cost estimates and timetable for the improvement of all and portions of roads in the Weatahome Hills plan. a. DiMartini had requested the revised estimate during a telephone conference Urtz 02- 024 -C2 Page 9 with Mazza on July 10, 2001. b. Mazza estimated a total cost of $94,645.00 to improve Cross Street and George Lane with the utilization of COG resources. c. Mazza estimated a total cost of $121,558.00 to improve Cross Street, George Lane, and Weaton Drive with the utilization of COG resources. 40. After the July 19, and July 25, 2001, executive sessions, Supervisors Urtz and Lytle were in favor of settling the suit. a. Supervisor Patton was opposed to the settlement. 41. DiMartini's solicitor's report dated July 25, 2001, discussed potential conflicts of interests of supervisors Urtz and Patton in relation to the Weatahome Hills lawsuit. "An alarming situation occurred with the seating of Lauren A. Patton to the Board. Supervisor Patton is an owner of property abutting the rear portion of Weaton Drive, one of the private roadways possibly included within the declaratory judgment action. Peter W. Urtz assumed his position to the Office of Supervisor in January 2000. Supervisor Urtz is an owner of property abutting to one of the private roadways included within the declaratory judgment action and the lead Plaintiff of the lawsuit. The solicitor researched the this issue in detail. Section 603 of the Second Class Township Code, 53 P.S. §65603, specifies a quorum is two members of the three member Board and a vote of a majority of the entire Board (two votes of three member Board) is necessary to transact any business. The Ethics Act, 65 Pa.C.S. §1101, et seq., regulates and restricts the ability of a supervisor from voting on official township business. Section 1103 of the Ethics Act, 65 Pa.C.S. §1103, prohibits a public official from engaging in conduct that constitutes a conflict of interest. Section 1103(a) of the Ethics Act, 65 Pa.C.S. §1103(a), defines a conflict of interest as the use by a public official of the authority of his office for the private pecuniary benefit of himself. Supervisor Urtz appears to have a conflict of interest due to being a named party to the lawsuit and an owner of property that is adjacent to one of the private roadways included within the declaratory judgment action. Supervisor Patton would appear to either have an actual conflict of interest due to being an owner of property that is adjacent to one of the private roadways included within the declaratory judgment action (a detail not resolved by the official pleadings of the lawsuit is whether the rear portion of Weaton Drive is included within the streets included in the lawsuit) or an apparent conflict of interest due to being an owner of property that is adjacent to one of the private roadways feeding into one of the private roadways included within the declaratory judgment action. If Supervisor Patton has an actual conflict, a majority on the Board appears to have a conflict of interest as of January 2000. The solicitor is of the opinion that a vote by Supervisor Patton and Supervisor Urtz to accept any of the three roads as a public road will result in a pecuniary benefit to that supervisor at the expense of the township funds to bring the roads up to township specifications; that vote by each will thereby constitute a conflict of interest. However, the opinion of the solicitor is not the opinion that counts; the decision of the supervisor initially, and the Commonwealth Ethics Commission in the event of an inquiry or complaint, controls the outcome. Either supervisor may request an opinion from the Ethics Commission regarding his or her status on this matter. Section 1103(j) of the Ethics Act, 65 Pa.C.S. §1103(j), requires that an official, who is required to vote on a matter that would result in a conflict of interest, to declare the nature of his interest and to abstain from voting on the matter. The Ethics Act provides for penalties for a violation of the Ethics Act. She may request an opinion from the Urtz 02- 024 -C2 Page 10 Ethics Commission regarding her status on this matter. However, that section also provides that if the board would be unable to take any action on a matter, due to the number of members required to abstain makes the required vote for approval (two on the three member board) unattainable, then each of such members with a conflict, after making his declaration of the nature of his interest, will be permitted to vote even though each has a conflict of interest. The result is that a decision on this matter made after January 2000 may be made by the combined vote of two members of this board who appear to have a conflict of interest." 42. Patton submitted her resignation as a township supervisor effective immediately at the September 12, 2001, public meeting of the board of supervisors. 43. Urtz provided a statement to an Ethics Commission investigator during which he asserted that he obtained an oral opinion from an Ethics Commission employee who provided information as how to proceed, including abstaining from a vote on the matter, and if there was a tie vote, he could vote to break the tie after stating the reason for a conflict. a. Urtz was also provided with documents relating to class exceptions. 44. DiMartini presented to Jones and Krepps the terms of the settlement as proposed by the board of supervisors in electronic correspondence (e -mail) dated July 30, 2001. a. The majority of the terms were previously addressed in correspondence from Krepps dated April 7, 2000, and Jones dated September 19, 2000. b. Also proposed, in part, were the following terms and conditions: 1. The scope of the lawsuit would be limited to the front portions of George Lane and Weaton Drive up to and all of Cross Street. 2. The township would immediately take action to improve the roads and recover a portion of the cost of improvement by an immediate front foot assessment of $20.00 per foot against all property and property owners on the effected roads. 45. On or about August 6, 2001, DiMartini issued written correspondence to Krepps and Jones providing a summary of events including potential settlement terms and conditions. a. Noted in the correspondence is that Urtz expressed a willingness to recommend to all plaintiffs in the lawsuit to accept the revised terms. b. Also noted was that Urtz indicated that he would attempt to secure a meeting of Jones and the plaintiffs to discuss the revised terms as soon as possible. c. DiMartini's letter stated that he had discussed the matter separately "...with the Board and Supervisor Urtz and Attorney Jones." 46. Jones responded to DiMartini's settlement proposal, as agreed upon by a majority of the supervisors, including Urtz, in correspondence dated August 17, 2001. a. Jones noted in the correspondence that he met with Urtz who had been in contact with all of the plaintiffs regarding the July 30, 2001 proposal to settle the litigation. b. The plaintiffs were said to be in general agreement with the proposal with the Urtz 02- 024 -C2 Page 11 following exceptions: 1. The elimination of Weaton Drive from the settlement due to the fact that none of the plaintiffs reside on Weaton Drive and need not use Weaton Drive to access Cross Street. 2. The degree of improvement performed may remain in the discretion of the township; however, the plaintiffs wanted drainage and paved roads. 3. The plaintiffs would agree to a $10.00 front foot assessment not to exceed 150 feet per property owner. 4. The plaintiffs would agree to execute right of way agreements for five feet along both sides of the settlement roads with all properties disturbed returned to their previous condition with the exception of the five -foot additional right of way. 47. By September 26, 2001, DiMartini drafted a potential settlement agreement and a resolution to approve the settlement agreement. a. The resolution to approve the settlement agreement was to be presented to the board of supervisors at the September 26, 2001, public meeting for approval. 48. At the time of the September 26, 2001 public meeting, no appointment had been made to fill the vacant supervisor's seat caused by Patton's resignation. a. Urtz and Lytle were the supervisors present at the meeting. 49. During the September 26, 2001 public meeting, DiMartini addressed the lawsuit and potential settlement that had been reached. a. Patton was present in the audience as a citizen of the township and questioned why the board felt settling was the right thing to do. 50. Urtz, in his capacity as a township supervisor, is documented in the September 26, 2001, meeting minutes as responding to Patton's questions: "The board feels this is in the best interest of the township. The township in the past did not fulfill their obligations with the enforcement of the ordinances. Therefore, leaving the people of Cross Street and other streets in Potter Township with unbearable and unsafe road conditions. It was intended to be a Public Road from beginning when the township approved the subdivision, development, and zoning permits." a. Urtz is also quoted in the minutes as stating, "Mr. Urtz believes that the residents of Cross Street would win this law suit if taken to court." 51. Prior to voting on the resolution to settle the lawsuit, Urtz declared that he had a conflict of interest regarding the lawsuit and resolution and must abstain from the vote. a. Urtz stated that the chairman of the board is not authorized to propose a motion. b. Urtz, as vice chairman, then made the motion to accept the resolution. c. Supervisor Lytle voted in favor of the motion. d. Since the board could not take action with only one vote, Urtz voted in favor of Urtz 02- 024 -C2 Page 12 the resolution after noting his conflict. 1. Urtz's action was in compliance with 65 Pa.C.S. §1103(j). 52. Urtz made the motion which was seconded by Lytle, to adopt Resolution 4 -2001, at the September 26, 2001 public meeting of the board of supervisors. a. Resolution 4 -2001 titled, "A Resolution of the Township of Potter in the County of Beaver and Commonwealth of Pennsylvania Approving the Terms of a Settlement Agreement with Owners of Real Property in the Weatahome Hills Plan of Lots in the Township, Authorizing the Settlement of a Property in Said Plan, and Authorizing the Taking Over of and Improvement to Cross Street and a Portion of George Lane in Said Plan in Compliance with the Terms of the Agreement or Any Amendment Thereto." b. The motion passed by a vote of 2 -0. Urtz and Lytle voted. 53. Following the September 26, 2001, meeting, DiMartini received information that the residents of Weaton Drive had no desire to have access to Cross Street nor did they want residents of Cross Street to have access to Weaton Drive. a. Residents of Weaton Drive did not want the increased burden of maintenance of Weaton Drive as a result of traffic from Cross Street residents. b. On or about October 3, 2001, DiMartini sent correspondence to Krepps and Jones addressing this situation. c. DiMartini expressed his desire to add a provision that the plaintiff residents of Cross Street relinquish their right of ingress and egress over Weaton Drive. 1. DiMartini addressed the issue in an Addendum to Settlement Agreement and included said addendum with the correspondence. 54. Jones responded to DiMartini's request through correspondence dated October 5, 2001, advising DiMartini of the following: a. Jones and Urtz had reviewed the settlement agreement and addendum. b. Urtz advised to Jones that the language in the proposed addendum and the purpose of the addendum were not acceptable to the plaintiffs. c. Weaton Drive was not a material issue to the settlement agreement and Urtz, "will address that issue in the proper venue as a Supervisor." d. All other terms, including an additional paragraph faxed by Jones that same day, were agreeable with one minor correction. 55. Both the Settlement Agreement and the Addendum to Settlement Agreement between the plaintiffs and the township were signed by all of the plaintiffs, one supervisor, and one witness. a. Peter and Kelly Urtz's signatures appear first on the list of property owners on both documents. b. Supervisor Lytle signed both documents on behalf of the township. c. Township Secretary Martha Boothe signed both documents as a witness. Urtz 02- 024 -C2 Page 13 d. No signing dates appeared on the documents. 56. On October 10, 2001, a public meeting of the Potter Township Board of Supervisors was held. a. Minutes of the September 26, 2001 meeting were reviewed for accuracy and a correction was made regarding the motion approving Resolution 4 -2001. 1. The motion to approve Resolution 4 -2001 was corrected to read, "Resolution 4 -2001 A Resolution of the Township of Potter in the County of Beaver and Commonwealth of Pennsylvania Approving the Terms of a Settlement Agreement with Owners of Real Property in the Weatahome Hills Plan of Lots in the Township, Authorizing the Settlement of a Civil Action Filed by Said Owners of Real Property in Said Plan, and Authorizing the Taking Over of and Improvement to Cross Street and a Portion of George Lane in Said Plan in Compliance with the Terms of the Agreement or Any Amendment Thereto." b. At this meeting, Ronald Robinson was appointed by Urtz and Lytle to fill Patton's vacant seat on the board. 57. At the time of his vote to approve Resolution 4 -2001, on September 26, 2001, Urtz had not filed a written memorandum disclosing his possible conflict of interest with township secretary Martha Boothe. 58. Albert Torrence, an attorney with an office in Beaver, was retained to represent certain residents of the township concerning the Weatahome Hills issue voted on by the board of supervisors on September 26, 2001. (Resolution 4- 2001). a. Torrence directed a letter to Solicitor DiMartini dated November 13, 2001, questioning Urtz's vote and Urtz's failure to file a written memorandum detailing the nature of the conflict. b. Torrence's letter noted, in part: "My review of the minutes of the regular meeting of the board of supervisors of September 26, 2001, indicates that the board acted illegally in adopting resolution number 4 -2001. At the time the board met on September 26, 2001, Lauren Patton had already resigned as a supervisor, reducing the board of supervisors to Peter Urtz and Walter Lytle. At the meeting, Mr. Urtz moved that resolution 4 -2001 be adopted and Mr. Lytle seconded the motion. The motion carried 2 -0. This vote came after Mr. Urtz declared that he had a conflict of interest but decided that he was nevertheless obligated to cast his vote out of necessity. As you know, Peter Urtz is named plaintiff in the litigation that was filed against the board of supervisors at No. 10506 of 1997. As such, Mr. Urtz not only has a conflict of interest in participating in this vote, but his action essentially resulted in the township settling litigation that was brought by him. Clearly Mr. Urtz is unable to participate in this vote in any matter, and the doctrine of necessity does not alleviate his conflict. In addition, although Mr. Urtz announced that he had a voting conflict, he failed to abide by the requirements of the Pennsylvania Ethics Act by filing the required written memorandum detailing the nature of his conflict. Urtz 02- 024 -C2 Page 14 My clients have authorized me to institute suit in the Court of Common Pleas of Beaver County to restrain the township's implementation of resolution no. 4- 2001. I would also ask that you advise the remaining township supervisor that the participation of a vote in which they have a direct conflict of interest can expose them to individual liability and to a charging order if this matter is not rectified. I am requesting at this time that the township resend [sic] its action of September 26, 2001, and reschedule the vote on the adoption of the resolution after the appointment of a third township supervisor." 59. On November 15, 2001, Urtz filed a written memorandum with Boothe disclosing his possible conflict of interest as follows: "This memorandum of conflict of interest is in addition to my statement contained in the township minutes of September 26, 2001 concerning the vote on Resolution 4 -2001, which adopted the terms of a settlement agreement with the owners of property within the Weatahome Hills Plan of Lots. My conflict of interest is that I am a homeowner and plaintiff mentioned in the above settlement agreement, as well as a Supervisor for Potter Township. A vote to settle the lawsuit would result in a pecuniary benefit to myself at the expense of township funds. The pecuniary benefit would be any increased value of my residence once the terms of the settlement are completed. The above - mentioned memorandum was written to comply with the Pennsylvania State Ethics Act. However, being that there would be several other homeowners that would receive the same benefit as myself, if investigated further the conclusion could be that I had no conflict of interest to begin with. Peter W. Urtz" 60. The township took no other action in response to Torrence's letter. a. The citizens represented by Torrence did not proceed further. 61. The owners of fourteen (14) properties abutting Cross Street, including Peter Urtz and those not specifically named in the lawsuit, are required to pay the $10.00 per linear foot front foot assessment. a. The front foot assessment fee is due by September 30, 2004. 1. The front foot assessment fee is not due until 2004 due to the fact that the roads were estimated to be completed in three years in beginning in 2001. b. The front foot assessment fee will generate approximately $16,760.00 in revenue to offset the cost to the township. c. The cost to be incurred by the township for the upgrading of Cross Street and George Lane to township specifications is approximately $77,885.00. 1. The $77,885.00 figure represents the final estimated amount after the $16,760.00 in front footage assessments is subtracted from the original $94,645.00 engineers estimate. 62. Attorneys representing the township recommended acceptance of the agreement due to the benefit to the township. Urtz 02- 024 -C2 Page 15 a. The benefit to the township is that the cost of improvement could be spread out over an extended period, rather than paid in a lump sum if the lawsuit had been lost. 63. Urtz did not file Statements of Financial Interest in his capacity as a township supervisor for calendar year 1999 by May 1, 2000, and for calendar year 2000 by May 1, 2001. a. Urtz filed those Statements of Financial Interests with the State Ethics Commission on January 14, 2003. III. DISCUSSION: At all times relevant to this matter, the Respondent, Peter Urtz, hereinafter Urtz, 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 allegations are that Urtz, as a Potter Township Supervisor, violated Sections 1103(a) and 1104(a) of the Ethics Act when he: participated and voted regarding the settling of a lawsuit filed against the township when he was a plaintiff; and failed to file Statements of Financial Interests (SFI's) for the 1999 and 2000 calendar years by May 1, 2000, and May 1, 2001, respectively. 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. The term "conflict of interest" is defined under Act 9 of 1989/Act 93 of 1998 as follows: Section 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 f of ce 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 Pa.C.S. § 1102. Section 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. Section 1104(a) of the Ethics Act requires that each public official /public employee must file a Statement of Financial Interests for the preceding calendar year, each year that he holds the position and the year after he leaves it. Urtz 02- 024 -C2 Page 16 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. Urtz is a second -class township supervisor on a three - member board in Potter Township where he lives in the Weatahome Hills subdivision (Weatahome). In the township, there was an ongoing issue about the condition and status of the roads in Weatahome. Since Weatahome was approved before the township enacted an ordinance requiring minimum road standards for construction in subdivisions, the roads in Weatahome did not meet those standards and the developers chose not to make any road upgrades. For several years, the residents of Weatahome asked the township to accept ownership of the roads but the township never acted. Prior to Urtz's election to the board of supervisors, he was instrumental in organizing a group of residents to take action against the township to accept the roads in Weatahome. The residents retained a law firm which filed a mandamus action and declaratory judgment action against the township regarding its failure to accept ownership of the roads in Weatahome. When another Weatahome resident, Lauren Patton, became a township supervisor in May of 1999, the township solicitor deleted all information relating to the Weatahome lawsuit from his supervisory monthly report to her. The deletion of that information by the solicitor as to Patton's report was made with her knowledge and consent. However, when Urtz took office as a supervisor in January of 2000, he desired that all such information regarding the lawsuit be included in his copy of the solicitor's report, even though the solicitor recommended that such information be deleted as to Urtz. Urtz participated in discussions of the board including legal meetings with the township's attorneys as to the lawsuit. When the solicitor began providing information to Urtz about the lawsuit, the solicitor then provided such information in his report to Patton. Information about the conferences between the attorneys as to the lawsuit, legal research and case review were included in the solicitor's report provided to Urtz. At one point, Urtz contacted the solicitor to arrange a meeting between the parties involved in the lawsuit. Urtz continued to act as the plaintiff representative in the lawsuit against the township even after he became a township supervisor. When the board of supervisors held a public meeting in March of 2000 to explore the possibilities of an amicable settlement to the lawsuit, Urtz was present as both a township supervisor and plaintiff in the lawsuit against the township. Urtz, who was the only plaintiff present at the meeting, presented a proposal to the board as a representative of the plaintiffs in the lawsuit. In September of 2000, the board of supervisors, including Urtz, met in executive session with the solicitor and township engineer to discuss a potential settlement of the lawsuit. During the discussions, Urtz indicated that he would make a certain recommendation for settlement of the lawsuit to the plaintiffs with certain conditions. No further action was taken for approximately nine months and then a petition to enforce settlement was filed in court by plaintiffs' counsel. The solicitor discussed the matter with supervisors Lytle and Patton but not Urtz. After the township engineer worked up a cost estimate for upgrading certain streets in Weatahome, the solicitor had telephone conferences regarding the motion to enforce, one of which calls was with Urtz in his capacity as township supervisor. In July of 2001, the solicitor met twice in executive session with the board, gave a status report on the lawsuit and explored the township's position regarding litigating or settling the case. Urtz was present at only one of those two meetings. After the executive sessions, Urtz and Supervisor Lytle favored a settlement of the lawsuit but Supervisor Patton opposed it. The solicitor then issued a report concerning potential conflicts of interest by Urtz and Patton Urtz 02- 024 -C2 Page 17 in relation to the Weatahome lawsuit. Patton submitted her resignation to the board after a September 2001 public meeting. After the solicitor presented a proposed settlement by the board of supervisors, the attorney for the plaintiffs responded to the settlement proposal noting that Urtz had been in contact with the plaintiffs and noted that the plaintiffs were in general agreement with the proposal, subject to certain exceptions. The solicitor drafted a settlement agreement in September 2001. Urtz and Lytle were the only two members of the board at that time, due to the vacancy of the third seat caused by Patton's resignation. Subsequently, in a township board meeting on September 26, 2001, Urtz, as a supervisor, stated that the board members believed that the settlement of the lawsuit was in the best interest of the township and that the plaintiffs would win if the lawsuit were decided in court. Thereafter, Urtz, as vice - chairman, made a motion to accept the resolution to settle the lawsuit. Supervisor Lytle voted in favor of the motion. After Urtz stated that the board could not take action with only one vote, he voted in favor of the resolution after noting his conflict. The motion passed on a 2 -0 vote with Urtz and Lytle voting in favor of the motion. At the time of the vote to approve the resolution for settling a lawsuit, Urtz had not filed a written memorandum disclosing his conflict of interest with the township secretary. Subsequently, certain township residents retained counsel who sent a letter to the township solicitor indicating that the board acted illegally in adopting the resolution to settle the lawsuit, given Urtz's conflict as a named plaintiff in the lawsuit filed against the township. The letter also noted that Urtz failed to make the requisite disclosures under the Ethics Act. Thereafter, Urtz filed a written memorandum disclosing his conflict in the matter. The township took no action in response to the letter and citizens did not proceed any further. It is stipulated that as a result of the lawsuit settlement, the owners of the properties in Weatahome are required to pay a $10 per linear foot front assessment which will generate revenues that will offset in part the cost to the township for the upgrades of the roads. Lastly, Urtz did not filed SFI's as a township supervisor for the calendar years 1999 and 2000 but subsequently filed those SFI's with this Commission on January 14, 2003. 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: Urtz unintentionally violated Section 1103(a) of the Ethics Act when he participated in discussions of the board of supervisors regarding the settling of a lawsuit filed against the township when he was a plaintiff; Urtz did not violate Section 1103(a) of the Ethics Act as to his vote to settle the lawsuit, based upon a recommendation of the Investigative Division; and Urtz violated Section 1104(a) of the Ethics Act when he failed to file SFI's for the 1999 and 2000 calendar years. In addition, Urtz agrees to make payment of $700 to the Commonwealth through this Commission within 30 -days of the issuance of the final adjudication in this matter. In applying Section 1103(a) of the Ethics Act to the instant matter, the stipulated facts reflect numerous actions on the part of Urtz as to his participation in the process as a township supervisor regarding the lawsuit that he and other residents filed against the township concerning the roads within Weatahome. But for the fact that Urtz is a supervisor, he could have not been in a position to direct the solicitor to supply Urtz with information regarding the lawsuit where he was one of the plaintiffs against the township, advocate in favor of a settlement of the lawsuit, and have involvement as to the offers and terms and settlement as to the lawsuit. Such actions were uses of authority of office. Urtz ostensibly acted as a supervisor but espoused a viewpoint that favored himself as a private litigant against the township as to the Weatahome lawsuit. The simultaneous representation of the two adverse interests by Urtz in the lawsuit created his conflict in this case. The uses of authority of office Urtz 02- 024 -C2 Page 18 resulted in a private pecuniary benefit to Urtz in terms of the financial benefit that he received as a result of a settlement of the lawsuit. Even though the private interest of a public official must yield to the public interest which is paramount (Crisci, Opinion 89 -013), it appears that Urtz's focus was his private interest as a Weatahome resident rather than as a township supervisor. Accordingly, Urtz unintentionally violated Section 1103(a) of the Ethics Act when he used the authority of office for a private pecuniary benefit by participating in discussions of the board of supervisors regarding the settlement of the lawsuit filed against the township when he was a plaintiff. As to the second aspect of the allegation regarding the lawsuit, the Investigative Division recommends that there was no violation with regards to the vote by Urtz in settling the lawsuit. In this case, the action of Urtz in voting for the resolution was a use of authority of office. The use of authority of office resulted in a private pecuniary benefit to Urtz as noted above. We are aware that when Urtz took such action as to the vote, there was a vacancy on the board. A vacancy on a three - member board with only two members present does not bring into operation the last sentence of Section 1103(j) of the Ethics Act. Section 1103(j) provides in part: § 1103. Restricted activities * ** (j) Voting conflict. -- .. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. §1103(j). Even if there is a vacancy on a three - member board or one of the members is absent, there is no basis under Section 1103(j) of the Ethics Act for voting by a member who has a conflict. In order for Section 1103(j) to have application, the situation must be such that one member has to abstain from voting as a result of an Ethics Act conflict with the two remaining members casting opposing votes in which case the member who has the conflict may vote provided the requisite disclosures are made. That scenario was not present in this case. Hence, Section 1103(j) has no application. We are aware of our decision in Garner, Opinion 93 -004, where we held that a public official on a three - member board could second a motion where another member (who opposed the motion) would not second it or would be absent. We did not address the question of the ability to vote, noting that our ruling was expressly limited to the question asked, namely the propriety of seconding the motion. Accordingly, the actions of Urtz in this case form a basis for a violation of Section 1103(j) as to his voting to settle the lawsuit. Parenthetically, we are cognizant of Fact Finding 51.d. which merely constitutes a legal conclusion. We shall construe the Investigative Division's recommendation of no violation as an exercise of discretion on its part not to prosecute this particular allegation. Accordingly, we will find that Urtz did not violate Section 1103(j) regarding his voting on the basis of a non -pros by the Investigative Division. As to Section 1104(a) of the Ethics Act regarding the SFI's, the record reflects that Urtz did not timely file his SFI's for the calendar years 1999 and 2000. Accordingly, Urtz violated Section 1104(a) of the Ethics Act when he failed to timely file SFI's for the calendar years 1999 and 2000. Urtz has now filed his SFI's for those two calendar years on January 14, 2003. Urtz 02- 024 -C2 Page 19 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, Urtz is directed to make payment of $700 to the Commonwealth of Pennsylvania through this Commission within 30 -days of the mailing date 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. Urtz, as a Supervisor for Potter Township, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Urtz unintentionally violated Section 1103(a) of the Ethics Act when he participated in discussions of the board of supervisors regarding the settling of a lawsuit filed against the township when he was a plaintiff. 3. Urtz violated Section 1104(a) of the Ethics Act when he failed to file Statements of Financial Interests for the 1999 and 2000 calendar years as a Potter Township Supervisor. In Re: Peter Urtz ORDER NO. 1274 File Docket: 02- 024 -C2 Date Decided: 4/4/03 Date Mailed: 4/18/03 1. Urtz, as a Supervisor for Potter Township, unintentionally violated Section 1103(a) of the Ethics Act when he participated in discussions of the board of supervisors regarding the settling of a lawsuit filed against the township when he was a plaintiff. 2. Urtz violated Section 1104(a) of the Ethics Act when he failed to file Statements of Financial Interests for the 1999 and 2000 calendar years as a Potter Township Supervisor. 3. Per the Consent Agreement of the parties, Urtz is directed to make payment of $700 to the Commonwealth of Pennsylvania through this Commission within 30 -days of the mailing date 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, Louis W. Fryman, Chair