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HomeMy WebLinkAbout1278 ScottIn Re: Mark Scott 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 00- 075 -C2 Order No. 1278 4/4/03 4/28/03 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 filed and a hearing was 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Scott 00- 075 -C2 Page 2 I. ALLEGATION: That Mark Scott, a public official /public employee, in his capacity as a Berks County Commissioner violated Sections 1103(a) of the State Ethics Act (Act 93 of 1998) 65 Pa.C.S. §1103(a) when he used the authority of his office for a private pecuniary benefit when he participated in discussions and actions of the Berks County Commissioners to intervene in a legal proceeding filed against Waste Management, Inc., at a time when he was a party to the legal proceeding against Waste Management; and when Scott, in his capacity as a Berks County Commissioner and Member of the Berks County Solid Waste Authority used the authority of his office for a private pecuniary benefit when he participated in discussions, actions and votes in approving the transfer of funds from the Solid Waste Authority to Berks County to cover legal fees for the legal proceeding against Waste Management, Inc., at a time when he was a private party to the legal proceeding against Waste Management. II. FINDINGS: 1. Mark Scott has served as a Berks County Commissioner from January 2, 1996, to the present. a. Scott held the position of Chairman of the Berks County Board of Commissioners during 1996. 2. Scott also served as a Douglass Township, Berks County, supervisor from January 1990 to September 27, 1995. 3. Scott was appointed as a member of the Berks County Solid Waste Authority in September 1992 by the Berks County Board of Commissioners and served in that position until 1998. a. Scott served as Executive Director of the Berks County Solid Waste Authority from September 1992 to December 31, 1995. b. Scott served as "Interim Executive Director" of the Solid Waste Authority for a probationary period of approximately six months, until he was confirmed as Executive Director some time in 1993. c. From 1996 until 1998, Scott simultaneously served as a Member of the Berks County Board of Commissioners and a Member of the Berks County Solid Waste Authority. 4. Scott was licensed by the Supreme Court of the Commonwealth of Pennsylvania as a practicing attorney in June 1979. 5. On October 13, 1992, Waste Management, Inc. filed an application with what is now known as the Pennsylvania Department of Environmental Protection, hereinafter DEP, for a permit for the eastern expansion of the Pottstown Landfill, which they [sic] owned. 6. On October 2, 1995, DEP authorized the eastern expansion of the Pottstown Landfill, under permit no. 100549. 7. Mark Scott is and was at all relevant times discussed herein a resident of Douglass Township, Berks County. a. Scott's 127 acre farm is located two miles west of Pottstown Landfill. 8. John William Fontaine, II resided in West Pottsgrove Township, Montgomery County, at the time the eastern expansion permit was issued. Scott 00- 075 -C2 Page 3 9. In November 1995 Fontaine requested that Scott assist him in filing an appeal of the issuance of the permit by DEP to Waste Management, Inc. for the eastern expansion of the Pottstown Landfill. a. The appeal would be made to the Environmental Hearing Board. 10. On November 20, 1995, Mark Scott and John Fontaine filed Notices of Appeal regarding the Pottstown Landfill's eastern expansion, permit no. 100549, with the Commonwealth of Pennsylvania, Environmental Hearing Board. a. The appeals were assigned docket nos. 95- 247 -MG and 95246 -MG respectively by the EH B. 11. Both appeals were filed by Scott and Fontaine as private citizens acting Pro Se. a. At the time of the filing of the initial appeal, Scott did not represent Fontaine in his capacity as an attorney. 12. During the appeal process from 1995 -1998, Fontaine acted Pro Se and was later represented by Scott at various stages of the legal process. 13. At the time of the filing of the appeal of the Pottstown Landfill Expansion, Scott had already won election as a Berks County Commissioner and would be assuming office as such in January of 1996. 14. Although Scott [sic] and Fontaine's appeals were filed separately, both parties' legal pleadings were identical. 15. Both Scott's and Fontaine's notices of appeal contained five (5) identical legal issues in opposition to the granting of permit no. 100549 for the eastern expansion of the Pottstown Landfill. 16. Scott [sic] and Fontaine's objections to the Department of Environmental Protection's actions as delineated in their appeal papers included the following issues: a. The Permit pertains to the expansion of a facility co- hosted by two counties and two townships, namely, Berks County and Douglass Township, and Montgomery County and West Pottsgrove Township. The Department and Permittee failed to provide notice of and an opportunity to comment on the Eastern Expansion to the facility's hosts, Berks County and Douglass Township. b. The Permittee failed to meet its post closure trust funding obligations with respect to that portion of the permitted facility which is located in Berks County. Despite repeated notices to this effect, the Department failed to obtain funding compliance from the Permittee and thus has acquiesced in the violation. c. The Permit will worsen and maintain the malodorous atmosphere created by uncombusted fugitive landfill emissions which is detectable at a distance over two miles from the permitted facility, the Pottstown Landfill. The odors generated at the Landfill, which the Permit authorizes to expand, constitute a public nuisance and pose an unacceptable health risk. d. The Permit fails to incorporate, as a condition precedent to commencement of construction of the Eastern Expansion, the requirement that the Permittee first obtain a Federal Clean Air Act Part D permit. Scott 00- 075 -C2 Page 4 e. The Permit authorizes an activity or land use not permitted by the zoning ordinances of West Pottsgrove Township, Montgomery County. Issuance of the Permit prior to the necessary revision of the applicable local zoning ordinance constitutes an unwarranted intrusion by the Department into matters reserved to local municipal authority. 17. The appeals do not demand damages or compensation and the EHB is not authorized to award same. 18. Over 400 complaints had been received by DEP complaining of odors at the landfill during the period from April 1995 through June 1997. 19. The Berks County Board of Commissioners is comprised of three members. a. Mark Scott took office as a Berks County Commissioner on January 2, 1996. b. Commissioner Randy Pyle was also a new Commissioner and took office on the same day as Mark Scott. c. Commissioner Glenn Reber took office on January of 1988 when first elected Commissioner. He was subsequently re- elected and took office in January of 1992 and 1996. 20. In January 1996, shortly after taking office, Commissioner Mark Scott approached fellow Berks County Commissioners Pyle and Reber and requested their support in having Berks County join in the appeal of the issuance of permit no. 100549 as an intervener to the appeal filed by Scott and Fontaine before the Environmental Hearing Board. a. Prior to this time, neither Commissioner Pyle nor Reber had any knowledge of the issuance of the permit. b. Prior to the time that Scott approached the other commissioners to become involved in opposing the eastern expansion permit, those commissioners had no intention of doing so. 21. Scott acknowledged to representatives of the State Ethics Commission that he believed that the County's participation in the Scott /Fontaine litigation was essential to the successful completion thereof. a. Scott believed that the resources and power of the County were needed to battle a major corporation such as Waste Management, Inc. b. Scott believed that individual parties, including himself and Fontaine, did not have the financial wherewithal on their own to complete a successful litigation against Waste Management, Inc. 22. At the January 30, 1996, Pre - Commissioner's board meeting, which was held for the purpose of discussing and setting the agenda items for the subsequent and regular board of commissioners' meetings, Scott presented a resolution authorizing the County to intervene in the appeal of the issuance of DEP permit no. 100549 regarding the eastern expansion of the Pottstown Landfill before the Pennsylvania Environmental Hearing Board (hereinafter "EHB "), docket no. 95- 247 -MG. 23. At the Board of Commissioners' meeting held on February 1, 1996, Commissioner Scott delineated the litigation to date, detailing his personal role in filings he had made, Scott 00- 075 -C2 Page 5 and from his perspective as a commissioner what he viewed as the impact of this expansion on the citizens of Berks County. a. The official minutes of the meeting of February 1, 1996, indicate that Scott also raised the issue of the lack of host fees being forwarded to Berks County by neighboring Montgomery County. b. The actual challenge was based in part upon the lack of post closure trust fund fees being forwarded to Berks County by neighboring Montgomery County. c. The official minutes of the meeting of February 1 reference Scott's concerns for the health and welfare of Berks County residents. d. The minutes also reflect the appearance of Karen Gerew, a Berks County resident, who made an emotional appeal for County assistance versus the landfill. 24. Commissioner Scott considered himself the "environmental" Commissioner who assumed the active role in the litigation on behalf of the County Commissioners. a. Scott acted as the lead county commissioner to advance the interests of the county in relation to the litigation. b. The County Solicitor and staff also advanced the County's interests in litigation consistent with their statutory duties. 25. A motion was made by Commissioner Reber, seconded by Commissioner Pyle, to approve Resolution 52 -96 -J authorizing the County's intervention in the appeal of the issuance of permit no. 100549 for the eastern expansion of the Pottstown Landfill. a. The motion to intervene carried with Reber and Pyle voting (yes) while Commissioner Scott abstained. b. Prior to Commissioner Scott raising the issue and advocating for the County's involvement, Commissioners Reber and Pyle had no intention on [sic] becoming involved in the matter. 26. Scott was to serve as the liaison county commissioner for the primary purpose of dealing with staff and others regarding the County's involvement in the appeal and related litigation. 27. Scott regularly reported to the other county commissioners as to the ongoing activities involving the litigation. 28. Although the Commissioners agreed to the County's involvement in the Scott/Fontaine litigation, Scott was advised not to expend a substantial amount of the County's funds in pursuit of this appeal. 29. Special Assistant County Solicitor Alan S. Miller was assigned by County Solicitor Jeffrey L. Schmehl to handle the County's intervention of the appeal of the issuance of the permit. 30. On February 15, 1996, Special Assistant County Solicitor Alan S. Miller, on behalf of Berks County, submitted to the EHB a petition to intervene in the appeal of the issuance of the permit for the eastern expansion of the Pottstown Landfill listed as docket no. 95- 247 -MG. Scott 00- 075 -C2 Page 6 31. The EHB granted Berks County's [sic] permission to intervene on February 21, 1996. 32. The issues raised by Special Assistant Solicitor Miller mirrored those of Appellants Scott and Fontaine. 33. One of the issues raised by Scott, Fontaine and the County was the failure of the department to notify Berks County of the pendency of the landfill permit application. 34. Neither Commissioners Pyle nor Reber or Special Assistant County Solicitor Miller had prior knowledge of the notice or other issues which were being presented in the County's petition to intervene. a. The issues raised on behalf of the County by Special Assistant Solicitor Miller were provided to him by Commissioner Scott. 35. Prior to the time that Scott brought the landfill issues to the attention of the other commissioners, the County had no intention to challenge the landfill expansion. 36. The intervention by Berks County provided financial resources to carry on the litigation of the appeal initiated by Scott and Fontaine. a. The intervention also brought the weight of the authority of Berks County to the litigation process. b. Scott was of the firm belief that the intervention of Berks County was necessary in order to ensure the continued pursuit of the litigation for the benefit of Berks County and the other parties involved. c. Scott believed that the intervention of the County was necessary in order to put additional pressure on DER. 37. In June 1996, after the County had intervened in the appeal, Fontaine, through research, determined that the Landfill Expansion violated FAA Regulations because of its close proximity to the Pottstown Municipal Airport. 38. Fontaine provided Scott with the information and Scott submitted an amended petition, on his own behalf, to the Environmental Hearing Board on June 21, 1996. a. Fontaine submitted his own amended petition on July 22, 1996. 39. Scott provided the information to Special Assistant County Solicitor Alan S. Miller who filed an amended petition on behalf of Berks County to the Environmental Hearing Board on June 26, 1996, listing the airport issue as an additional ground for appeal. a. This issue then became one of the grounds for appeal. b. Scott's amendment of his appeal provided the county with the opportunity to invoke the airport proximity issue. 40. The Berks County Solid Waste Authority was funded through the creation of revenue bonds and Host Landfill Fees payable to Berks County. 41. The Berks County Solid Waste Authority consists of nine members appointed by the Board of Commissioners of Berks County. a. The members of the Solid Waste Authority are authorized to expend funds generated through the revenue bonds to meet Authority responsibilities Scott 00- 075 -C2 Page 7 consistent with the Municipal Authorities Act of 1945. 42. Pursuant to an agreement between the Solid Waste Authority and the County of Berks, dated October 1, 1992, funds were placed in an escrow account for payment by the Authority of certain legal fees. a. Release of the funds required approval of both the Authority and a majority of the Berks County Commissioners. 43. Mark Scott was appointed to serve as a member of the Solid Waste Authority by the Board of Commissioners on July 30, 1992. a. Scott remained an Authority member until 1998. b. Scott served as the Executive Director of the Solid Waste Authority from February 4, 1993, until December 31, 1995. c. In 1992, Scott, acting as Assistant County Solicitor, suggested creation of the litigation escrow fund to ward off potential challenges to the Solid Waste Plan's implementation or to defray the cost of anticipated litigation of the same. 44. Sometime prior to May of 1996, Scott approached the other Berks County Commissioners and advised them of the litigation escrow account that was being maintained by the Solid Waste Authority. a. Scott suggested to the other county commissioners that the Authority could be of some financial help to the County in defraying the costs of litigation if the Authority were to allocate funds that could be utilized by the County in pursuit of the litigation. b. The purposes for which the escrow fund had been established were no longer of concern due to the abrogation of the Authority's power to control the flow of waste. The Authority had settled its litigation of this issue with Browning Ferris, Inc. and the escrow was therefore unlikely to be needed. c. Scott recommended that an approach be made to the Solid Waste Authority in an effort to obtain funding from the Authority to further pursue the County's litigation against Waste Management, Inc. d. Prior to the time that Scott approached the county commissioners seeking to solicit the funds from the Authority, the other county commissioners had no intent [sic] of seeking such funding from the Authority. 45. On May 30, 1996, at the Berks County Solid Waste Authority Board meeting, Scott informed the Board that the County's litigation against the eastern expansion of the Pottstown Landfill was ongoing. a. Scott was a member of the Authority Board at this time. 46. Scott requested that the Solid Waste Authority consider helping Berks County fund the litigation through utilization of the Authority's escrow fund. a. Scott suggested the Authority should consider funding the County's litigation of the expansion permit on the basis of his belief that the Pottstown Landfill was a pubic nuisance and that the permit was illegally issued without County opportunity for review and comment. Scott 00- 075 -C2 Page 8 47. The Solid Waste Authority instructed Solicitor Mery Heller to determine the legality of funding the Pottstown Landfill expansion appeal. 48. On June 13, 1996, Solicitor Heller informed the Authority Board that the Solid Waste Authority could enter into a joint resolution with the Berks County Board of Commissioners to utilize the Host Fee Escrow Fund for the purpose of funding the litigation on the appeal of permit no. 100549 for the eastern expansion of the Pottstown Landfill. 49. The Berks County Solid Waste Authority at the June 13, 1996, meeting, voted to approve Resolution No. 1996 -1 authorizing the transfer of $10,000 from the Host Fee Escrow Fund to Berks County contingent upon mutual consent of the Berks County Board of Commissioners for the purpose of defraying the costs of litigation incurred by the County with respect to the appeal of the issuance of the permit for the eastern expansion of the Pottstown Landfill. a. Scott abstained from the vote due to his involvement in the permit appeal litigation. 50. On July 18, 1996, the Berks County Board of Commissioners, with Scott present, voted unanimously to approve Resolution No. 356 -96 which authorized Commissioner Scott as Chairman of the Board of Commissioners to execute a joint requisition with the Solid Waste Authority authorizing the transfer to the County of Berks, the sum of $10,000 from the Host Fee Escrow Account to be used to defray the costs of litigation incurred in the intervention of the appeal of the issuance of the permit for the eastern expansion of the Pottstown Landfill. a. Scott participated in the board's approval of this resolution. b. Resolution No. 356 -96 was signed by Commissioners Mark Scott, Randy Pyle and Glenn Reber. 51. Prior to the time that Scott approached the Berks County Solid Waste Authority on May 30, 1996, soliciting funds for the Scott /Fontaine /County litigation, the Authority had no intention of becoming involved or financing the legal action. 52. As part of his active pursuit on behalf of the County's challenge to the Landfill, on August 1, 1996, Commissioner Scott on Berks County stationery also sought the support of Pottstown Borough Council, the Douglass Township Board of Supervisors and the Upper Pottsgrove Township Board of Commissioners in his opposition to the rezoning of the land which was to be used for the eastern expansion of the Pottstown Landfill. a. Scott cited his familiarity with the expense and time consuming nature of environmental issues. b. Scott explained, as Chairman of the Berks County Board of Commissioners, he was in a position to access many of the resources needed to pressure the DEP on the issue. c. Scott believed that the zoning challenge would advance the landfill permit litigation. 53. On November 6, 1996, the Environmental Hearing Board issued an opinion and order in the matter of the Fontaine, Scott and Berks County appeal of the permit issued by DEP to Waste Management Disposal Services, Inc. for the Pottstown Landfill. Scott 00- 075 -C2 Page 9 a. The Environmental Hearing Board granted summary judgment on behalf of Berks County for failure of DEP to give notice to the County of the application by Waste Management, Inc. for the eastern expansion of the Pottstown Landfill and further remanded the matter back to the Department for the issuance of the appropriate notices and to provide the opportunity for the County and its citizens to submit comments to the Department and to participate in a public hearing in relation to the proposed Landfill Expansion. b. The Environmental Hearing Board also granted a motion for summary judgment on behalf of Waste Management, Inc., which found that Fontaine and Scott did not have standing to raise the issue of the failure of the Department of Environmental Resources to provide notice to Berks County. c. The Environmental Hearing Board did not address the substantive issues raised by the Scott /Fontaine /County appeals at this time but did comment on such issues providing some guidance for the Department's consideration of these issues on remand. d. The ruling resulted in the EHB relinquishing jurisdiction of the matter. 54. Waste Management, Inc. subsequently appealed the opinion and order on summary judgment by the Environmental Hearing Board to the Commonwealth Court of Pennsylvania. a. On February 19, 1997, the Commonwealth Court issued an order quashing the appeal as interlocutory. b. The Pennsylvania Supreme Court subsequently denied Waste Management, Inc.'s subsequent petition for allowance of appeal. c. The County's responses, including briefs responding to Waste Management's petition to appeal and petition for reconsideration, were written by Scott in an effort to conserve County resources. 55. After the denial of the allowance for appeal by the Supreme Court of Pennsylvania, DEP provided notice to Berks County in accordance with the order of the Environmental Hearing Board and offered the Berks County Commissioners the opportunity to provide comments in relation to the Landfill Expansion Permit. 56. In order to successfully pursue the matter on remand before DEP, Scott believed that it was necessary to obtain the services of environmental experts to assist in drafting comments for submission. a. Scott advised the Berks County Board of Commissioners that he was aware of individuals from his prior experience in environmental litigation in which the Solid Waste Authority had previously been involved who would be able to assist by providing the comments on behalf of the County. b. Scott identified these individuals as Anthony Mitchell and Thomas Germine. 57. In December 1996, Commissioner Scott sought a proposal from Thomas Germine and Anthony Mitchell in reference to providing professional services to Berks County relative to the submission of comments regarding the permit application. 58. On January 2, 1997, the Berks County Board of Commissioners, by a motion of Commissioner Pyle, seconded by Commissioner Scott, approved Resolution 5 -97 authorizing the County to proceed with the provision of professional services to assist Scott 00- 075 -C2 Page 10 the County of Berks in solid waste and environmental matters per a proposal submitted by Thomas J. Germine, Esquire, at a cost not to exceed $5,000.00. 59. On January 16, 1997, Scott informed the Berks County Solid Waste Authority that litigation challenging the expansion of the landfill was continuing and suggested the Authority approve an additional $10,000 transfer from the Host Fee Escrow Account to cover the cost of hiring Anthony Mitchell and Thomas Germine for their expertise in environmental hazards. a. The Authority voted unanimously to approve the transfer of the additional $10,000 to Berks County, by adopting Resolution No. 1997 -1. b. At the time of this vote, Scott was a member of the Solid Waste Authority and participated in the vote to approve the transfer of funds from the Authority to Berks County. 60. On February 13, 1997, the Berks County Board of Commissioners, on a motion by Commissioner Pyle and seconded by Commissioner Scott, voted to approve Resolution No. 89 -97 which authorized Board Chairman Reber to execute a joint requisition with the Berks County Solid Waste Authority authorizing the transfer to the County of Berks the sum of $10,000 from the Authority's Host Fee Escrow Account. a. Scott participated in the County Board of Commissioner's actions resulting in the transfer of funds from the Authority to the County. 61. On February 13, 1997, the same day Scott obtained funding to hire Germine and Mitchell, Commissioner Scott presented Resolution No. 90 -97 authorizing Chairman Reber to execute a document titled LETTER AGREEMENT AMENDMENT to contract by and between the County of Berks and Thomas J. Germine, Esquire, and Anthony E. Mitchell, Esquire, for additional consultation services with respect to Pottstown Landfill litigation at a cost of $20,000. a. Resolution No. 90 -97 was adopted unanimously as presented by Commissioner Scott. b. Scott participated in the County's actions which authorized the resolution. 62. As a result of the foregoing actions, attorneys Germine and Mitchell prepared comments on behalf of Berks County for submission to the Department of Environmental Protection in relation to the Pottstown Landfill Permit. 63. On February 27, 1997, Commissioner Scott made a motion, seconded by Commissioner Pyle to adopt Resolution No. 108 -97 authorizing the submission of Pottstown Landfill eastern expansion permit comment letter as prepared by Thomas Germine, Esquire and Anthony Mitchell, Esquire. a. Resolution No. 108 -97 authorizing the submission of the comment letter prepared by Germine and Mitchell was signed by Commissioners Reber, Pyle and Scott. 64. Included in the comments submitted by Germine were objections to the permit on the issues of odor emanation and violations of FAA Guidelines due to the proximity of the landfill to an airport. a. These were the same issues raised by Scott and Fontaine in their appeals. 65. The acquisition of the expert services provided by Attorneys Germine and Mitchell Scott 00- 075 -C2 Page 11 would inure to the benefit of Scott and Fontaine as well as the County in that the issues and interests of all three parties were consolidated in the same challenge to the landfill permit. a. Scott's participation in the selection, financing, and acquisition of expert services provided by Attorneys Germine and Mitchell inured to the benefit of Scott in the successful pursuit of his challenge to the landfill permit. 66. After review of the comments submitted by Berks County, DEP, on September 15, 1997, issued a formal comment and response document to Berks County. a. The Department concluded that the comments raised no basis for modifying or revoking the permit it had previously issued for the eastern expansion of the Pottstown Landfill. 67. At this time, Mark Scott advised Berks County Solicitor Jeffrey Schmehl that the county was going to have to acquire the services of other attorneys who had an expertise in environmental litigation. a. As a result, Scott decided to seek the services of outside counsel to assist in the successful pursuit of the Pottstown Landfill issues. 68. Former Berks County Solicitor (now Common Pleas Court Judge) Jeffrey L. Schmehl averred in a sworn affidavit that: a. He did not believe that Scott was required to terminate his involvement in the proceedings when he became a county commissioner. b. He believed that Scott's continued participation augmented the county's legal standing and grounds for contesting the landfill expansion. c. Neither Commissioners Reber nor Pyle complained of the expense or the progression of the Pottstown Landfill litigation. d. The county would not have obtained the settlement benefits without the involvement of Scott. 69. On September 23, 1997, at the Berks County Pre - Commissioners' meeting, Commissioner Scott brought to the floor a draft Joint Resolution of the Berks County Solid Waste Authority and the Board of Commissioners to requisition from the Trustee of the Solid Waste Authority Litigation Trust Fund, the sum of $25,000 to be utilized in the engagement of a law firm to assist in the litigation concerning the Pottstown Landfill expansion permit. 70. On September 23, 1997, Scott informed the Berks County Solid Waste Authority that litigation with Waste Management, Inc. on the appeal of the issuance of the permit for the eastern expansion of the Pottstown Landfill was continuing and that the Berks County Board of Commissioners had agreed to appropriate $25,000 for the litigation. a. Scott suggested that the Solid Waste Authority transfer a matching amount to Berks County from their [sic] Host Fees Escrow litigation fund. 71. The Berks County Solid Waste Authority unanimously approved Resolution No. 1997- 2 authorizing the transfer of $25,000 from the Host Fees Escrow Fund to Berks County for legal services relevant to litigation on the appeal of the Pottstown Landfill expansion permit. Scott 00- 075 -C2 Page 12 a. Scott participated as a member of the Solid Waste Authority in approving the resolution authorizing the transfer of funds to Berks County to assist in the Pottstown Landfill litigation. 72. In September of 1997, at the same time he was seeking the funding from the Solid Waste Authority, Scott sought a proposal from the law firm of Rhoads & Sinon, Harrisburg office, in reference to the firm representing Berks County in the litigation concerning the appeal of the eastern expansion of the Pottstown landfill. 73. In a letter dated October 2, 1997, Rhoads & Sinon presented a proposal to Commissioner Scott and the Berks County Board of Commissioners offering to provide legal representation on behalf of the County in the Pottstown Landfill permit expansion litigation. a. Rhoads & Sinon estimated the cost of their [sic] representation to be $50,000.00. b. The estimate was based upon the amount of work to be done after reviewing legal materials provided by Commissioner Scott. 74. Scott sought the support of fellow Commissioners Reber and Pyle to accept Rhoads & Sinon's proposal. a. Scott asked that the proposal be reviewed by Solicitor Jeffrey Schmehl. 75. In a letter to Berks County Solicitor Heidi Masano, dated January 22, 1998, Scott noted that: "At that point the County, at my urging, retained Rhoads & Sinon, LLP, Harrisburg, to file a new appeal with the EHB as well as a mandamus action in Commonwealth Court." 76. The Commissioners met in an executive session to review the proposal and after reconvening the public meeting, Commissioner Scott reviewed the engagement letter submitted by Rhoads & Sinon. 77. On October 2, 1997, upon a motion by Commissioner Mark Scott, seconded by Commissioner Pyle, the commissioners voted in favor of adopting Resolution No. 558- 97 which allowed Glen B. Reber, as Chairman of the Board of Commissioners, to sign acceptance of a Letter of Engagement and to appoint the law firm of Rhoads & Sinon as Special Counsel and authorize and direct the county solicitor to take any and all necessary actions to accomplish same. a. Scott participated in the action of the county commissioners to approve the resolution hiring the firm of Rhoads & Sinon. b. As of the date that Rhoads & Sinon was hired, Scott had no pending litigation with Waste Management, given the Supreme Court's denial of allocatur as of April 23, 1997. At this time, the parties were still challenging the operation of the landfill before the Department of Environmental Resources, and Rhoads & Sinon was retained for such purpose. 78. On October 2, 1997, the same day that the County decided to retain Rhoads & Sinon, the Berks County Board of Commissioners, on a motion by Commissioner Pyle, seconded by Commissioner Scott, voted unanimously to approve Resolution No. 544- 97 authorizing a joint resolution with the Berks County Solid Waste Authority to requisition from the Trustee of the Berks County Solid Waste Authority Litigation Fund the sum of $25,000 to be added to the County Solicitor's Litigation Budget Line -Item for legal services relative to litigation of the Pottstown Landfill expansion permit. Scott 00- 075 -C2 Page 13 79. The law firm of Rhoads & Sinon was retained specifically to handle the appeal to the EHB of the action that had been taken by the Department in relation to the landfill permit. 80. On October 15, 1997, appeals were filed by Berks County, Scott and Fontaine with the Environmental Hearing Board of the Department's issuance of the comment and response document. a. Scott, Fontaine and the County also filed restated notices of appeal with the EHB as well as an amended petition for review in the nature of mandamus. 81. In a sworn affidavit, Charles Gutshall, of Rhoads & Sinon, averred that: a. Scott [sic] and Fontaine's continued participation in the proceedings was requested by him; b. He assured Scott that his participation was requested for the benefit of the county; c. A mandamus action was also filed in the Commonwealth Court of Pennsylvania to compel DEP to issue or deny the permit in a non - retroactive manner; d. Scott's joinder in that mandamus action was with the consent and at the request of specially appointed Solicitor Gutshall; and e. Commissioner Scott's services were valued in an amount in excess of $250,000. 82. On December 1, 1997, County Solicitor Alan S. Miller petitioned the Court of Common Pleas of Berks County to allow the County Commissioners to appoint Rhoads & Sinon as special counsel to handle certain matters for the Board of Commissioners relating to the litigation on the eastern expansion of the Pottstown Landfill. 83. Judge Albert Stallone of the Berks County Court of Common Pleas at docket no. CV- 97 -11381 approved the hiring of the law firm of Rhoads & Sinon as special litigation counsel for Berks County in connection with the County's appeal of the permit for the eastern expansion of the Pottstown Landfill. 84. On December 10, 1997, the Department filed a response in support of Waste Management's motion to reinstate the 1996 appeals. The county, Scott and Fontaine opposed that reinstatement. 85. On December 12, 1997, the EHB issued an order denying Waste Management's motion to reinstate based on the grounds that it had relinquished jurisdiction when it remanded the matter back to the Department in November of 1996. EHB also set a discovery schedule for the three 1997 EHB appeals. 86. On January 7, 1998, the EHB issued an opinion and order vacating its ruling of December 12, 1997, reinstating the 1995 appeals and further consolidating the 1995 appeals with the appeals taken in 1997. 87. Based upon the ruling of the EHB as set forth above, further litigation of the Pottstown Landfill Permit was scheduled to proceed in 1998. 88. The law firm of Rhoads & Sinon periodically invoiced Berks County for the services that the law firm was providing in relation to the appeal of the Waste Management Scott 00- 075 -C2 Page 14 permit to the EH B. a. Review of the invoices submitted by Rhoads & Sinon were [sic] the responsibility of Heidi Masano, who was appointed Berks County Solicitor in December of 1997. b. Upon receipt and review of such bills, Masano would check with Commissioner Mark Scott in order to determine if the funds were available for payment thereof and upon Scott's confirmation thereof, Masano would forward the invoices for processing. 89. The total amount paid to Rhoads & Sinon for their [sic] representation of Berks County, from October 1997 through December 1998, was $283,895.63. a. Some of the work performed by the firm of Rhoads & Sinon for which the county was billed involved the completion of various legal documents that were submitted jointly on behalf of all three parties to the litigation. b. Some of the invoices that were submitted to the county for payment related to charges for court reporting, copying, postage and other administrative work on behalf of the three parties to the litigation jointly. c. These actions were taken at the request of specially appointed Solicitor Gutshall. 90. On April 16, 1998, the Berks County Solid Waste Authority Board, after discussing the Host Fees Escrow Account and recent litigation costs incurred by the County for environmental purposes, voted to approve moving the remaining funds in the Host Fees Escrow Account, Account Number 1852150001, to the County of Berks for the utilization of the funds to defray costs of environmental litigation. a. Commissioner Scott abstained from the vote due to his involvement with the County's finances in his capacity as Commissioner and due to his party status in the subject litigation. b. The amount remaining in the account at this time was $83,687.42. c. This amount would be transferred to the County. 91. Bank records for the Berks County Solid Waste Authority (Dauphin Deposit Bank & Trust Co., Account No. 1852150001) indicate the transfers described in findings 70, 80, 92 and 111 [sic] above were completed. a. The total amount of funds allocated by the Solid Waste Authority for the landfill litigation was $128,687.42. 92. Throughout the course of the Pottstown Landfill appeal and litigation, Mark Scott utilized the personnel, offices, facilities and equipment of the County to prepare pleadings, conduct research, hold meetings and perform other duties and responsibilities in relation to such litigation. 93. Joan Adams was hired as Administrative Assistant /Secretary to Commissioner Scott on January 2, 1996, and presently serves in that capacity. 94. Scott requested Adams to prepare some legal pleadings and other documents in reference to his personal appeal of the issuance of permit no. 100549 for the eastern expansion of the Pottstown Landfill. Scott 00- 075 -C2 Page 15 a. Scott did not coerce or pressure Adams to assist him. b. The documents were prepared by Adams during the course of her normal work day as a county employee. 95. Scott requested Adams to prepare some legal pleadings and other documents for John William Fontaine, II in reference to Fontaine's personal appeal of permit no. 100549for the eastern expansion of the Pottstown Landfill. a. The documents were prepared by Adams during the course of her normal work day as a county employee. 96. Scott represented Fontaine as legal counsel, in relation to certain aspects of the landfill proceedings, during the time Adams prepared some of Fontaine's legal documents. 97. Berks County photocopiers and fax machines were utilized by Scott and by Adams as directed by Scott for the purpose of receiving and forwarding drafts and documents between Commissioner Scott, the Environmental Hearing Board, Rhoads & Sinon, and Scott's personal attorney. 98. Scott prepared legal pleadings and other documents for the County Solicitor to use on behalf of Berks County in the appeal of the permit for the eastern [sic] of the Pottstown Landfill. a. Such preparation also entailed extensive research. b. Scott also assisted in the review and preparation of pleadings developed by Rhoads & Sinon as a joint litigant and as a Commissioner. 99. Scott, as a private litigant, was also included on jointly -filed pleadings prepared by the County Solicitor. 100. Scott met with attorneys from Rhoads & Sinon, and attorneys from Saul Ewing, representing Waste Management, in his county office located in the Berks County Services Center. 101. During an interview with representatives of the State Ethics Commission, Scott advised that he had used County facilities and his secretary to type up and prepare documents and perform other work relating to the Scott /Fontaine litigation. 102. On June 23, 1996, Mark Scott and John Fontaine acting as private litigants first discussed a settlement arrangement entailing the construction of an incinerator with Attorney William Cluck, representing Waste Management. a. No verbal settlement discussion between Commissioner Scott and Attorney Cluck involved the demand of money. 103. On June 27, 1996, Attorney Cluck, on behalf of Waste Management, rejected the incinerator construction offer and offered Scott and Fontaine $5,000 each to compensate the two for the time spent pursuing the appeal. 104. On July 1, 1996, Fontaine submitted a counter -offer to Waste Management seeking compensation in the amount of $2,000,000 for himself and contingent upon Waste Management reaching a monetary settlement with Appellant Mark Scott. a. Scott did not respond to the offer. Scott 00- 075 -C2 Page 16 105. The law firm of Saul Ewing representing Waste Management, Inc., began firm settlement overtures in January of 1998 with Charles Gutshall of Rhoads & Sinon representing Berks County and Commissioner Scott representing himself and John William Fontaine, II. a. Such offers were directed to Attorney Gutshall who communicated them in turn to Scott and Commissioners Pyle and Reber. 106. Waste Management took the position that they [sic] would not settle unless Berks County and Mark Scott, acting as an individual and John William Fontaine, II, also acting as an individual litigant, all agreed to settle. 107. Waste Management, through its attorney, offered a monetary figure of $3,560,000 which they were [sic] willing to compensate the litigants in the landfill permit appeal to be divided among the parties. a. This offer to settle was made at the April 30, 1998, settlement conference scheduled by Special Counsel Gutshall in the Berks County Planning Commission's board room. 108. Fontaine obtained separate counsel to represent him in the matter. a. Scott retained Gregory C. Hartman of the law firm of Hartman, Hartman, Howe & Allerton to represent him in the matter. 109. Hartman entered negotiations in July 1998 with Waste Management concerning a financial settlement on behalf of Mark Scott and a retainer agreement by which Scott, as an attorney, would represent Waste Management upon request at an agreed hourly rate. a. Scott's proceeds in settlement were derived from discussions with Fontaine who had already agreed to an apportionment with Berks County, following the County's refusal to arbitrate an apportionment of proceeds. 110. Waste Management informed Hartman that in order for the parties to settle, Respondent must agree in part not to represent clients against Waste Management. 111. Hartman suggested to Waste Management's attorney that the only ethical means by which to prevent Respondent from representing adverse clients would be to retain the Respondent as counsel to Waste Management. a. Waste Management agreed to this alternative means by which to preclude Respondent from participating in future third party litigation. 112. Gregory C. Hartman, a member of the Berks County Solid Waste Authority and an attorney who represented Scott during the settlement negotiations with Waste Management, averred in a sworn affidavit as follows: a. The authority transfers funded the county's litigation as intervener in a permit appeal involving an Eastern Expansion of the Pottstown Landfill, although the county could have employed the funds for other purposes in its discretion. b. Commissioner Scott had initiated the Pottstown Landfill appeals as a private litigant late in 1995 prior to taking office. As an authority member, he described the progression of the county's litigation from time to time in order to inform the board. Scott 00- 075 -C2 Page 17 c. Late in 1996, the county was successful in obtaining the right to belatedly comment on the Eastern Expansion Permit as directed by an opinion and order of the Environmental Hearing Board. A portion of the escrow funds were transferred to the county to assist in payment of a consulting firm hired to prepare the comments. d. But for Commissioner Scott's timely filed 1995 appeal as a private litigant, the county would not have been able to intervene and successfully invoke its right to comment on the expansion application that had been approved. e. Following the DEP's rejection of the county's comments in September of 1997, Commissioner Scott had joined as a party litigant in subsequent permit appeals at the request of county counsel. f. On June 16, 1998, Commissioner Scott wrote an extensive disclosure letter to Solicitor Masano which was a sequel to a similar letter timely provided to her on January 22, 1998. Among other things, the letter highlights the refusal of the county to engage in a binding arbitration process that could have objectively addressed the interests and contributions of all parties who were required to simultaneously settle per Waste Management. Commissioner Scott inquired of me sic] as to whether he was obligated to accept the terms of the required settlement without any monetary proceeds. Hartman informed him that he was not so obligated and proceeded to represent him in negotiating a settlement that could partially ameliorate the negatives entailed in settlement. g. h. Commissioner Scott's settlement proceeds were not provided by the county, but were determined in discussions with Fontaine after Fontaine and the county had agreed to a division of proceeds with Fontaine represented by separate counsel. But for Commissioner Scott's contribution in starting, assisting and settling the Pottstown Landfill litigation, the county would have none of its lucrative settlement. 113. As a member of the Berks County Solid Waste Authority, Hartman had participated in the authority's decision to transfer funds to Berks County for the purpose of assisting the county in the progression of the Pottstown Landfill litigation. a. Hartman later became Scott's retained attorney for the purposes of settlement negotiations with Waste Management. b. Hartman also acted as Berks County's intermediary counsel due to conflict issues involving a merger. c. Hartman was compensated by Scott in the amount of $8,166 for his representation services in relation to the settlement proceedings. 114. In July of 1998 Charles Gutshall and the law firm of Rhoads & Sinon realized that they had a conflict and withdrew from their representation of Berks County during the settlement negotiations. a. The conflict was the result of a merger. 115. Gregory C. Hartman, Esquire, Scott's attorney, assisted in the negotiations with Waste Scott 00- 075 -C2 Page 18 Management on behalf of Berks County. 116. Specially appointed Solicitor Charles Gutshall averred that he made the request upon Scott to settle with Waste Management in order to effectuate the county's settlement. a. Waste Management insisted upon a total settlement with all parties. Accordingly, if Scott refused to settle, the county's ability to receive a potential $5.4 million would have been thwarted. 117. The details of the monetary portion of Berks County's settlement with Waste Management, Inc. provided for the potential of $5,433,332.80 in payments. a. Payments were guaranteed annually until 2010. b. These payments would equal $2,433,333. c. Payments thereafter are contingent on whether Waste Management is accepting waste for disposal at the Pottstown Landfill. d. Payments, if required, were to be made over a period of twenty -eight (28) years beginning in 1998 and terminating in 2025. e. These payments ranged from a low of $166,666.67 to a high of $283,333.32. 118. Scott drafted a provision in the county's settlement regarding the imposition of fines by DEP. a. This clause provided that if DEP imposed any fines relating to the Pottstown Landfill the county would receive a matching amount. b. The county realized a gain of $74,000 as a result of a fine levied upon Waste Management by DEP in March of 2003. 119. After the initiation of the settlement negotiations in January of 1998, Scott forwarded a communication to Berks County Solicitor Heidi Masano, dated January 22, 1998, which in effect discloses his financial interest in the potential settlement and which communication further seeks the County's waiver of any and all possible conflicts of interest which may exist regarding his participation in the legal actions involving Waste Management, Inc. and the Pottstown Landfill. a. As part of this communication, Scott outlines for Masano the background of the litigation and further delineates his participation therein. b. Scott specifically urges Masano to consider his previously uncompensated legal work and strategic involvement in this matter when rendering her opinion and issuing waivers. 120. During the period of time when settlement negotiations were in process, Berks County Solicitor, Heidi Masano, requested an opinion from the Pennsylvania Bar Association Ethics Committee regarding the requirements under the Pennsylvania Rules of Professional Conduct regarding the issue of a county commissioner who represents a private litigant in a matter in which the county is also involved and where the attorney is also a party to the proceedings, which attorney may participate in the ultimate financial settlement of such proceedings. a. As part of its response to Masano, the Ethics Committee of the Pennsylvania Bar Association noted that to the extent the inquiry raised questions under the Scott 00- 075 -C2 Page 19 State Ethics Act, such inquiries were beyond the scope of the committee's authority and no response would be made in relation thereto. b. The letter directed Masano to the State Ethics Commission, which was authorized and equipped to provide advisory opinions with respect to ethical dilemmas arising under that statute. c. The opinion indicated that it was assumed that the attorney did have an obligation to comply with all applicable legal requirements including the State Ethics Act. d. This response was issued on June 3, 1998. 121. No opinion was requested by anyone from the State Ethics Commission as suggested by the Pennsylvania Bar Association Ethics Committee. 122. Masano shared this opinion with all three commissioners and Scott's private Counsel Gregory Hartman. 123. In May of 1998, as settlement discussions became more serious, Heidi Masano, on behalf of Commissioners Pyle and Reber, requested the advice of Special Counsel, Charles Gutshall, as to whether any prohibitions would exist under the Pennsylvania State Ethics Law regarding the actions of Reber and Pyle in participating in approving a settlement of litigation with Waste Management, based upon all of the facts that were known to exist at that time. 124. In a letter dated May 26, 1998, from Charles Gutshall to Heidi Masano, Solicitor for Berks County, Gutshall opined that in light of the fact that neither Reber nor Pyle had a personal interest, either direct or indirect in the subject matter or settlement of the litigation, no prohibitions would exist upon them under the Pennsylvania State Ethics Law in relation to voting on and approving the final settlement of the matter. a. As part of this letter, Gutshall specifically noted, "As you know, we have not been engaged to provide any opinion with respect to Commissioner Scott's role in voting on /abstaining from this settlement decision." b. Gutshall's letter was copied to all three commissioners. 125. In a letter dated June 12, 1998, from his Attorney Gregory Hartman, Scott was advised that under the provisions of the Ethics Act he must, Abstain from any actions in his capacity as a public official which may constitute a conflict." a. Scott did not participate in the county's acceptance of the settlement agreement. b. Hartman's advice was provided after Scott had participated in other official actions relating to the Pottstown Landfill litigation. 126. By way of a letter of June 16, 1998, to Heidi Masano, Berks County Solicitor, Scott advised Masano of his intent to participate in a settlement agreement regarding the Pottstown Landfill litigation. a. At this time, Scott did not know and thus did not delineate any of the specific details of his settlement agreement with Waste Management, Inc. in this letter. Waste Management was not interested in settling this matter unless such was done with all parties. Scott 00- 075 -C2 Page 20 b. Scott advised Masano of his belief that he was entitled to receive compensation for that which he was relinquishing and agreeing to forebear from. c. Scott advises Masano that: This letter is prompted in part by the County's desire that I join in the proposed settlement with Waste Management as an individual party. The proposed settlement entails a number of problematic releases which have a material impact on me as an individual, husband, father and landowner in an area previously affected by odors from the landfill. This settlement proposes that I refrain from "opposing" the landfill in a broad fashion that precludes me from compensation in tort and even as an attorney who might represent complainants asserting claims against the dump. The settlement leaves me and my family at the mercy of DEP to protect interests it has traditionally ignored unless pushed by litigants such as I. Assuming I settle my appeal in the proposed terms, for thirteen years my rights and opportunities will be dramatically curtailed to an extent greater than that experienced by the County. The question that hence arises is what, if anything, I will accept to withdraw from the litigation and execute the necessary releases so that the County may obtain its windfall. For the record, I did not commence nor continue this litigation with monetary settlement as a goal. It was only at the point where the expense of litigation became a political concern to my colleagues and regulatory changes were in the offing that I accepted the concept of a settlement entailing monetary compensation. Until recently I did not foresee the forfeiture of my personal rights as a condition to such a settlement. However, it is clear now that very real sacrifices and forbearance on my part are a condition to settlement, and frankly, I am unwilling to accept such terms gratis. My efforts in this matter were more than instrumental in achieving the County's gains. They were crucial. It would be unfair, to say the least, to ask that I walk away from this unsuccessful litigation in worse condition than when I started it. 127. As part of this letter, Scott acknowledges that he took actions as a County Commissioner to advance the goal of the litigation which was to stop Waste Management's desired expansion of the landfill. a. Specifically, Scott noted that: "I am proud to have played a pivotal role in this achievement as a lawyer, litigant and Commissioner, and I believe that I have handled these diverse roles with the utmost concern for fairness to all under the circumstances." 128. On August 19, 1998, Mark Scott executed a Non - Refundable Retainer Agreement outlining the conditions of his representation of Waste Management for an annual retainer fee of $5,000.00 and set forth the hourly billing rate and other details for any legal work performed on behalf of Waste Management. 129. The details of the settlement agreement and the Non - Refundable Retainer Agreement entered into between Mark Scott and Waste Management, Inc. were made confidential at Scott's request. Scott 00- 075 -C2 Page 21 a. During an interview with representatives of the State Ethics Commission, Scott admitted that it was his request to keep the terms and conditions of his settlement agreement with Waste Management, Inc. confidential because he did not want the terms and conditions of his financial agreement to become public knowledge. 130. The settlement between Waste Management, Inc. and Mark Scott provided for the potential of $672,075.78 in payments from Waste Management, Inc. a. Payment to Scott was to be made over a period of twenty -eight (28) years commencing in 1998 and terminating in 2025. b. Payments are guaranteed until 2010 and would total $230,468. c. Payments thereafter through 2025 are contingent upon the continued operation of the Pottstown Landfill and whether it is accepting waste for disposal in upper Pottsgrove Township, Montgomery County, where Waste Management's land holdings are currently zoned in a manner which would preclude landfill operations even if approval were to be given by DEP. d. Payments to Scott would be made on an annual basis from a low of $15,031.08 to a high of $35,943.89. e. To date, Scott has received $108,245 of the settlement amount as of January. 131. In addition to the foregoing monetary settlement, Waste Management, Inc. also agreed to pay Scott a fee of $5,000 per year to serve as retained counsel for any legal services which may be required. a. Scott had confirmed his retainer agreement to act as counsel for Waste Management on August 19, 1998, as suggested by Waste Management as a condition to Waste Management agreeing to settle with the county. b. Scott received payments under this retainer agreement for the years 1998, 1999, 2000 and 2001 for a total amount of $20,000.00. c. On January 19, 2001, Scott returned the 2001 annual retainer of $5,000 he had received on June 12, 2001, for the calendar year 2001 and terminated this retainer agreement with Waste Management, Inc. d. Scott received a total of $15,000 as a result of the retainer agreement. 132. As part of the settlement agreement, Scott agreed to not oppose or provide financial, technical or other assistance to any person for the purpose of: a. opposing or objecting to any construction or operation on or related to the Pottstown Landfill, including to but not limited to ancillary activities at the Pottstown Landfill; b. opposing or objecting to any expansions of the Pottstown Landfill through the year 2025; c. opposing or objecting to any applications or other submissions by [sic] to the Pennsylvania Department of Environmental Protection ("DEP"), zoning applications, land development approval requests, construction or building permit requests or other operational changes relating to the Pottstown Landfill or activities ancillary to the Pottstown Landfill; and Scott 00- 075 -C2 Page 22 d. Organizing or commencing any class action lawsuit of any kind against Waste Management, its parent, subsidiaries or affiliated companies. 133. Scott has stated that he believed that his participation in the settlement agreement was in accordance with the advice and approval of Attorneys Gutshall, Hartman and Schmehl as evidenced by the three sworn affidavits of Judge Schmehl, Specially Appointed Solicitor Gutshall, and Attorney Gregory Hartman. 134. Scott has stated that although he did not believe that the settlement was a fair resolution of the matter, he felt coerced to comply in order to insure that the county would receive its share of the financial proceeds. 135. Berks County Commissioners Reber and Pyle were motivated to settle the litigation with Waste Management because the legal fees continued to increase to nearly six times the original estimate from Rhoads & Sinon. a. This concern was confirmed by Charles Gutshall in a letter to Heidi Masano, County Solicitor, dated May 26, 1998, wherein it was noted that: In short, if we win, the Pottstown Landfill will be immeasurably delayed but will, nevertheless, continue to exist and expand without a guaranteed closure date. Finally, proceeding with litigation places the County in the position of incurring substantial legal fees without the $2.45 million payment from Waste Management that Berks County can achieve through this settlement. b. This letter was copied to all commissioners. 136. Commissioners Pyle and Reber were not aware that Scott was seeking a financial settlement with Waste Management until the course of the settlement negotiations unfolded. a. This occurred around January 7, 1998, when such was disclosed by Scott in a letter to Solicitor Heidi Masano. 137. On August 20, 1998, the Berks County Board of Commissioners, at a public meeting, reviewed the details of the settlement agreement with Waste Management, Inc. a. Commissioner Scott presented a historical overview of the litigation including appreciation to certain individuals involved. b. Attorneys Charles Gutshall and Ken Joel of Rhoads & Sinon explained the details of the settlement. c. The Board of Commissioners voted 2 -0 in favor of the settlement proposal. d. Mark Scott abstained from the vote for reasons explained by Solicitor Alan S. Miller who read a memorandum explaining Scott's reasons for abstention. e. The details of Scott's settlement were not disclosed to the public. 138. Appellants Scott and Fontaine individually, and Berks County, signed their respective settlement agreements with Waste Management, Inc. on August 20, 1998. Scott 00- 075 -C2 Page 23 III. DISCUSSION: At all times relevant to this matter, the Respondent, Mark Scott (also referred to herein as "Respondent," "Scott" or "Respondent Scott') 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 seq., § 1101 et seq., which Acts are referred to herein as the "Ethics Act." The allegations are that Mark Scott, as a Berks County Commissioner, violated Section 3(a)/1103(a) of the Ethics Act when he used the authority of his office for a private pecuniary benefit when he participated in discussions and actions of the Berks County Commissioners to intervene in a legal proceeding filed against Waste Management, Inc., at a time when he was a party to the legal proceeding against Waste Management; and when Scott, in his capacity as a Berks County Commissioner and Member of the Berks County Solid Waste Authority used the authority of his office for a private pecuniary benefit when he participated in discussions, actions and votes in approving the transfer of funds from the Solid Waste Authority to Berks County to cover legal fees for the legal proceeding against Waste Management, Inc., at a time when he was a private party to the legal proceeding against Waste Management. Pursuant to Section 3(a)/1103(a) of the Ethics Act, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest: Section 311103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.S. § 403(a)/65 Pa.C.S. § 1103(a). The following terms pertaining to conflicts of interest are defined under the Ethics Act as follows: Section 211102. 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. 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. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. 65 P.S. § 402/65 Pa.C.S. § 1102. Scott 00- 075 -C2 Page 24 Section 3(a)/1103(a) of the Ethics Act prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are reproduced above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. Respondent Scott has served as a Berks County Commissioner from January 2, 1996, to the present. Scott served as Chairman of the Berks County Board of Commissioners during 1996. Scott also served as a member of the Berks County Solid Waste Authority Authority ") from 1992 to 1998. Scott served as Executive Director of the Authority from September 1992 to December 31, 1995. In his private capacity, Scott is a resident of Douglass Township, Berks County, and an attorney licensed to practice law in Pennsylvania. This case involves Scott's actions as a Berks County Commissioner and as a Member of the Authority to oppose a landfill expansion permit that he was challenging in his private capacity. On October 13, 1992, Waste Management, Inc. filed an application with what is now known as the Pennsylvania Department of Environmental Protection, hereinafter DEP, for a permit for the eastern expansion of the Pottstown Landfill. On October 2, 1995, DEP authorized the eastern expansion of the landfill under DEP permit no. 100549 ( "Landfill Expansion Permit "). Scott owns a 127 -acre farm located two miles west of the landfill. On November 20, 1995, Scott and John William Fontaine, I I ( "Fontaine "), a resident of neighboring Montgomery County, filed separate Notices of Appeal regarding the Landfill Expansion Permit with the Environmental Hearing Board ("EH B'). Scott and Fontaine filed the appeals as private citizens acting pro se, although Scott later represented Fontaine at various stages of the process. The appeals did not demand damages or compensation, and the parties have stipulated that the EHB is not authorized to award same. In January 1996, shortly after taking office as a Berks County Commissioner, Scott approached the other two Commissioners, Randy Pyle ( "Pyle ") and Glenn Reber ( "Reber "), and requested their support in having Berks County intervene in the appeal. Neither Pyle nor Reber had any prior knowledge of the issuance of the Landfill Expansion Permit. Scott believed that the County's participation was essential in order for the litigation to succeed. On January 30, 1996, at a Pre - Commissioner's Board meeting, Scott presented a resolution that would authorize the County to intervene in the appeal. At a meeting of the Board two days later, Scott delineated the litigation to that point, detailing his personal role and his perspective as a commissioner as to the impact of the expansion. Scott raised the issue of the lack of host fees being forwarded to Berks County by Montgomery County. Another Berks County resident made an appeal for County assistance to oppose the landfill. A motion was made by Reber and seconded by Pyle to approve the resolution authorizing the County's intervention in the appeal. The motion carried with Scott abstaining. Shortly thereafter, the County intervened in the appeal under Scott's docket number. The County's intervention provided financial resources to carry on the litigation and brought the weight of the authority of the County to the litigation. Throughout the legal proceedings that ensued, Scott took numerous actions as a public official to advance the challenge to the Landfill Expansion Permit. Scott acted as the lead county commissioner to advance the interests of the county in relation to the litigation and served as the liaison county commissioner to deal with staff and others regarding the County's involvement. Scott regularly reported to the other county commissioners regarding the litigation. Scott used Berks County personnel, offices, facilities and equipment to prepare Scott 00- 075 -C2 Page 25 pleadings, conduct research, hold meetings and perform other responsibilities in relation to the litigation, including his and Fontaine's personal appeals. Scott took numerous actions as a Commissioner and as an Authority Member to secure financing for the challenge to the Landfill Expansion Permit from a litigation escrow account maintained by the Authority. Scott's first official action in this regard occurred prior to May of 1996, when Scott approached the other Berks County Commissioners and advised them of the existence of the escrow account. Scott suggested to the other county commissioners that the Authority could allocate funds from the escrow account for the pursuit of the County's litigation against Waste Management, Inc. Scott recommended that the Authority be approached in an effort to obtain such funding. This initiated what was to be the first of numerous transfers of funds from the Authority's escrow account to finance the challenge to the Landfill Expansion Permit. Release of the funds required approval of both the Authority and a majority of the Berks County Commissioners. Scott's official actions as a Member of both Boards with regard to these funds are detailed in Findings 44 -46, 50, 59 -60, 69 -71, and 78. Such actions included initiating and participating in Board discussions, making requests, suggestions or recommendations; bringing a resolution to the floor; seconding motions; voting; and signing a resolution. Some of the transfers as to which Scott had direct official involvement were to defray costs of the challenge generally (Findings 44 -46, 50), while others were linked to specific costs for hiring environmental experts (Findings 59 -60) and outside legal counsel (Findings 69 -71, 78) as the matter proceeded. The transferred funds totaled $128,687.42 (Finding 91 a). In addition to the above, on August 1, 1996, Scott used Berks County stationery to seek the support of other governmental bodies in opposing the rezoning of the land that was to be used for the expansion of the Landfill. On November 6, 1996, the EHB issued an opinion and order, which, inter alia, remanded the matter to the Department for issuance of appropriate notices and an opportunity for the County and its citizens to submit comments and participate in a public hearing. Scott participated in numerous official actions with respect to the preparation of the County comments. Scott advised the Berks County Board of Commissioners that he was aware of certain environmental experts, Anthony Mitchell and Thomas Germine, who would be able to assist by providing the comments on behalf of the County. Scott sought a proposal from Mitchell and Germine for such services. On January 2, 1997, the Berks County Board of Commissioners, by motion of Commissioner Pyle, seconded by Scott, approved a resolution authorizing the County to proceed with securing the services of Mitchell and Germine at a cost not to exceed $5,000.00. On February 13, 1997, Scott presented a resolution that would enable Mitchell and Germine to provide additional consultation services related to the landfill litigation at a cost of $20,000. The resolution was adopted unanimously with Scott's participation. On February 27, 1997, Scott made a motion, seconded by Pyle, to adopt a resolution authorizing the submission of the Landfill Expansion Permit comment letter as prepared by Mitchell and Germine. The resolution was signed by all three Commissioners including Scott. The parties have stipulated that the acquisition of the expert services of Mitchell and Germine would inure to the benefit of Scott and Fontaine as well as the County in that the issues and interests of all three parties were consolidated in the same challenge to the Landfill Expansion Permit. On September 15, 1997, DEP issued a formal comment and response document concluding that the County's comments raised no basis for modifying or revoking the Landfill Expansion Permit. Scott advised the Berks County Solicitor that the County was going to have to acquire the services of other attorneys with expertise in environmental litigation. That same month, Scott sought a proposal from the law firm of Rhoads & Sinon for representation of Berks County in the ongoing challenge to the Landfill Expansion Permit. Rhoads & Sinon submitted a proposal which estimated the cost of such legal representation at $50,000. Scott sought the support of his fellow Commissioners to accept the proposal. The Commissioners met in executive session to review the proposal, and Scott reviewed the engagement letter at a Scott 00- 075 -C2 Page 26 public meeting. On October 2, 1997, Scott made a motion and voted in favor of taking the necessary actions to hire Rhoads & Sinon as Special Counsel. As of the date that Rhoads & Sinon was hired, Scott had no pending litigation with Waste Management. On October 15, 1997, Berks County, Scott and Fontaine all filed appeals with the EHB. A related mandamus action was filed with the Commonwealth Court of Pennsylvania. Rhoads & Sinon periodically invoiced Berks County for services relating to the challenge to the Landfill Expansion Permit. In his capacity as a public official, Scott provided confirmations to the Berks County Solicitor, Heidi Masano, regarding the availability of funds for payment of the invoices. The total amount paid to Rhoads & Sinon for representation of Berks County from October 1997 through December 1998 was $283,895.63. Some of the firm's work for which the County was billed involved the completion of legal documents submitted jointly on behalf of the County, Scott and Fontaine. Some of the costs paid by Berks County were likewise incurred on behalf of all three of these parties. Scott, as a private litigant, was also included on jointly filed pleadings prepared by the County Solicitor. Ultimately, the challenge to the Landfill Expansion Permit was settled. Early settlement negotiations are described at Findings 102 -104. Waste Management began firm settlement overtures in January of 1998. Waste Management insisted upon a total settlement with all parties. By letter dated January 22, 1998, to Masano, Scott sought the County's waiver of any and all possible conflicts of interest regarding his participation in the legal actions involving Waste Management, Inc. and the Pottstown Landfill. There were communications between Masano and the Pennsylvania Bar Association Ethics Committee and between Scott's attorney, Gregory C. Hartman, and Scott, regarding potential conflict(s) of interest. By letter dated June 12, 1998, Hartman advised Scott that under the provisions of the Ethics Act he must, "Abstain from any actions in his capacity as a public official which may constitute a conflict." This advice was provided after Scott had already participated in official actions involving the challenge to the Landfill Expansion Permit. By letter dated June 16, 1998, to Masano, Scott stated his belief that he was entitled to compensation for what he was agreeing to and relinquishing. Scott acknowledged that he took actions as a County Commissioner to advance the goal of the litigation, which was to stop Waste Management's desired expansion of the landfill. The parties have stipulated that if Scott had refused to settle, the County's ability to receive its settlement - -a potential $5.4 million - -would have been thwarted. Scott has stated that although he did not believe that the settlement was a fair resolution of the matter, he felt coerced to comply in order to ensure that the county would receive its settlement proceeds. Scott has also stated that he believed that his participation in the settlement agreement was in accordance with the advice and approval of other attorneys involved (see, Findings 68, 81, and 112). On August 20, 1998, the Berks County Board of Commissioners voted 2 -0 in favor of the settlement proposal. Scott presented a historical overview of the litigation but abstained from the vote. The Solicitor read a memorandum explaining Scott's reasons for abstention. The details of Scott's settlement were not disclosed to the public. On that same day, Appellants Scott and Fontaine individually, and Berks County, signed their respective settlement agreements with Waste Management, Inc. The settlement with Scott provided for the potential of $672,075.78 in payments to Scott as set forth in Finding 130. Scott agreed to certain restrictions against taking action against the Pottstown Landfill, Waste Management, its parent, subsidiaries or affiliated companies. Waste Management agreed to pay Scott an annual retainer in order to preclude Scott 00- 075 -C2 Page 27 Scott from future representation of clients against it. Scott ultimately terminated the retainer agreement. To date, Scott has received $108,245 of the settlement amount plus a total of $15,000 under the now terminated retainer agreement. 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. The parties' Consent Agreement proposes that this Commission find: (1) that an unintentional violation of Section 1103(a) of the Ethics Act occurred when Scott, in his capacity as a Berks County Commissioner and as a Member of the Berks County Solid Waste Authority, participated in various discussions, deliberations and actions of the Berks County Commissioners and of the Authority and utilized certain county resources regarding an appeal of a landfill permit and related legal proceedings involving Waste Management, Inc., at a time when he was a party to the appeal and legal proceedings; and (2) that although Respondent has asserted various defenses in both his Answer to the Investigative Complaint and his Motion to Dismiss said Complaint, including his reliance on both county and private attorneys regarding the actions he took, there nevertheless exists a private pecuniary benefit necessitating the conclusion delineated above. Additionally, Scott has agreed that if the Consent Agreement is accepted, this Commission will order as a condition of such acceptance that Scott must forego the receipt of any future payments due him by Waste Management, Inc. that are related to the appeal /litigation that was the subject of the instant proceedings. Scott has agreed to provide the Investigative Division with documentation that he has taken steps to initiate compliance with this particular provision. In considering the Consent Agreement, it is clear that a violation of Section 1103(a) of the Ethics Act occurred. The element of use of authority of office has been established by the numerous actions detailed above that were taken by Scott as a Berks County Commissioner and as a Member of the Authority to advance the Landfill Expansion Permit challenge. Such actions included: requesting the support of his fellow County Commissioners in having the County intervene in the appeal; presenting a resolution authorizing the County's intervention; initiating and participating in Board discussions about the litigation; acting as the lead county commissioner and liaison commissioner in relation to the litigation; reporting to the other county commissioners regarding the litigation; using Berks County resources in relation to the litigation, including his and Fontaine's personal appeals; acting to secure the services of environmental experts and outside counsel to assist with the challenge; and advocating and acting to secure financing for the challenge from a litigation escrow account maintained by the Authority. The element of a private pecuniary benefit to Scott has been established by: (1) the benefit to Scott's private challenge to the Landfill Expansion Permit which resulted from the intervention of Berks County and the use of County resources to carry on the challenge; and (2) the financial settlement between Scott and Waste Management, Inc. Therefore, we agree with the parties that a violation of Section 3(a)/1103(a) of the Ethics Act occurred when Scott, in his capacity as a Berks County Commissioner and as a Member of the Berks County Solid Waste Authority, participated in various discussions, deliberations and actions of the Berks County Commissioners and of the Authority and utilized certain County resources regarding an appeal of a landfill permit and related legal proceedings involving Waste Management, Inc., at a time when he was a party to the appeal and legal proceedings. See, Cipullo, Order 1079; Dusenberry, Order 1064; Pekarski, Order 1052. Intent is not a requisite element for a violation of Section 3(a)/1103(a) of the Ethics Act. See, e.q., Yocabet v. State Ethics Commission, 531 A.2d 536 (Pa. Cmwlth. 1987). Nevertheless, we find that the aforesaid violation was unintentional. Based upon the facts as Scott 00- 075 -C2 Page 28 stipulated by the parties, it would appear that Scott's intentions were focused upon stopping the landfill expansion, Scott perceived his actions to be in furtherance of common interests, and Scott accepted a financial settlement because Berks County and Fontaine wanted to settle and Waste Management, Inc. insisted upon a total settlement including all parties. Despite Scott's lack of intent to violate the Ethics Act, and although Scott has asserted various defenses in both his Answer to the Investigative Complaint and his Motion to Dismiss said Complaint, including his reliance on both county and private attorneys regarding the actions he took, there nevertheless exists a private pecuniary benefit necessitating the conclusion delineated above that an unintentional violation of Section 3(a)/1103(a) of the Ethics Act occurred. 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, per the Consent Agreement of the parties, Scott is directed to forego the receipt of any future payments due him by Waste Management, Inc. that are related to the appeal /litigation that was the subject of the instant proceedings. Scott is further directed to provide the Investigative Division with documentation that he has taken steps to initiate compliance with this particular provision of the Consent Agreement. 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. Mark Scott ( "Scott "), in his capacity as a Berks County Commissioner and Member of the Berks County Solid Waste Authority, has at all times relevant to these proceedings 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." 2. An unintentional violation of Section 3(a)/1103(a) of the Ethics Act occurred when Scott, in his capacity as a Berks County Commissioner and as a Member of the Berks County Solid Waste Authority, participated in various discussions, deliberations and actions of the Berks County Commissioners and of the Authority and utilized certain County resources regarding an appeal of a landfill permit and related legal proceedings involving Waste Management, Inc., at a time when he was a party to the appeal and legal proceedings. 3. Although Scott has asserted various defenses in both his Answer to the Investigative Complaint and his Motion to Dismiss said Complaint, including his reliance on both County and private attorneys regarding the actions he took, there nevertheless exists a private pecuniary benefit necessitating the conclusion delineated above. 4. Per the Consent Agreement of the parties, Scott must forego the receipt of any future payments due him by Waste Management, Inc. that are related to the appeal /litigation that was the subject of the instant proceedings. In Re: Mark Scott ORDER NO. 1278 File Docket: 00- 075 -C2 Date Decided: 4/4/03 Date Mailed: 4/28/03 1. Mark Scott ( "Scott ") committed an unintentional violation of Section 3(a)/1103(a) of the Ethics Act when, in his capacity as a Berks County Commissioner and as a Member of the Berks County Solid Waste Authority ( "Authority "), he participated in various discussions, deliberations and actions of the Berks County Commissioners and of the Authority and utilized certain County resources regarding an appeal of a landfill permit and related legal proceedings involving Waste Management, Inc., at a time when he was a party to the appeal and legal proceedings. 2. Per the Consent Agreement of the parties, Scott is directed to forego the receipt of any future payments due him by Waste Management, Inc. that are related to the appeal /litigation that was the subject of the instant proceedings. 3. Per the Consent Agreement of the parties, Scott is directed to provide the Investigative Division of the State Ethics Commission with documentation that he has taken steps to initiate compliance with paragraph 2 above. 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