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HomeMy WebLinkAbout1321 StathasIn Re: Edward Stathas File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Donald M. McCurdy Michael Healey Paul M. Henry Raquel K. Bergen 02- 048 -C2 Order No. 1321 6/8/04 6/16/04 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. 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Stathas 02- 048 -C2 Page 2 I. ALLEGATION: That Edward Stathas, a (public official /public employee), in his capacity as a Commissioner for Upper Allen Township, Cumberland County, violated Sections 1103(a) and 1104(a) provisions of the State Ethics Act (Act 93 of 1998) 65 Pa.C.S. § §1103(a), 1104(a) including but not limited to attempting to use the authority of his office for a private pecuniary gain by directing the township zoning officer and township manager, with threats of termination of their employment, to revoke and /or deny permits issued to a party involved in a lawsuit and /or appeals with Stathas, when permits issued decreased the value of Stathas' property by approximately $45,000; when he failed to disclose on Statements of Financial Interests filed for the 2000 and 2001 calendar years income from Clearseal Systems; and when he failed to disclose his office, directorship or employment with Clearseal Systems on Statements of Financial Interests filed for the 2000 and 2001 calendar years. II. FINDINGS: 1. Edward Stathas has served as a Commissioner for Upper Allen Township, Cumberland County, since January 7, 2002. 2. Upper Allen Township is a first -class township governed by a five - member board of commissioners. 3. The Upper Allen Township Zoning Hearing Board (hereinafter ZHB) is a quasi - judicial board composed of three members. 4. The Upper Allen Township ZHB sets its stated monthly meetings by use of an annual calendar, which meetings are subject to cancellation if the agenda contains no items for its consideration. 5. Zoning in Upper Allen Township is regulated under, "Zoning, Chapter 245 -From the Code of the Township of Upper Allen," the Municipal Planning Code, a comprehensive plan and the BOCA Code, a universal building code. 6. The issuance of various permits in Upper Allen Township lies with the authority of the township zoning officer in accordance with the Municipalities Planning Code (MPC) and township zoning regulations. 7. Gregory and Christy Black are the owners of Black Landscape Contracting, Inc. a. Black Landscape Contracting is registered as a nursery dealer with the Commonwealth of Pennsylvania, Department of Agriculture under Registration No. 002819 8. Black Landscape Contracting was originally located at two separate addresses, 2401 North Front Street, Harrisburg, Pa, and 120 Erford Road, Harrisburg, Pa. a. The North Front Street address was used only as office space. b. The Erford Road address was the actual shop location. 9. In or about 1998, the Blacks purchased property located at 1360 East Lisburn Road, Mechanicsburg, Pa. a. Lisburn Road borders the Blacks' property to the north while private landowners border the property to the south, east, and west. 10. Stathas owns property and resides at 1350 East Lisburn Road, Mechanicsburg, Pa. Stathas 02- 048 -C2 Page 3 a. Stathas' property is located to the immediate west of the Blacks' property at 1360 East Lisburn Road. 11. The property purchased by the Blacks is located in an agricultural zoned district of the township. a. Permitted uses and special exceptions for agricultural zoned districts are documented in Chapter 245 of the Upper Allen Township Code under Schedule B of the Table of Use Regulations. 12. The Blacks filed an application for a special exception regarding their property on East Lisburn Road with the Upper Allen Township ZHB on December 21, 1999. a. The purpose of the Special Exception was, "...to allow Landscaping Contractor's Office in Agricultural Zone." b. Hearing on the application was set by the ZHB for January 13, 2000. 13. Chapter 245, Zoning, from the Upper Allen Township Code sets forth regulations under § 245 -130 regarding notification of individuals for matters before the ZHB. a. The time and place for a public hearing must be published once each week for two successive weeks in a newspaper of general circulation in the municipality. b. Written notice to interested parties must be provided to at least those persons whose properties adjoin or are across public roads from the property in question. 14. The ZHB heard evidence and accepted testimony on the special exception filed by the Blacks (Case No. 00 -2) at the January 13, 2000 meeting. a. No township residents or business representatives presented testimony objecting to the special exception at that time. b. Stathas was not present at the meeting as he had not received notice of such. 15. At the conclusion of the January 13, 2000 meeting, the ZHB, by a vote of 3 -0, approved the request for special exception by the Blacks for a landscape contractor's office in an agricultural zone on East Lisburn Road subject to fulfillment of all township ordinances. a. The ZHB issued a written decision on the case on February 10, 2000. 16. The Blacks were required to submit a Land Development Plan to the township commissioners for approval prior to obtaining a building permit. a. The board of commissioners approved the Blacks' Prel /Final Land Development Plan on September 21, 2000. b. Edward Stathas was not a member of the board of commissioners in 2000. 17. Stathas became aware that the Blacks had received a special exception for their business in approximately November /December 2000. 18. Stathas addressed the board of commissioners as a township resident at the December 12, 2000, commissioners' workshop meeting regarding the development on the Blacks property. Stathas 02- 048 -C2 Page 4 a. Stathas asked the township to stop the construction by Black due to errors in the procedures relating to the special exceptions and due to the unapproved changes in the original land development plan the ZHB had approved. b. Stathas was not a commissioner at this time. c. Stathas, as a citizen, also asked the Commission to stop the Plan from proceeding for the various defects and problems he had outlined in his presentation. d. Stathas claimed the application was filed improperly, that he and three other adjoining property owners were not notified of the application, and that he and three other adjoining property owners were not notified of the ZHB hearing. 19. Stathas subsequently sent correspondence to Randy Souders, township zoning officer, dated December 13, 2000, expressing concerns over the special exception granted and the fact that he had not received notification of the hearing held. a. Attached were at least six letters from other township residents or business representatives claiming no notice had been given. 20. On December 29, 2000, Stathas petitioned the Cumberland County Court of Common Pleas, through his attorney, Keith Brenneman, to file an appeal nunc pro tunc from the decision of the ZHB of Upper Allen Township. c.[sic] The petition was primarily based on the issue that the Stathases had not been notified of the January 13, 2000 meeting. 21. On April 9, 2001, the Cumberland County Court of Common Pleas granted the petition for leave to file an appeal nunc pro tunc from the ZHB decision. a. At the same time, Respondent Stathas asked the township Commissioners to order a stay of further work on the Black property, as provided by Municipal Planning Code §915.1, which request was denied by the Commissioners. 22. Brenneman subsequently filed a notice of land use appeal with the Cumberland County Prothonotary's Office on behalf of the Stathases on May 9, 2001. a. The object of the appeal was to have the Court reverse the ZHB's initial decision on the special exception and remand the matter back to the ZHB for a new hearing. 23. On May 17, 2001, the Blacks' Preliminary /Final Land Development Plan was recorded at the Cumberland County Courthouse, Plan Book 83, Page 52. a. On that same day Building Permit No. 01 -7788 was approved by the township for the Blacks to erect a 120'x 58' office and storage building on the property in question. 24. On August 1, 2001, the Cumberland County Court of Common Pleas issued an Order remanding the matter to the ZHB for the purpose of allowing the appellants (Stathas) the opportunity to present evidence on and seek reconsideration of the special exception granted to the Blacks. 25. The township subsequently held seven hearings on the Blacks' special exception request on the following dates: October 11, 2001; October 26, 2001; November 14, Stathas 02- 048 -C2 Page 5 2001; December 13, 2001; January 10, 2002; January 23, 2002; and January 30, 2002. a. The ZHB allowed any interested individuals to speak at the hearings. 26. Stathas was elected to the position on November 6, 2001, and took office on January 7, 2002, three days prior to the January 10, 2002, ZHB hearing. 27. Providing testimony on behalf of the Stathases was Reynold R. Woof, Jr., principal of Woof Appraisal Group. a. Woof is a State certified general real estate appraiser. b. Woof was requested by the Stathases to complete an appraisal and determine if there would be any damage in value to the Stathas property due to a landscaping business operating on adjoining property. Woof determined the market value of Stathas' property at approximately $290,000.00 prior to the construction on the adjoining property. Woof estimated damages to the appraised property at approximately $45,000.00. e. Stathas was not a commissioner at the time that this appraisal was done. 28. The Blacks also submitted an appraisal which claimed that there would be no diminution in value of the Stathas property provided the Blacks performed additional conditions which were discussed at the hearings as possible remedies to the neighbors' objections. These additional conditions later became the subject of additional requests for zoning enforcement action by Stathas. 28[sic].Stathas authored a letter to Souders, township zoning officer, dated December 31, 2001, requesting a traffic study be done in the 1300 block of Lisburn Road. a. The letter related to a traffic survey that had been sought by a number of neighbors on Lisburn Road as early as December 12, 2000, had been pursued on November 14, 2001, and the subject of a number of comments by concerned neighbors to the Commissioners throughout 2002. b. Stathas requested the review eight days before he was officially sworn into the position of Commissioner. 30. At the January 17, 2002 regular meeting of the Board of Commissioners, Commissioner John Allison reported that he had received a request for the Board to deal with a safety review in the 1300 block of East Lisburn Rd. and presented his findings to the Board. a. Stathas was present at the meeting in his position as a township commissioner. 31. Allison, as the Public Safety Chairman, had conducted a review of the road and reviewed the approvals and recommendations made by staff regarding driveways in the area. c. d. a. Allison's reported that a Highway Occupancy Permit was requested and approved by PennDOT for the Blacks property. b. Allison also noted the Police Department found adequate sight distance and no Stathas 02- 048 -C2 Page 6 accidents in the last five years. 32. Based on the information compiled from township staff, Allison made a motion during the January 17, 2002, meeting, seconded by Commissioner Virginia Anderson, to reject Stathas' request to do a safety study on East Lisburn Road. a. Stathas challenged the decision and cited a PennDOT code that indicated that an officer of the Township can make a request to have the situation looked at by PennDOT. b. Stathas stated that no other situation existed along Lisburn Road where one driveway was a residential driveway and the other was a business driveway. 1. Stathas was referencing the driveway to his residence and the driveway to the Black's business site. c. At the conclusion of the discussion, Allison withdrew his initial motion and made another motion, seconded by Anderson, that based on the request, a study of the newly installed driveway in the 1300 block of East Lisburn Road was reviewed by the Public Safety Officer and also information was reviewed as to the approval of the area and based on that information the Board of Commissioners take no further action. d. The motion passed by a vote of 3 -2 with Stathas and Commissioner David Frazier (Stathas' brother -in -law) voting against the motion. 33. On January 30, 2002, the ZHB voted to deny Blacks special exception request by a 2 to 1 vote. 34. The ZHB issued a written decision dated March 13, 2002, regarding the denial of the Black's Special Exception. 35. Subsequent to the January 30, 2002, denial of the Special Exception, the Black's retained the services of Attorney Charles Zaleski from the firm of Reager & Adler, PC, to represent them in the ongoing situation. 36. Zaleski contacted Souders and expressed the Blacks' desire to operate their business as a permitted use. a. Souders advised that a written description of the proposed use was necessary for review. 37. The Blacks then submitted a zoning permit application to the township on or about March 28, 2002. a. The Blacks submitted the zoning permit application to change the use from a vacant non - residential building for use as an accessory office /storage related to agricultural services and green house accompanied with a building permit application for a poly greenhouse. 38. On April 4, 2002, representatives of Upper Allen Township issued zoning permit numbers 10076 and 10078 and building permit number 10076 to the Blacks. 39. On April 5, 2002, Zoning Officer Souders and David Millitic, township building inspector, conducted a final inspection of the office and shop building on the Blacks property and issued Certificate of Use and Occupancy No. 01 -7788. a. The Blacks occupied the property on that same date. Stathas 02- 048 -C2 Page 7 40. On Friday, April 5, 2002, at approximately 2:30 p.m., Stathas arrived at the township office to meet with Souders and Lou Fazekas, township manager. a. Souders asserts that Stathas instructed Souders to revoke the permits issued under threat of disciplinary action up to and including termination. 41. Stathas denies that he instructed Souders to revoke the permit. 42. Stathas expressed frustration and anger to both Souders and to Fazekas that such could occur with apparent official sanction in light of what Stathas thought was his unappealed success before the ZHB. In making such statement, he did question Souders' judgment and objectivity and fairness. 43. Stathas asserts that such was done only as a citizen and not as a commissioner. 44. Souders did not revoke the permits issued to the Blacks. 45. Souders asserts that both Stathas and Fraizer made comments indicating that his position was in jeopardy. 46. Stathas denies making such statements. 47. Fazekas asserts that both Fraizer and Stathas informed Fazekas that his job as the township manager would be made difficult because the permits had been issued. 48. Stathas denies making such statements. 49. After leaving the township office, Stathas attempted to contact the three members of the ZHB. a. Stathas visited board member Dean Otto's residence and had a specific discussion of his confusion and concerns about the Black property zoning dispute. b. The main issue of concern to Respondent Stathas during the visit at the Otto home was to try to understand what had occurred with regard to the Black property and how he might best appeal or obtain proper review of whatever had happened in the matter. c. Stathas' clear concern was what he could do in response to the latest developments in the Black property zoning dispute. d. Otto informed Stathas that the issuance of permits was a township issue, not a ZHB issue. 50. Stathas contacted board member James Soule via the telephone at Soule's residence on the evening of April 5, 2002, and spoke at length regarding the Blacks' property. a. Stathas questioned what had occurred with regard to the Black property and how he might best appeal whatever had happened in the matter. 51. Stathas unsuccessfully attempted to contact board member Herbert Thieme on the same day, April 5, 2002. 52. On Monday, April 8, 2002, Stathas returned to the township office and asked Fazekas, if he could speak with Zoning Officer Souders. Stathas 02- 048 -C2 Page 8 a. Stathas attempted to speak with Souders privately to discuss the issuance of the permits and to have Souders document the rationale used to issue the permits. b. Fazekas denied Stathas access to speak with Souders in a private setting. 53. The Upper Allen Township Code, Chapter 44, Section 44 -7, gives Fazekas the authority to deny commissioners the opportunity to meet with staff. 54. Fazekas asserts that his denial to permit Stathas to speak with Souders prompted Stathas to again threaten Fazekas with termination from his position. 55. Stathas denies that he made any such threat. 56. Stathas admits that he did observe that if Fazekas and Randy Souders were found to have willfully violated the law in their actions, including zoning decisions, that would be grounds for termination. 57. Stathas filed an application for appeal from the determination of Souders with the ZHB on April 12, 2002, regarding the permits issued to the Blacks. a. Stathas argued that the zoning, building, and occupancy permits issued by Souders were issued in error, contrary to law, and constituted an abuse of discretion. b. A hearing before the ZHB was subsequently scheduled for May 9, 2002. 58. Additionally on April 12, 2002, the Blacks filed a Notice of Land Use Appeal with the Prothonotary's Office in the Cumberland County Court of Common Pleas challenging the denial of the Special Exception by the ZHB. a. The Blacks argued that the decision of the ZHB was arbitrary and capricious, an abuse of discretion, against the weight of evidence, not supported by substantial evidence, and contrary to law. 59. On April 16, 2002, Sounders hand delivered a "stop work" letter to the Blacks pursuant to the Pennsylvania Municipalities Planning Code, Section 915.1, Stay of Proceedings, subsection (a). a. The letter was issued as a result of the appeal filed by Stathas. 60. Discussion regarding Black's Landscape Contracting and permits issued occurred during the Public Comment portion and the Planning and Zoning portion of the April 18, 2002 regular meeting of the township commissioners. a. Black's Landscape Contracting was also discussed during an Executive Session at the April 18, 2002 meeting. b. Minutes note Stathas removed himself from all discussions held regarding Black's Landscape. 61. On May 9, 2002, a hearing was held before the ZHB regarding the permits issued by Souders to the Blacks. 62. ZHB hearings were conducted on June 13, 2002; June 21, 2002; July 11, 2002; and August 11, 2002; however, no testimony on the merits of the appeal was taken. a. At the June 21, 2002 hearing, the ZHB voted to appoint an independent Stathas 02- 048 -C2 Page 9 hearing officer in relation to the Stathas appeal. b. This action was taken by the ZHB after having received an opinion from outside counsel that no members of the ZHB had been disqualified by the contact from Stathas. c. At the July 11, 2002, hearing Steven J. Fishman, Esquire, was appointed as the independent hearing officer. 63. On August 20, 2002, the Cumberland County Court of Common Pleas issued an Interim Order of Court to the Upper Allen Township ZHB regarding the Black's appeal. a. The Court stated that it was unclear as to the law and facts relied upon by the ZHB in support of its action. b. The Court remanded the matter back to the ZHB for a succinct statement of law and facts relied upon to deny the special exception. 1. On October 22, 2002, the ZHB filed a Supplemental Opinion Pursuant to Interim Order of Court. 64. Testimony before Fishman occurred on October 21, 2002, and October 24, 2002, regarding the Stathas appeal. a. Proposed findings of fact and conclusions of law were submitted to Fishman, at his request, by Zaleski, Brenneman, and township solicitor Miller after all testimony had been taken. 65. At the November 12, 2002, work session of the Board of Commissioners, Stathas petitioned the Board for support and assistance in regard to his appeal filed before the ZHB regarding permits issued to the Blacks. a. Stathas excused himself from the board prior to speaking. b. Stathas stated he was addressing the board as a township resident. c. Stathas presented the series of events leading to the present status of the appeal. d. Stathas presented pictures to the Board for review. e. Stathas argued that various ordinance violations existed. f. Stathas challenged the determinations of Souders. g. Stathas questioned how the Board could support the actions occurring at Black's Landscape Contracting. 66. At the conclusion of the discussion, Board Member David Frazer made a series of motions to investigate and /or enforce any current code violations at the Black's property and that the Board appeal the Zoning Officer's decision to the ZHB related to the granting of determination of primary or accessory building as related to permits issued. a. All of Frazier's motions died for lack of a second. b. No official action ensued as a result of Stathas' presentation to the Board. 67. By way of letter dated November 26, 2000, Fishman presented his recommendation to the ZHB that they affirm Souders' decision, in part, and reverse Souders' decision, in Stathas 02- 048 -C2 Page 10 part. a. Fishman recommended affirming permits issued related to the construction and use of the poly greenhouse; and affirming the issuance of the building permit to finish the interior of the existing structure. b. Fishman recommended reversing the permits issued as related to the permitted use of the property for agricultural services; and reversing the permits as related to the use of the renovated existing building as accessory for the use described as agricultural services. 68. At the January 30, 2003, meeting of the ZHB, the board voted unanimously to adopt some of the recommendations of the hearing officer and reject some. a. The ZHB issued its written decision on February 20, 2003. 69. Subsequent to the decision of the ZHB to uphold the issuance of the permits, the Cumberland County Court of Common Pleas reversed the denial of the special exception by the ZHB and ordered that the special exception be granted. 70. Stathas contacted Souders on May 21, 2003 at approximately 8:15 am at the township office via telephone. 71. Souders asserts that during the telephonic contact, Stathas demanded that Souders go to the Black's property and enforce the township ordinances the way Stathas wanted them enforced. a. Souders further asserts that Stathas specifically referenced his position as a township commissioner and chairman of the Public Improvements committee while making the demands and that Stathas threatened Souders with disciplinary action, including dismissal, if his demands were not met. b. Stathas denies making such statements. c. No other individuals were parties to this discussion. The following findings relate to the allegation that Edward Stathas violated the filing requirements of the State Ethics Act 72. Statement of Financial Interests filing requirements for public officials and public employees are mandated by Section 1104 of the State Ethics Act. a. Stathas is required to file a Statement of Financial Interests by May 1 annually in his position as an Upper Allen Township Commissioner. 73. Stathas filed Statements of Financial Interests on March 5, 2001, and January 7, 2002 for calendar years 2000 and 2001 respectfully. a. Stathas did not complete all applicable sections of the Statements of Financial Interests filed. 74. Required disclosures on Statements of Financial Interest include direct or indirect sources of income and office, directorship, or employment in any business. 75. Stathas is employed by Clearseal Systems, an automobile windshield repair service with a principal address of P. 0. Box 602, Camp Hill, PA 17011. Stathas 02- 048 -C2 Page 11 a. Stathas has been employed by Clearseal Systems since at least September 1986. 76. Stathas failed to disclose Clearseal as a direct or indirect source of income and his employment with Clearseal Systems on his Statement of Financial Interests filed for the 2000 calendar year. a. Sections of Stathas' 2000 calendar year Statement of Financial Interest regarding direct or indirect sources of income and employment in any business were both documented as "none ". 77. Stathas failed to disclose Clearseal as a direct or indirect source of income on his 2001 calendar year Statement of Financial Interests. 78. Respondent did list Clearseal as a business in which he had a financial interest. 79. Stathas' 2001 calendar year Statement of Financial Interests was documented as "none" regarding direct or indirect sources of income. 80. Upon notification by the State Ethics Commission of the investigation in the instant matter, Stathas filed amended Statements of Financial Interests for calendar years 2000 and 2001. III. DISCUSSION: At all times relevant to this matter, the Respondent, Edward Stathas, hereinafter Stathas, 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 se ., as codified by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65Pa.C.S. § 1101 et seq., which Acts are referred to herein as the "Ethics Act." The allegations are that Stathas, as an Upper Allen Township Commissioner, violated Sections 1103(a) and 1104(a) of the Ethics Act when he directed or threatened with termination the township zoning officer or township manager to revoke /deny permits issued to a party involved in a lawsuit /appeals with Stathas, when the permits would result in a decrease in the value of Stathas' property; and failed to disclose on Statements of Financial Interests (SFI's) filed for the 2000 and 2001 calendar years employment and income as to Clearseal Systems. 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 93 of 1998 as follows: Section 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public f of ce or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public Stathas 02- 048 -C2 Page 12 official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Section 1104(a) of the Ethics Act requires that each public official /public employee must file an SFI for the preceding calendar year, each year that he holds the position and the year after he leaves it. 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. Stathas has served on the five - member board of commissioners in Upper Allen Township since January of 2002. The township also has a three - member zoning hearing board (ZHB) and a zoning officer who has the power to issue various permits. In or about 1998, Gregory and Christy Black, the owners of Black Landscape Contracting, Inc., purchased property at 1360 East Lisburn Road, Mechanicsburg, which is contiguous to Stathas' property at 1350 East Lisburn Road. The Black's property is located in an agricultural zoned district and an application was filed by them for a special exception to allow a landscaping contractors office. The ZHB set a hearing on the Black's application for January of 2000. Following a hearing on the special exception as to which no township residents or businesses objected, the ZHB by a 3 -0 vote approved the request for the special exception to the Blacks. The ZHB issued a written decision in February of 2000 requiring the Blacks to submit a land development plan to the township commissioners for approval prior to obtaining a building permit. After Stathas became aware of Blacks special exception, he addressed the board of commissioners as a township resident and urged the board to stop the construction by Blacks due to asserted procedural errors relating to the special exception. Stathas then sent letters to Randy Souders, the township zoning officer, expressing concerns that he (Stathas) had not received notification regarding the special exception. On December 29, 2000, Stathas petitioned the Cumberland Court of Common Pleas (Court) to accept the filing of his nunc pro tunc appeal from the ZHB decision on the basis that he had not been given notice. The Court allowed the appeal. Stathas' attorney then filed a notice of land use appeal on May 9, 2001, for the purpose of having the Court reverse the ZHB's initial decision. The Blacks filed their preliminary final land development plan on May 17, 2001, after which a building permit was approved for their property. On August 1, 2001, the Court issued an order remanding the matter to the ZHB for the purpose of allowing Stathas to present evidence and seek reconsideration of the special exception granted to the Blacks. Subsequently, the township held seven hearings on the Black's special exception. Stathas took office as a commissioner on January 7, 2002, three days prior to a ZHB hearing. At that hearing, Stathas utilized an appraiser who testified that the damages to Stathas' property from the grant of the special exception would amount to $45,000.00. The Stathas 02- 048 -C2 Page 13 Blacks also submitted an appraisal which reflected that there would be no lessening in the value of Stathas' property as a result of the grant of the special exception. After Stathas was elected but before he took office, he sent a letter to the township zoning officer requesting that a traffic study be conducted in the area of 1300 block of Lisburn Road. At a January 17, 2002, board meeting, the public safety chairman indicated that a highway occupancy permit was requested and approved by PennDOT for the Black's property, that the site distance was found to be adequate by the police department and that no accidents occurred in the last five years. The public safety chairman then made a motion to reject Stathas' request for a safety study. After Stathas voiced a challenge, the public safety chairman withdrew his initial motion and made another motion that the commissioners should take no further action. That motion passed by a vote of 3 -2 with Stathas and another commissioner, the brother -in -law of Stathas, voting no. On January 30, 2002, the ZHB denied a special exception to the Blacks who then engaged legal counsel to contact the township regarding their desire to operate their business as a permitted use. On March 28, 2002, the Blacks submitted a zoning permit application to the township which then issued the zoning permits about one week later. On April 5, 2002, the township zoning officer, Souders, avers that Stathas directed him to revoke the permits under the threat of disciplinary action /termination. Stathas denies that he gave that instruction to Souders. Township Manager, Lou Fazekas, asserts that Stathas told him that his job as township manager would be more difficult because the permits had been issued. Stathas denies making such a statement. Stathas then attempted to contact the three members of the ZHB regarding what action he could take in light of the current status of the Black zoning matter. Stathas was able to contact one board member with whom he discussed the Black property and the best way to file an appeal. Subsequently, Stathas returned to the township office and asked Fazekas if he could speak to Souders. After Fazekas denied Stathas' request, Fazekas asserts that Stathas threatened him with termination. Stathas denies making a threat to Fazekas. Stathas only admits he made an observation that if Fazekas and Souders were found to have willfully violated the law in their actions, such would be grounds for termination. On April 12, 2002, Stathas filed an appeal with the ZHB from the issuance of the permits to Blacks. Contemporaneously, the Blacks filed an appeal to the Court as to the denial of their special exception by the ZHB arguing that such action was arbitrary, capricious, an abuse of discretion, and against the weight of evidence. Souders delivered a work stop letter to the Blacks on April 16, 2002. At an April 18, 2002, meeting of the township board of commissioners, the Blacks and their permits were discussed in an executive session as to which Stathas recused himself. Several hearings were held before the ZHB regarding the permits issued by Souders to the Blacks. The ZHB voted to appoint an independent hearing officer in relation to the Stathas appeal. The Court, on August 20, 2002, issued an interim order finding that the ZHB was unclear as to the law and facts relied upon in its decision and remanded the matter back to the ZHB for a position statement as to its denial of the special exception. At a November 12, 2002, work session of the board of commissioners, Stathas sought support and assistance from the board regarding his appeal filed before the ZHB as to Black's permits. Stathas stated that he would address the board as a township resident concerning various ordinance violations, then challenged the determination of Souders and questioned how the board could support the actions occurring at the Black's property. A series of motions were made, all of which failed for lack of a second. Hence, no official board action occurred. Stathas 02- 048 -C2 Page 14 On November 26, 2002, the independent hearing officer made a recommendation that the ZHB affirm in part and reverse in part Souders' decision. The ZHB unanimously adopted some of the recommendations. Thereafter, the Court reversed the denial of the special exception and ordered that the special exception be granted. In a telephone conversation, Souders asserts that Stathas made demands upon him to go to the Black's property and enforce the township ordinances in the manner that Stathas directed. Stathas denies making such a statement to Souders. Turning to the allegation of the SFI's filed by Stathas, as an Upper Allen Township Commissioner, for the calendar years 2000 and 2001, he failed to complete all sections of the form. Although Stathas has been employed by Clearseal Systems (Clearseal) since at least September 1986, he failed to disclose Clearseal as a direct or indirect source of income and his employment with Clearseal on his SFI's for the 2000 calendar year. Stathas also failed to disclose Clearseal as a source of income on his 2001 calendar year SFI. However, Stathas did list Clearseal as a business with which he has a financial interest. Stathas checked "none" on his 2000 and 2001 calendar year SFI's regarding direct or indirect sources of income. He also checked "none" under the category of employment in any business for his 2000 calendar year SFI. Following notification by the Investigative Division of this Commission regarding the current investigation, Stathas filed amended SFI's for calendar year 2000 and 2001. 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 Consent Agreement proposes that this Commission find: "a. That no violation of Section 1103(a), 65 Pa.C.S. §1103(a) of the Public Official and Employee Ethics Law occurred relating to the allegation that Stathas used the authority of his office for a private pecuniary gain by directing the township zoning officer and township manager, with threats of termination of their employment, to revoke and /or deny permits issued to a party involved in a lawsuit and /or appeals with Stathas as there is insufficient corroboration to establish the requisite level of proof that there has been a violation of Section 1103(a) of the Ethics Law. b. That no violation of Section 1103(a), 65 Pa.C.S. §1103(a) of the Public Official and Employee Ethics Law occurred relating to the allegation that Stathas used the authority of his office for a private pecuniary gain when permits were issued that decreased the value of Stathas' property by approximately $45,000 as there is insufficient corroboration to establish the requisite level of proof that there has been a violation of Section 1103(a) of the Ethics Law. c. That a technical violation of Section 1104(a) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1104(a) occurred when Stathas failed to disclose on Statements of Financial Interests filed for the 2000 and 2001 calendar years income from Clearseal Systems; and when he failed to disclose his office, directorship or employment with Clearseals Systems on Statements of Financial Interests filed for the 2000 and 2001 calendar years." In addition, Stathas agrees to pay $500 through this Commission to the Commonwealth of Pennsylvania within thirty (30) days of the mailing of this order. Finally, Stathas has agreed to the following: "Stathas, who has resigned from office for a variety of reasons, agrees not to seek or accept any position of public office or public employment in the Commonwealth of Pennsylvania for a period of seven (7) years after the date of the issuance of the final adjudication in the current matter. The foregoing shall not prohibit Stathas from accepting a teaching position in any educational institution as long as such position is one that is not within the definition of public employee or public official as defined in the Ethics Law." Stathas 02- 048 -C2 Page 15 In applying Section 1103(a) of the Ethics Act, it is necessary that each of the requisite elements exist in order to sustain a violation. Without a necessary element of the statutory definition of conflict, there can be no violation of the Ethics Act. In particular, if there is no use of authority of office, there can be no violation of Section 1103(a). See, McGuire and Marchitello v. SEC, 657 A.2d 1346 (Pa. Commw. 1995). As to the issue of the use of authority of office by Stathas, the stipulated facts reflect three instances where Stathas may have used the authority of office as a township supervisor. The first concerns his action in terms of addressing the board of commissioners in November of 2002. However, before Stathas addressed the board he excused himself and stated that he was making a presentation as a township resident. Given that procedural posture, we do not believe from the facts of record that Stathas' presentation constituted a use of authority of his office. The other two instances involve communications between Stathas, Township Zoning Officer, Souders, and Township Manager, Fazekas. In both of those instances, we have a situation where Souders and /or Fazekas state that Stathas made threats or ordered certain actions relative to the proceedings by the Blacks. However, Stathas denies giving any such directions or making such threats. As to the record before us, there is no way to discern what actually transpired. In short, we have the word of Stathas versus that of Fazekas and Souders. Accordingly, we find no violation of Section 1103(a) of the Ethics Act as to whether Stathas directed the township zoning officer or manager to take certain action or threatened termination vis -a -vis permits issued and lawsuit /appeals as to the proceedings of the Black's on the basis that there is insufficient evidence to establish a violation by clear and convincing proof. On this same basis, we find also that Stathas did not violate Section 1103(a) of the Ethics Act as to whether he took action as to permits to the Blacks to eliminate the reduction in value of his property as there is insufficient evidence, based upon the lack of clear and convincing proof. Turning to the SFI allegation, the stipulated findings reflect that Stathas failed to disclose his employer, Clearseal, as a direct or indirect source of income on his SFI filed for 2000 and 2001 calendar years. However, Stathas did list Clearseal as a business in which he has a financial interest. The findings also reflect that Stathas failed to list his employment with Clearseal on his SFI for the 2000 calendar year. Lastly, the stipulated findings reflect Stathas, upon receiving notice of the investigation, filed amended SFI's for calendar years 2000 and 2001. Accordingly, Stathas technically violated Section 1104(a) of the Ethics Act when he failed to disclose income from Clearseal on his SFI's for 2000 and 2001. In addition, Stathas technically violated Section 1104(a) of the Ethics Act when he failed to disclose his employment with Clearseal on his 2000 calendar year SFI. However, we find that Stathas did not violate Section 1104(a) of the Ethics Act regarding his employment with Clearseal on his 2001 calendar year SFI on the basis that the stipulated findings do not reflect whether Stathas did or did not list his employment with Clearseal. 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. As part of the settlement of this case, Stathas has agreed to make payment of $500.00 to the Commonwealth of Pennsylvania through this Commission within 30 days of the mailing of this adjudication. In addition, Stathas has also agreed not to hold public office or public employment in the Commonwealth for seven years from the date of mailing of this order. Stathas 02- 048 -C2 Page 16 Compliance with the above by Stathas 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. Stathas, as a Commissioner for Upper Allen Township, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Stathas did not violate of Section 1103(a) of the Ethics Act on the allegation that he directed the township zoning officer or manager to take certain action or threatened them with termination vis -a -vis the permits issued as to the Blacks, on the basis that there is insufficient evidence to establish a violation by clear and convincing proof. 3. Stathas did not violate Section 1103(a) of the Ethics Act as to whether he took action as to permits to the Blacks to eliminate the reduction in value of his property in that there is insufficient evidence, based upon the lack of clear and convincing proof. 4. Stathas technically violated Section 1104(a) of the Ethics Act when he failed to disclose income from Clearseal Systems on his SFI's for 2000 and 2001. 5. Stathas technically violated Section 1104(a) of the Ethics Act when he failed to disclose his employment with Clearseal Systems on his 2000 calendar year SFI. 6. Stathas did not violate Section 1104(a) of the Ethics Act regarding his employment with Clearseal Systems on his 2001 calendar year SFI on the basis that the stipulated findings do not reflect whether Stathas did or did not list his employment with Clearseal. In Re: Edward Stathas ORDER NO. 1321 File Docket: 02- 048 -C2 Date Decided: 6/8/04 Date Mailed: 6/16/04 1. Stathas, as a Commissioner for Upper Allen Township, did not violate of Section 1103(a) of the Ethics Act on the allegation that he directed the township zoning officer or manager to take certain action or threatened them with termination vis -a -vis the permits issued as to the Blacks, on the basis that there is insufficient evidence to establish a violation by clear and convincing proof. 2. Stathas did not violate Section 1103(a) of the Ethics Act as to whether he took action as to permits to the Blacks to eliminate the reduction in value of his property in that there is insufficient evidence, based upon the lack of clear and convincing proof. 3. Stathas technically violated Section 1104(a) of the Ethics Act when he failed to disclose income from Clearseal Systems on his SFI's for 2000 and 2001. 4. Stathas technically violated Section 1104(a) of the Ethics Act when he failed to disclose his employment with Clearseal Systems on his 2000 calendar year SFI. 5. Stathas did not violate Section 1104(a) of the Ethics Act regarding his employment with Clearseal Systems on his 2001 calendar year SFI on the basis that the stipulated findings do not reflect whether Stathas did or did not list his employment with Clearseal. 6. Per the Consent Agreement of the parties, Stathas agrees to make payment of $500.00 to the Commonwealth of Pennsylvania through this Commission within 30 days of the mailing of this adjudication. In addition, Stathas has also agreed not to hold public office or public employment in the Commonwealth for seven years from the date of mailing of this order. a. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, John J. Bolger, Vice Chair Chair Louis W. Fryman did not participate in the consideration of this matter.