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HomeMy WebLinkAbout1337 NesterIn Re: Joseph Nester File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen 03 -052 Order No. 1337 9/20/04 10/1/04 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 investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was not filed and a hearing was deemed waived. The record is complete. A Consent Agreement and Stipulation of Findings were submitted by the parties to the Commission for consideration. The Stipulation of Findings is quoted as the Findings in this Order. The Consent Agreement was subsequently approved. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under Act 93 of 1998. This adjudication of the State Ethics Commission is issued under Act 93 of 1998 and will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with Chapter 11 of Act 93 of 1998. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year. Confidentiality does not preclude discussing this case with an attorney at law. Nester, 03 -052 Page 2 I. ALLEGATION: That you, Joseph Nester, a (public official /public employee) in your capacity as a Supervisor of Findlay Township, Allegheny County, violated Section 1103(a), 1103(c) and 1104(a) of the Public Official and Employee Ethics Law (65 Pa.C.S. §1101 et seq.) when you used the authority of your office for a private pecuniary gain, including but not limited to participating in actions of the board of supervisors to approve a cellular telephone tower for Crown Communications, at a time when you were soliciting donations in the amount of approximately $3,000 from Crown Communications; and when you failed to file Statements of Financial Interests for calendar years 1998 and 2001 by May 1, 1999, and May 1, 2002, respectively. II. FINDINGS: 1. Joseph O. Nester served as a Supervisor for Findlay Township, Allegheny County from January 1984 through December 2001. a. Nester served as the chairman of the board of supervisors during his entire service on the board with the exception of calendar years 1998 and 1999. b. Nester was also appointed by the board to serve as roadmaster on an as- needed basis in each of the years that he served on the board. 1. All of the supervisors are appointed as roadmasters for the Township. 2. Findlay Township is a second -class township governed by a three - member board of supervisors. a. The board typically holds one regularly scheduled public voting meeting and one public workshop meeting per month. 3. Nester is compensated as follows by the Township: a. Nester received $62.50 per meeting for serving on the Board of Supervisors. b. Nester received $2,000.00 per year for serving as a roadmaster. 1. This compensation was set by the township board of auditors. 4. In November 1996, Crown Communications (now known as Crown Castle International) applied for a Conditional Use Permit from the Township for the purpose of constructing a cellular communications tower. a. Crown proposed building the tower on property that it leased from Allegheny County located in the Township, near the Pittsburgh International Airport. 5. After review of the application, the Board of Supervisors denied the permit in February 1997 because the application did not conform to the Township's zoning ordinance. a. The board of supervisors unanimously denied the permit application. b. The Board of Supervisors recommended that Crown consult with the Township Planning Commission and resubmit an application to the Township Zoning Hearing Board. Nester, 03 -052 Page 3 c. Nester participated in the vote denying Crown's application and the board recommendation. 6. On February 26, 1999, Crown submitted a second Application for Conditional Use to the Township. a. The application was for the same purpose of the 1996 application. b. There were some minor changes on the application including the height of the tower and area of the property. 7 The second application was first reviewed by the township at a Planning Commission meeting on March 23, 1999. 8. The Planning Commission recommended the approval of the Conditional Use Permit and referred the matter to the Board of Supervisors. a. The Planning Commissions conditions included approval of the site capacity worksheet, review of questions regarding the tower, and review of Crown's lease. 9. On May 12, 1999, as required by ordinance, the Township conducted a public hearing regarding Crown's application. a. Crown representatives and Township officials gave testimony at the hearing. b. The Township did not take any official action or make any recommendations regarding the application during this hearing. c. The hearing was continued until June 9, 1999. d. Nester was not present at this hearing. 10. On June 9, 1999, the Township reconvened the public hearing regarding Crown's permit. a. The Township did not take any official action or make any recommendations regarding the application during this hearing. b. The hearing was continued until July 14, 1999, by way of a unanimous 3 -0 vote. c. Nester was present at this meeting and participated in discussions and the vote to continue the hearing. 11. On July 14, 1999, the public hearing regarding Crown's permit was reconvened. a. After the conclusion of the public hearing, the Board of Supervisors voted unanimously to table any action regarding Crown's permit application until August 11, 1999. b. Nester was present at this meeting and participated in discussions and the vote to table any action regarding Crown's permit application. 12. During an August 23, 1999 public workshop meeting, the Board of Supervisors unanimously voted to approve Crown's conditional use permit for the construction of the cellular communications tower with certain conditions. Nester, 03 -052 Page 4 a. Nester was present at this meeting and participated in this vote. 13. The Township officially notified Crown of the permit approval by letter dated September 13, 1999, which outlined the conditions for approval. a. The letter was as follows: At the August 23, 1999 Workshop Meeting, the Findlay Township Board of Supervisors approved the conditional use application of Crown Communications to construct a 151' high self- supporting tower and a 1,718 s.f. accessory building an a 2.17 acre parcel of airport property off of Cummings Road with the following conditions: 1. Waiver of the lot area requirement from 10 acres to 2.17 acres; 2. Waiver of the lot width requirement from 500 feet to 310 feet; 3. Waiver of Bufferyard "D" requirement; 4. Provisions to be made for the location of the northwest communication center on the tower for three antennas, two microwave dishes and sufficient space in a transmitter building; 5. Lighting recommendation that eliminates the use of strobe lights pending FAA approval." b. The waivers provided by the Township to Crown were not unique to this application and similar waivers have been granted to other entities. 14. After it's conditional use application was approved, Crown applied for a building permit from the Township. a. The building permit was issued on September 1, 1999. b. The Board of Supervisors is not responsible for approving building permits or building inspections. 15. After September 1, 1999, the Township's role with respect to the tower was to conduct building inspections. a. These inspections were conducted by township staff and did not require action by the board of supervisors. a. The Township closed -out Crown's building permit on June 19, 2001, after a final inspection of the construction. 16. From February 1999 through August 1999, while the Township was considering Crown's conditional use application, concerns were raised by township officials which included zoning issues and the impact the tower would have on the community. a. These concerns included the impact on nearby neighborhoods and the visual appearance of the tower. 17. Crown developed a program known as "partner in the community" to deal with concerns raised by public and governmental bodies when issues were raised over Nester, 03 -052 Page 5 the placement of communications towers. a. This program was in effect in 1999. 18. James Travato, Sr. served as Crown's National Director of Government and Public Affairs from approximately the spring of 1997 until November 2000. a. Travato's duties in his position focused on relations with local officials during the application period to ensure the approval of Crown's applications. b. Travato was responsible for providing answers to questions raised by the local officials by appropriate Crown employees and experts and that the officials understood that Crown wanted to be a "partner in the community." 19. Part of Crown's "partner in the community program" include providing municipalities with donations. a. These donations include providing prime space on the tower for the municipality's communication systems and a grant or donation to the municipality for a public use project such as a park or other recreation area. b. Travato oversaw this program. 20. Crown made two donation offers to Findlay Township in association with the cellular communications tower during the time period from February 1999 through August 1999 when the board of supervisors was considering approving the cellular tower. a. Crown offered to provide space on the tower and in the accessory building for the Township to locate its communications systems and equipment. 1. This is outlined in condition 4 of the conditional use approval. 2. To date, the Township has not utilized space on the tower. 3. The specific date that this was offered to the Township could not be determined. b. Crown offered to make a monetary donation to the township regarding a township park. 1. This donation was offered to the township subsequent to the July 14, 1999, public meeting. 2. The township did not immediately respond to this offer. c. Travato was the primary Crown representative who offered and provided these perks to the Township. 21. Crown provided $40,000.00 to the Township, by check dated April 11, 2000, for the township to purchase playground equipment for a park. a. This check was presented to the Township by Travato at the April 12, 2000 Board of Supervisors public meeting. b. The check was issued to the Township subsequent to the September 13, 1999, approval of Crown's conditional use application and building permit. Nester, 03 -052 Page 6 22. Travato participated in various meetings with township officials and personnel from February 2000 through April 2000 regarding the donations made by Crown. a. Most of the meetings were informal informational meetings. b. Crown did not have any matters pending before the board of supervisors in 2000. c. Travato did attend the April 12, 2000, board of supervisors meeting to present the $40,000 check for playground equipment. 23. Prior to the August 23, 1999, vote of the board to approve the tower, Travato also had private meetings with various township officials, including Nester, for the purpose of explaining the benefits to the township of the proposed tower and the community share program. 24. Prior to August 23, 1999, Travato had a private meeting with Supervisor Danice Brinkley that focused on the tower and the community share program. a. Travato solicited Brinkley's support for approving the tower and also informed her of the benefits of Crown's community share program. 25. Travato focused his meetings on Nester due to Nester serving as chairman of the board of supervisors. 26. Travato had two private lunch meetings with Nester prior to the board vote to approve the tower. a. The lunches were paid for by Travato. b. There is no record of Nester advising the other members of the board of supervisors of his meetings with Travato. 27. During at least one meeting during the fall of 1999 with Travato, Nester solicited a donation for the booster club with which he was associated. a. Nester was involved with the West Allegheny Football Boosters Club from the early to mid 1990's when his son was on the West Allegheny School district Football team until approximately 2002. b. Nester never held any offices in the organization but was active with its events. c. Nester stayed active with the boosters club after his son graduated high school until approximately 2002 when he moved out -of- state. d. The boosters club held various outings, including an annual golf outing. 1. Nester participated in preparations for the golf outing. 28. During a meeting for the 1999 golf outing, the idea of a school mascot was discussed among the boosters club. a. The idea was to obtain an Authentic Native American outfit for someone to wear while riding a horse at the home football games. b. The West Allegheny School Mascot is an Indian. Nester, 03 -052 Page 7 c. Nester expressed an interest in this idea as he had two horses at the time. d. The boosters club was interested in the mascot but needed to secure funding for the cost of the Indian outfit. 29. In or around the fall of 1999, Nester met Travato and inquired whether Crown would be willing to provide a donation for the purchase of an authentic Native American outfit. a. Nester and Travato had no previous personal or private dealings. 30. Travato received approval from Crown to provide the donation for the cost of the Indian outfit. a. Travato required that Nester provide a receipt for the outfit and that a check would be issued directly to the outfit maker. b. Travato /Crown agreed to provide the funding for the outfit within approximately one month of the township approval for the tower. 31. Nester ordered the outfit from the Sunrise Trading Post located in Dumont, N.J., in or around November 1999. a. Nester ordered the following items from Sunrise Trading Post: headdress; jacket; leggings; moccasin boots; breastplate shield; a staff with feathers; and war paint. 1. Nester did not have a receipt verifying the items ordered. b. The outfit was custom made to measurements provided by Nester. c. Nester learned of the Sunrise Trading Post via the Internet. 32. On November 19, 1999, Crown issued a check number 005008687, in the amount of $2,987.50, to the Sunrise Trading Post. a. Sunrise Trading Post verified the deposit of the payment for the order. 33. Nester received the outfit from Sunrise Trading Post in or around November/ December 1999. a. The outfit was shipped to his home in Findlay Township. b. After receiving the outfit, Nester kept it in a box at his home and did not present it to the boosters club. 1. Nester decided to keep the outfit at his home until the beginning of the next football season in fall of 2000. c. The outfit was not used for any school related functions due to various liability issues. d. The only part of the costume remaining in Nester's possession is the breast plate. 34. Nester used the authority of his position as Findlay Township Supervisor to solicit Year Supervisor Roadmaster Total 1998 $1,375.00 $2,000.00 $3,375.00 2001 $1,500.00 $2,000.04 $3,500.04 Nester, 03 -052 Page 8 funding from Crown in order to purchase the outfit. a. Nester only became affiliated with Crown as a result of holding his public office. b. Travato had meetings with Nester only because of Nester's position as chairman of the board of supervisors. c. Nester made the solicitation of Travato during a meeting following the vote to approve Crown's tower application. (The following findings relate to the allegation that Nester failed to file Statements of Financial Interests) 35. During his service as a township supervisor, Nester filed Statements of Financial Interests with Findlay Township. 36. SFIs on file for Nester at the township verified that he filed SFIs for the 1999 and 2000 calendar years as follows: Calendar Year Date Filed 1999 04/28/00 on SEC Form 1/00 2000 02/14/01 on SEC Form 1/01 37. Nester failed to file SFIs for calendar years 1998 and 2001 by May 1, 1999, and May 1, 2002, respectively. 38. W -2 Wage and Tax Statements on file at the township confirm that Nester received the following compensation from Findlay Township in 1998 and 2001, years in which he failed to file SFIs: III. DISCUSSION: At all times relevant to this matter, the Respondent, Joseph Nester, hereinafter Nester, has been a public official subject to the provisions of the Public Official and Employee Ethics Law, Act 9 of 1989, Pamphlet Law 26, 65 P.S. § 401, et seq., as codified by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq., which Acts are referred to herein as the "Ethics Act." The allegations are that Nester, as a Supervisor of Findlay Township, violated Sections 1103(a), 1103(c) and 1104(a) of the Ethics Act when he participated in actions of the board of supervisors to approve a cellular telephone tower for Crown Communications (Crown), when he was soliciting donations from Crown; and when he failed to file Statements of Financial Interests (SFI's) for calendar years 1998 and 2001 by May 1, 1999, and May 1, 2002, respectively. Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under Act 93 of 1998 as follows: Section 1102. Definitions Nester, 03 -052 Page 9 "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Section 1103. Restricted Activities (c) No public official, public employee or nominee or candidate for public office shall solicit or accept, anything of monetary value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding of that public official, public employee or nominee that the vote, official action, or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. 65 Pa.C.S. § 1103(c). Section 1103(c) of the Ethics Act quoted above provides in part that a public official /public employee shall not solicit or accept anything of monetary value based upon any understanding that his vote, official action or judgment would be influenced thereby. Section 1104(a) of the Ethics Act requires that each public official /public employee must file a Statement of Financial Interests for the preceding calendar year, each year that he holds the position and the year after he leaves it. 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. Nester served on the three - member board of supervisors in Findley Township, Allegheny County, and worked as a roadmaster on an as- needed basis from January 1984 through December 2001. In November of 1996 Crown applied for a permit to construct a cell tower in the township. The board of supervisors unanimously denied the application for a permit as not in conformity with the township zoning ordinance. The board recommended that Crown consult with the planning commission and resubmit the application. After Crown submitted Nester, 03 -052 Page 10 a second application with some minor changes, the planning commission reviewed the application and recommended approval to the board of supervisors. After the township held three public meetings on Crown's application for a permit to construct a cell tower, the board tabled the permit application. However, at an August 1999 public workshop meeting, the board unanimously voted to approve Crown's permit for the cell tower construction. Nester participated in that vote. A letter of approval from the township was issued to Crown on September 13, 1999, with certain restrictions as detailed in Fact Finding 13. After Crown received its building permit, construction ensued and the township performed the requisite constructions and then closed the permit after a final inspection. Because concerns are typically raised about the construction of cell towers, Crown developed a program known as "partner in the community" to deal with such concerns. That program was in effect during the pendency of the cell tower approval process and construction. James Travato, Sr. served as Crown's National Director of Government and Public Affairs with duties of focusing on relations with local officials during application timeframes to ensure the approval of Crown's applications. Travato oversaw the "partner in the community program which included providing municipalities with donations. For Findley Township, Crown made two donations vis -a -vis the approval for the construction of a cell tower. The first donation by Crown provided free space on the tower and in its accessory building for the township to locate communications systems and equipment. The second donation by Crown consisted of $40,000 paid to the township to purchase playground equipment for its park. Prior to the approval of its cell tower application, Nester had meetings with Travato who explained the purpose and benefits to the township of the tower and community share program. Travato met with Nester as chairman of the board of supervisors. In one meeting with Travato, Nester solicited a donation for a booster club with which he was associated. Nester never held an office in the organization but participated in its events. Booster Club members at one point discussed the idea of a school mascot with the idea of obtaining an authentic Native American outfit for someone to wear while riding a horse at home football games. Nester met with Travato and inquired whether Crown would provide a donation for the purchase of an authentic Native American outfit. After Travato received approval from Crown, he indicated to Nester that a receipt was necessary for the outfit and a check would then be issued directly to the vendor. Nester ordered an outfit which cost $2,987.50 and Crown issued a check in reimbursement. Nester received the outfit and had it shipped to his home where it remained without use in school related functions due to liability issues. Eventually, Nester only retained the breastplate from the outfit. As a township supervisor, Nester was required to file SFI's with the township. The record reflects that Nester failed to file SFI's for the calendar years 1998 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. By agreement of the parties, all charges related to Section 1103(a) are dismissed. b. By agreement of the parties, all charges related to Section 1103(c) are dismissed. c. That a violation of Section 1104(a) of the Public Official and Employee Ethics Law occurred when Nester failed to file Statements of Financial Interests for the 1999 [sic] and 2001 calendar years." Nester, 03 -052 Page 11 In addition, Nester agrees to pay $2,875.00 to the Commonwealth of Pennsylvania through this Commission within 30 days of the mailing of this order. As to the three allegations, the parties have agreed to a dismissal as to the allegations concerning Section 1103(a) and 1103(c) of the Ethics Act. Since the Investigative Division in the exercise of prosecutorial discretion and as part of an overall comprehensive settlement of the case has the option to take such action, we need not and will not discuss the dismissed charges. The only allegation before us at this time concerns whether Nester violated Section 1104(a) of the Ethics Act when he failed to file SFI's for the calendar years 1998 and 2001. Since the parties have stipulated that Nester failed to file SFI's for the calendar years 1998 and 2001, we conclude that Nester violated Section 1104(a) of the Ethics Act when he failed to file SFI's for the calendar years 1998 and 2001. If Nester has not already done so, he is directed to file SFI's for the calendar years 1998 and 2001 within 30 days of the date of mailing of this order with the originals filed at the township and copies filed with this Commission for compliance verification purposes. As per the Consent Agreement, Nester is also directed to make payment in the amount of $2,875.00 through this Commission to the Commonwealth of Pennsylvania within 30 days of the mailing date of this order. Compliance with the foregoing will result in the closing of this case with no further action. Non - compliance will result in the institution of an order enforcement action. 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, Nester is directed to file SFI's for the calendar years 1998 and 2001 within 30 days of the date of mailing of this order with the originals filed at the township and copies filed with this Commission for compliance verification purposes. Further, Nester is directed to make payment in the amount of $2,875.00 through this Commission to the Commonwealth of Pennsylvania within 30 days of the mailing date of this order. Compliance with the foregoing will result in the closing of this case with no further action. Non - compliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Nester, as a Supervisor in Findley Township, Allegheny County, for the relevant time period was a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Nester violated Section 1104(a) of the Ethics Act when he failed to file SFI's for the calendar years 1998 and 2001. In Re: Joseph Nester ORDER NO. 1337 File Docket: 03 -052 Date Decided: 9/20/04 Date Mailed: 10/1/04 1 Nester, as a Supervisor in Findley Township, Allegheny County, violated Section 1104(a) of the Ethics Act when he failed to file SFI's for the calendar years 1998 and 2001. 2. Per Consent Agreement of the parties, Nester is directed to make payment in the amount of $2,875.00 through the Commission to the Commonwealth of Pennsylvania within 30 days of the mailing date of this order. 3. Nester is directed to file SFI's for the calendar years 1998 and 2001 within 30 days of the date of mailing of this order with the originals filed at the township and copies filed with this Commission for compliance verification purposes. 4, Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair