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HomeMy WebLinkAbout1268 ShayIn Re: David Shay 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- 035 -C2 Order No. 1288 6/23/03 7/8/03 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Tax Year Wages 1999 $325.47 (township employment) $1,875.00 (meeting pay) 2000 $374.50 (township employment) $1,875.00 (meeting pay) 2001 $1,875.00 (meeting pay) 2002 $1,875.00 (meeting pay) Total Disbursements to Shay $8,199.97 Shay 02- 035 -C2 Page 2 I. ALLEGATION: That David Shay, (a public official/ public employee) in his capacity as a Supervisor for Ross Township, Monroe County, violated Section 1103(a ) of the Public Official and Employee Ethics Law (65 Pa.C.S. §1101 et seq.) when he participated in actions, including but not limited to, participating in discussions and directions given to the township road crew to haul and deliver loads of fill to a property he owns and on which a home was being built. II. FINDINGS: 1. David Shay has been a member of Ross Township, Monroe County, Board of Supervisors since the reorganization meeting of January 5 , 1998. a. David Shay was appointed as Vice - Chairman of Ross Township Board of Supervisors, and currently retains that position. 2. David Shay will, when requested, by the roadmaster assist the road department, only during snow emergencies. 3. David Shay's W2 wages earned from Ross Township, as codified by W2 Wage and Tax Statements from 1999 -2002 are as follows: a. b. 4. David Shay is currently employed as General Manger for Tolino Fuel Services, located in Bangor, PA. 5. Since at least 1999, David Shay has been affiliated with Perception, LLC, a limited liability corporation that has been in existence since January 15', 1999. The Pennsylvania Department of State Corporation Bureau records list Carl Tolino, as member of Perception, LLC. Shay is a member of Perception, LLC. c. Shay lists his interest in Perception, LLC as a 50% partner on Statements of Financial Interests for Calendar Years 2001 and 2002. 6. Statements of Financial Interest on file with Ross Township include the following filings by David Shay: a. Calendar Year: Filed: Position: Creditors: Direct /Indirect Income 1998 on Sec Rev 1 -99 February 1 h , 1999 Supervisor None Ross Township, Tolino Fuel, DMS Collectables Shay 02- 035 -C2 Page 3 All Other Financial Interests: b. Calendar Year: Filed: Position: Creditors: Direct /Indirect Income: All Other Financial Interests: c. Calendar Year: Filed: Position: Creditors: Direct /Indirect Income: All Other Financial Interests: d. Calendar Year: Filed: Position: Creditors: Direct /Indirect Income All Other Financial Interests: e. Calendar Year: Filed: Position: Creditors: Direct /Indirect Income: All Other Financial Interests: None 1999 on Se Rev 1 -00 February 7 h , 2000 Supervisor First Union Bank None Disclosed Perception LLC, 50/50 Partner 2000 on Sec Rev 1 -01 January 29 2001 Supervisor None Ross Township, Tolino Fuel Perception, LLC, Member 2001 on Sec Rev 1 -02 January 16 2002 Supervisor None Ross Township, Tolino Fuel Perception, LLC, 50% Shareholder 2002 March 3 2003 Supervisor None Tolino Fuel, Perception, LLC DMS Train Supply, Owner, Perception, LLC, 50% Member 7. David Shay, along with Howard Beers and Russell Kresge constitute the Board of Supervisors for Ross Township. 8. Perception, LLC, purchased four (4) parcels of land along Stone Hill Lane in Saylorsburg, Ross Township, Monroe County, in February of 2000. a. The land Perception purchased along Stone Hill Road was purchased from Robert and Anita Lorello from Lebanon, New Jersey. b. The land deed was signed on February S 2000, and registered with Monroe County Recorder of Deeds on February 4 2000. c. The land, at the time of purchase, did not have any buildings, real estate or structures erected on it. 9. On January 26 2001, Howard Beers and David A. Corrado, as tenants in common, purchased a parcel of land from David Shay /Perception, LLC. a. The actual consideration price of the property paid to David Shay/ Perception, LLC by Howard Beers and David Corrado was $30,000. 10. Howard Beers, also a Ross Township Supervisor, is president and owner of Howard A. Beers Construction, Inc, located in Saylorsburg, PA. 11. Howard Beers purchased the parcel of land from David Shay /Perception, LLC on January 26, 2001 in order to construct a house to sell to prospective homeowners. Shay 02- 035 -C2 Page 4 12. David Shay /Perception remained owners of the remaining parcels of land next to Beers' residential house on Stone Hill Lane. 13. During the Spring of 2002, Shay approached Beers regarding Beers' company building a house on property owned by Shay /Perception, LLC. a. In April 2002, Beers contracted to build Shay a similar house on Shay's Stone Hill Lane property. b. Beers acted as the general contractor to build Shay's house on Stone Hill Lane. c. Beers began the building in or about April 2002 and completed the building in or about August 2002. d. The Shay house was sold to a private party in or about August 2002. 14. Five months prior to the Shay house sale, Shay /Perception, LLC sold the remaining 2 (two) parcels of land on Stone Hill Lane. a. Companies other than Beers constructed homes on these remaining two parcels of land. 15. The properties of David Shay /Perception, LLC, and Howard Beers on Stone Hill Lane had safety issues relative to the Stone Hill Lane Roadway due to a steep shoulder drop off to the properties from the berm of Stone Hill Lane. a. The length of the drop off on the property from driveway to driveway measured approximately 533 feet. b. The road shoulder and property line had an approximate eight (8) to two (2) foot ledge -like drop off onto the properties owned by Shay and Beers. c. The shoulder drop -off posed a safety threat for high -speed traffic, which may travel out of control around Stone Lane. 16. The Ross Township road department performs maintenance on approximately 52 miles of township roads. a. The maintenance includes the grading of road shoulders. b. The grading of road shoulders is performed on roads throughout the township to widen roads, widen and level shoulders, and remove potentially hazardous limbs and trees from roadways. c. This process is done annually, usually three to four times per year, or when deemed necessary by the road department. 17. During shoulder cutting projects, large amounts of shoulder trimmings, soil and refuse are gathered during the cutting process. 18. Ross Township has an unwritten policy wherein road crew members will inquire to township residents whose properties border a road in which shoulder cuttings are being performed, whether the property owners want road crew members to deposit the trimmings on their properties for fill purposes. 19. Many township residents have obtained the fill material free of charge from township Shay 02- 035 -C2 Page 5 road crew members. a. Township residents are not charged or billed for the hauling of the shoulder cuttings. b. Township road crew members will deposit the shoulder cuttings on the properties of individuals who have requested the shoulder cuttings. 1. Leveling of the shoulder cuttings and fill are the sole responsibility of the property owner(s). 20. Ross Township road crew employees prefer to dispose of fill at properties close to shoulder cutting projects in order to alleviate township working time and wear and tear on township vehicles. a. If a resident of Ross Township requests fill from shoulder cutting projects which may be a substantial distance away from shoulder cutting projects, residents are informed that they will receive fill and shoulder cuttings when the road crew undertakes a project closer to their respective property. 21. Troy Bartron was the Roadmaster for Ross Township from August 2000 until June 3 2002. a. Bartron supervised the entire road crew, when at a full compliment, included 3 full -time employees and 2 part -time road crew members. 22. Bartron, as roadmaster, was responsible for determining locations to dispose of shoulder cuttings if no Ross Township resident was interested in obtaining the free shoulder cuttings. a. A dumping area located behind the Ross Township municipal building can be used if no other property is available to dump the fill. b. Ross Township's dumping facility cannot be used as per the township engineer. 23. Beginning in the Fall of 2000 and through the early Spring of 2002, Ross Township road crew members undertook shoulder cutting projects on many township roadways. 24. During the Summer of 2001, Bartron approached David Shay and inquired as to whether or not he could dispose of the excess shoulder cuttings and fill in the township right -of -way in front of Shay's properties located on Stone Hill Lane. a. Shay informed Bartron that he could dump excess shoulder cuttings in the right -of -way in front of his property if no other township resident requested the fill be dumped on their property. 25. The property to which Shay was referring for dumping purposes included the three (3) properties on Stone Hill Lane that were still owned by Shay /Perception LLC. 26. Each parcel of land once owned by Shay /Perception on Stone Hill Lane has a septic sand mound directly in front of each residence, approximately 40 (forty) feet from the center of Stone Hill Lane road surface. 27. Beginning during the Summer of 2001 and continuing through the Spring of 2002 several loads of shoulder fill material were dumped in the right -of -way in front of the properties formerly owned by Shay. Shay 02- 035 -C2 Page 6 a. Fill material was obtained from various sites in the township. 28. All of the fill that had been hauled and dumped by the township road crew was placed in the right -of -way in front of the sand mounds, closest to the road shoulder. a. Howard Beers excavated, leveled, and spread the fill in the right -of -way creating a descending gradual sloping appearance from the road shoulder to the sand mounds, thus eliminating the former shoulder drop -off and the safety issue. 29. The township did not charge Beers or Shay for the receipt of any shoulder cuttings. a. No township residents have ever been charged for shoulder cutting material. 30. Ross Township never assessed a value to the shoulder- cuttings because it contained tree - trimmings, foliage, different types of soil content, and road refuse. 31. According to Doris Price, Township Secretary/Treasurer, Ross Township does not have a separate account or billing procedures set up to charge or receive monies from depositing and delivery of shoulder trimmings. a. Price Stated that since her tenure as Secretary/Treasurer, she has never received a payment or billed a resident for shoulder- cuttings or for the hauling and dumping of shoulder- cuttings. b. Price stated that it is an "unwritten policy" to give shoulder- cuttings to residents who request them totally free of charge. 32. Also, it is common for PennDOT to dump shoulder cuttings on residents' property to dispose of it. III. DISCUSSION: At all times relevant to this matter, the Respondent, David Shay, hereinafter Shay, has been a public official subject to the provisions of the Public Official and Employee Ethics Law, Act 9 of 1989, Pamphlet Law 26, 65 P.S. § 401, et seq., as codified by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq., which Acts are referred to herein as the "Ethics Act." The allegation is that Shay, as a Ross Township Supervisor, violated Section 1103(a) of the Ethics Act when he directed township employees to utilize township equipment and employee man hours to haul township fill to property he owned. 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 Shay 02- 035 -C2 Page 7 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. 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. Shay has been a supervisor on the three member board in Ross Township, Monroe County, since January 5, 1998. Shay works for the road department only during snow emergencies when requested. In a private capacity, Shay is an employee of Tolino Fuel Services and a member and 50% partner of Perception, LLC (Perception), a limited liability corporation since 1999. Shay has annually filed Statements of Financial Interests (SFI's) on which he disclosed his interest in Perception on his SFI's for the calendar years 1999 through 2002 and Tolino Fuel Services for the calendar years 1998 and 2000 through 2002. Shay /Perception purchased four parcels of land along Stone Hill Lane in Saylorsburg, Ross Township, in February of 2000. Howard Beers, another Ross Township Supervisor, is the president and owner of Howard A. Beers, Inc. In January of 2001, Beers and David A. Corrado purchased one parcel of land from Shay /Perception in order to construct a house to sell to prospective purchasers. Shay /Perception continued ownership of the land next to the Beers' residential house on Stone Hill Lane. In the spring of 2002, Shay asked Beers whether his company would build a house on property owned by Shay /Perception. After Beers constructed a home, Shay sold the house to a prospective homebuyer. Shortly thereafter, Shay /Perception sold the remaining two parcels of land on Stone Hill Lane and unrelated companies constructed homes on those parcels. As to the two properties on which Shay /Perception and Beers built homes, there were safety issues due to a steep shoulder drop off to the properties from the berm of Stone Hill Lane. The Ross Township road department performs the following to maintain the township roads: grading road shoulders, widening roads and shoulders, and removing potentially hazardous limbs and trees from roadways. During such projects, large amounts of shoulder trimmings, soil and refuse are gathered. The township has an unwritten policy whereby the roadmaster will inquire if township residents whose properties border township roads want the crew members to deposit the trimmings on their properties for fill purposes. Many township residents have obtained the fill free of charge and the township does not charge the residents for the hauling. The township road crew seeks to dispose of fill at properties close to the township projects in order to lessen township working time and wear and tear on township vehicles. Troy Bartron (Bartron), who was the Ross Township Roadmaster from August 2000 until June 2002, had the responsibility to find locations to dispose of the shoulder cuttings if no Shay 02- 035 -C2 Page 8 township resident was interested in the material as fill. In the summer of 2001, Bartron approached Shay and inquired if he (Bartron) could dispose of excess shoulder trimmings and fill in the township's right -of -way at Shay's properties located on Stone Hill Lane. Shay told Bartron that the fill could be dumped on the township's right -of -way as long as no other township resident requested such fill. Bartron then instructed the township crew to dispose of such fill in the right -of -way on the Shay /Perception properties. From the summer of 2001 into early 2002, several loads of fill were dumped in the township right -of -way on the properties formerly owned by Shay /Perception and Beers. The township did not charge Beers or Shay for the receipt of any fill as per the township policy not to charge any resident for fill material. No value is assessed for such fill because it contains tree trimmings, foliage, different types of soil content, and road refuse. 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 Consent Agreement proposes that this Commission find that there is insufficient evidence that Shay, in his capacity as a Ross Township Supervisor, used the authority of his office to direct township employees to deliver shoulder cuttings to a property he owns. As to Section 1103(a) of the Ethics Act, one of the requisite elements for establishing a violation is a use of authority of office. Without the required use of authority of office, there can be no violation of Section 1103(a) of the Ethics Act. See, Marchitello /McGuire vs. SEC, 657 A.2d 648 (Pa. Commw. 1994). Under the facts of record that we have before us, we do not find that there is evidence to establish a use of authority on the part of Shay. Factually, as the roadmaster, approached Shay and inquired as to whether Bartron could dispose of excess shoulder cuttings and fill in the township's right -of -way at Shay's properties located on Stone Hill Lane. Shay's response was that Bartron could dump the shoulder cuttings if no other resident requested the fill. The record reflects that from the summer of 2001 until early 2002, several loads of shoulder fill material were dumped in the township right -of -way on the properties formerly owned by Shay /Perception and Beers. However, the record is devoid of any facts to show that such was done at the direction of Shay. Accordingly, Shay did not violate Section 1103(a) of the Ethics Act regarding the delivery of shoulder cuttings to a property he owned, based upon an insufficiency of evidence. 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. IV. CONCLUSIONS OF LAW: 1. David Shay, as a Ross Township Supervisor, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Shay did not violate Section 1103(a) of the Ethics Act regarding the delivery of shoulder cuttings to a property he owned, based upon an insufficiency of evidence. In Re: David Shay ORDER NO. 1288 File Docket: 02- 035 -C2 Date Decided: 6/23/03 Date Mailed: 7/8/03 1. David Shay, as a Ross Township Supervisor, did not violate Section 1103(a) of the Ethics Act regarding the delivery of shoulder cuttings to a property he owned, based upon an insufficiency of evidence. BY THE COMMISSION, Louis W. Fryman, Chair