April 18, 2005

Introduction:

The State of Maryland requires each municipality to empanel a Commission designed to ensure transparency and appropriate behavior in government. The essential duty of the Emmitsburg Ethics Commission is to process and make determinations as to grievances brought by citizens who believe actions taken by their elected representatives, or their employees, constitute behavior contrary to accepted practices of good government. Since a redress of grievances is one of our most cherished rights as citizens, it is the duty of the Ethics Commission to ensure a free and fair process. Throughout all of its deliberations, the Emmitsburg Ethics Commission has acted in good faith.

Ethics Commissioners:

Ted Brennan, Chair
Scott McClendon, Vice Chair
Stephen Kleindienst, Secretary
Harry deMoll, Special Council to the Ethics Commission (12-04 to present)
John Clapp, Counsel for the Town of Emmitsburg.

Complainants:

David Runkle
Owner
Custom Image Printing (CUSTOM IMAGE) Printing
106 East Main Street
Emmitsburg, Maryland 21727

Kirby Delauter
Owner
Delauter and Sons, Inc. (Silo Hill Car Wash)
Thurmont, MD

Respondents:
Commissioner William B. O'Neil, Jr., President of the Emmitsburg Town Council
Commissioner Arthur Elder

The Ethics Commission interviewed the following Witnesses:

Carl Athey, Co-Owner of the Silo Hill Carwash
Michael Lucas, Director of Planning, Town of Emmitsburg
Jennifer Joy, Planning Technician, Town of Emmitsburg
Deputy James Moxley, Frederick County Sheriff's Department
David Haller, Town Manager, Town of Emmitsburg
Mayor Jim Hoover, Town of Emmitsburg
Eva Miller, Former Code Enforcer, Town of Emmitsburg

In letters dated December 23, 2004, February 7, 2005, and February 24, 2005, Commissioners O'Neil and Elder were asked to meet with the Ethics Commission and personally address the complaints against them and offer their own insights into the events that led to them. The Commission also asked the Town Manager, on several occasions, to coordinate the Commissioners meeting with the Ethics Commission. Both Town Commissioners O'Neil and Elder refused to appear before the Ethics Commission.

In every way possible, the Ethics Commission was very patient and sensitive to the needs of the Town Commissioners and their obligations to their official duties. Both were given ample time and appropriate flexibility to comply with the requests. Contrary to their public statements, Commissioners O'Neil and Elder refused on every occasion to schedule a meeting with the Ethics Commission. Therefore, the Commission was left no choice but to present its findings without the benefit of interviewing the respondents themselves.

Procedures:

Since the Emmitsburg Town Code provides no specific procedures for conducting an Ethics investigation, the Ethics Commission consulted with the Town Attorney, John Clapp and Attorney Harry deMoll, to discuss how the Commission should proceed. Upon the advice of Counsel, the Commission conducted its investigation. On October 6, 2004 the Commission received the complaint from David Runkle. On November 24, 2004, Kirby Delauter submitted his complaint. After initially reviewing the complaints, the Ethics Commission made a preliminary determination that probable violations of the Town Code had occurred and scheduled further review with appropriate witnesses. On December 23, 2004, the Ethics Commission issued letters to Commissioners Elder and O'Neil, informing them that an investigation was warranted and now underway (See Exhibit 1). Copies of the complaints were included as attachments to the December 23 letter, but were redacted to prevent disclosure of the complainants. The two respondents never formally replied to the letters. Witnesses were placed under oath.

Complaints:

Both complaints (see exhibits 2 and 3) indicate that actions taken by Commissioners O'Neil and Elder exceeded their authority as Commissioners. While no citation in the code was made in the complaints, the Commission cited Section 2.32.030 paragraphs A and J as the applicable citations. (See exhibit 4)

I. Finding of Facts: Chronicle Press Printing and Custom Image Printing:

1. On October 6, 2004, Mr. David Runkle presented to the Emmitsburg Ethics Commission a written complaint. After interviewing the complainant on November 22, 2004, it was clear that both Chronicle Press and Custom Image Printing were engaged in a number of business disputes that took place over a long period of time. However, the Commission also determined that both Commissioners O'Neil and Elder took specific actions against Custom Image Printing and in favor of Chronicle Press Printing. Since the nature of the legitimate business disputes are beyond the jurisdiction of the Ethics Commission, it will not weigh the validity of the pending legal disputes between the two businesses, but rather, will simply address those issues that pertain to matters within the Commission's jurisdiction.
    
2. The direct involvement of Arthur Elder and William B. O'Neil, Jr. in the dispute between Chronicle Press Printing and Custom Image Printing is highlighted in supporting documents contained herein. The Commission has determined that Commissioners Elder and O'Neil used their positions on the Town Council to provide Chronicle Press special treatment. The case began on May 4, 2004, when Commissioner Elder approached Town Planner, Mike Lucas, informing him that his cousin, Lisa Elder, intended to purchase and operate Chronicle Press Printing located at 107 South Seton Avenue, Emmitsburg. David Runkle had recently vacated that property, where he once ran his own printing business. Art Elder is the former owner of the building and once operated Chronicle Press. After a brief conversation about regulations concerning the building and the notice for a change of ownership, Mr. Lucas informed Commissioner Elder that Lisa Elder would be required to obtain permits from both Emmitsburg and Frederick County. Mr. Lucas indicated that a building inspection would be required to obtain the county permit. According to Mr. Lucas, Commissioner Elder responded "Is there no way you can get around Frederick County?" Fearing that the building had problems, Mr. Lucas advised against such action. This incident was shared with Town Manager David Haller and Mayor Jim Hoover. (See Exhibit 5)
    
3. On July 14, 2004, Chronicle Press was issued the appropriate permits and began operating. On July 21, 2004, David Runkle applied for a Frederick County Home Occupation permit in order to reopen his printing business in the new location, 106 East Main Street. In August of 2004, as indicated in the enclosed copies, a series of emails were exchanged between Commissioner O'Neil and Town Planner Mike Lucas, in which Commissioner O'Neil provided instructions for Mr. Lucas to follow in investigating David Runkle and his business. (See Exhibit 6) After taking what Lucas described as appropriate action, he was satisfied that he had done all his legal authority permitted to enforce the town code in regards to Custom Image Printing. In the aforementioned series of email exchanges, Commissioner O'Neil seemed unsatisfied that Mr. Lucas' actions were adequate and pressed him to conduct additional actions. Included in Mr. O'Neil's instructions were for Mr. Lucas to conduct "unannounced inspections," of Mr. Runkle's premises. He then had him ask the Frederick County Sheriff's Department to trace the telephone. In an email dated August 25, 2004 (See Exhibit 7), Commissioner O'Neil suggested to Mr. Lucas "the town, as part of its inspection and investigation process, dial *67 (which prevents the identification of incoming calls on a caller ID system) and place a small order to Custom Image Printing." Commissioner O'Neil, via an August 26 email (See Exhibit 8) wrote, "If the town is unable to place an order, would you want me to ask an acquaintance to do so?" At this time, Custom Image Printing did not have the proper permits, but Mr. Lucas believed that Custom Image Printing was not conducting business on the premises. However Commissioner O'Neil still was not satisfied. A home occupancy permit was issued on September 13, 2004. Both Commissioners O'Neil and Elder reportedly continued to track the progress of actions being taken against Custom Image Printing. On or about August 30, Commissioners O'Neil and Elder were present in Mr. Lucas's office when they inquired about actions against Custom Image Printing. Mr. Lucas reports Commissioner O'Neil asking, "What are you doing to shut that slimeball Runkle down?" and was later heard to say, in the presence of Mike Lucas and Jennifer Joy and one other, "Runkle is sleeze, I want him shut down, I am going to have him investigated by the IRS, and I am the man to do it!"
    
4. Although Commissioners Elder and O'Neil took strict code enforcement actions against Custom Image Printing, they took no action against Chronicle Press Printing, when it operated without the required permits. On May 20th, 2004, a meeting of the Citizens Organized to Preserve Emmitsburg or COPE (Commissioners Elder and O'Neil attended the meeting) was convened. According to the minutes of the meeting (See Exhibit 9), attendees discussed the preparation of "door hanger fliers" for the Irish Town Road Annexation issue. Chronicle Press Printing was named as the business that would prepare them. Chronicle Press Printing did not receive the appropriate permits to operate until July 19, 2004. Although operating a business without a permit is against the law, Commissioners Elder and O'Neil allowed COPE to place orders with a business not yet permitted to conduct business in the town of Emmitsburg.

In the Case of Complainant David Runkle, Custom Image Printing, the Commission finds that Commissioner William B. O'Neil, Jr. has violated Section 2.32.030 Paragraph J of the Emmitsburg Code. The Commission believes that Commissioner O'Neil "Used the Prestige of his office for his own benefit or that of another." In this case, Commissioner O'Neil used the prestige of his office to provide unfair competitive advantage to Chronicle Press Incorporated, a business in town once owned by Commissioner Elder, and currently held by Commissioner Elder's cousin, Lisa Elder. It is also clear that Custom Image Printing was specifically targeted and subsequently harmed by the actions taken against it by Commissioner O'Neil.

II: Findings: Silo Hill Car Wash (Kirby Delauter)

1. Commissioner Arthur Elder is the owner of the Emmitsburg Car Wash, a direct competitor of the Silo Hill Car Wash.
    
2. On August 30, 2004 COPE Secretary Sabrina Paxton Daily, in the enclosed letter (See Exhibit 10), asked Mayor Hoover to "Limit the Car Wash's hours, require a full-time attendant and remove the signs on Route 15." Although Town Planner Mike Lucas indicated that the Town does not have the authority to take such action, Commissioners O'Neil and Elder continued to press the Car Wash issue. During the Town Council meeting of December 7, 2004, the noise issue was again debated by the Town Council. Despite appropriate action taken by the Car Wash Owners, the noise issue was again raised by a resident of Silo Hill, who was not present at the meeting. Various people stood in to address the issue during public comments. Following the discussion, Commissioner O'Neil opened a discussion of a proposed ordnance, which would require Silo Hill Car Wash to maintain a full-time attendant, operate within certain hours and remove their sign from the Highway Service Sign on Route 15, just as COPE suggested on August 30, 2004. The proposed ordnance specifically targeted the Silo Hill Car Wash, and would not apply to the other car wash in town, the one owned by Commissioner Elder. If passed, the ordnance would have placed an unfair hardship on Silo Hill Car Wash. It was pointed out that such ordnance was not legal unless such ordnance would apply to all car washes in town. At that suggestion, Commissioner O'Neil dropped the proposal.
    
3. On December 28, 2004, one witness indicated that he and another person heard Commissioner Elder make a threat against Silo Hill Car Wash Owner Kirby Delauter. Commissioner Elder is reported to have said: " Delauter should not have made a complaint to the Ethics Commission, especially since he is moving his business into town, because the (town) commission can make things rough on him."

In the Case of the Silo Hill Car Wash, The Emmitsburg Ethics Commission finds Commissioner Arthur Elder in Violation of Section 2.32.030, Paragraph A and J. Mr. Elder participated on behalf of the Town in matters, which would have a financial impact on him, namely seeking to harm a business in town (Silo Hill Car Wash), which directly competes with a business he owns (Emmitsburg Car Wash). He has also used the prestige of his office to his own benefit when dealing with the car wash. The Ethics Commission finds Commissioner William B. O'Neil, Jr. in violation of Section 2.32.030 paragraph J, Emmitsburg Code. Commissioner O'Neil used the prestige of his office to benefit the business owned by Commissioner Arthur Elder.

Additional Findings:

1. In July of 2004, the Town received a complaint that someone in town, had set up scaffolding around that person's house. The scaffolding was located in the public right of way. The person in question was cleaning his/her house, which produced an unknown red liquid substance, which poured into the storm drain. With this complaint, Mayor Hoover sent a town employee to investigate. It was determined that the scaffolding was in the right of way and potentially dangerous to people passing through the area. It was also indicated that a permit may be needed for such work and that this individual would have to go to the Town Office to get one. The person reportedly responded, "I will be through when I am through." When Mike Lucas told the person in question, that a $20 permit was needed to put up scaffolding, the person made a call to an unknown person. A few minutes later, Commissioners O'Neil and Elder arrived. Following a brief discussion, Commissioner O'Neil ordered Jenny Joy and Mike Lucas into the conference room, along with the subject of the complaint and Commissioner Elder. There, it was reported, that Commissioner O'Neil began to scold Mr. Lucas and Ms. Joy for "treating (name deleted) with disrespect." When Mr. Lucas replied that the Mayor had asked for this action to be taken, Commissioner O'Neil reportedly said, "The Mayor has no authority to tell you what to do, you are looking at the power!" (Pointing to himself and Mr. Elder). They then informed Mr. Lucas and Ms. Joy that there is no violation here, and the matter was dropped. Both Ms. Joy and Mr. Lucas reported the incident to the Mayor, and continue to feel threatened to this day.

CONCLUSION:

The Ethics Commission has been very troubled by the fact that two elected officials, Commissioners Elder and O'Neil, have failed to meet with the Ethics Commission to discuss the complaints leveled against them. By refusing to meet, the two Commissioners are disregarding the very code they were sworn to support. Every witness interviewed indicated that the events briefly discussed above are true and verifiable. The Commission has reported on those incidents that were corroborated by witnesses in separate interviews. Each witness, in their opinion, has indicated that the actions taken by Commissioners Elder and O'Neil have, in each case, exceeded their authority as commissioners. Several have indicated that never in their respective careers have they seen such targeted, aggressive, and sometimes legally questionable, actions against any business or person. Taken as individual incidents, the violations are ethically questionable. Both Commissioners acted beyond their authority to give one business a competitive advantage over another by using the regulatory power of the town government in an effort to harm a competitor. However, if taken as a whole, a pattern of abuse emerges. Commissioner Elder has personal and financial interests in seeing both Custom Image Printing and the Silo Hill Car Wash fail. They represent direct competition to his business interests, Emmitsburg Car Wash, and Chronicle Press, owned by his cousin, Lisa Elder. While Commissioner Elder has been relatively quiet in terms of public statements, he has been witness to actions, which have resulted in special treatment to his own interests, while placing hardships on the competition.

While Commissioner O'Neil does not seem to have a financial relationship with either the Emmitsburg Car Wash or Chronicle Press, he has been actively and aggressively involved in providing those businesses competitive advantages over the others by invoking the regulatory authority of the town government. This is a clear violation of the Emmitsburg Code. It should be noted that Commissioner O'Neil, as President of the Town Council, devoted an inordinate amount of staff time and public time during Town Council meetings to discuss the Silo Hill Car Wash. By suggesting that town staff conduct "unannounced" inspections, among other actions against Custom Image Printing, Commissioner O'Neil has acted beyond his role as a commissioner.

Resolved:

The Emmitsburg Ethics Commission finds that Commissioner Elder has violated Section 2.32.030 paragraph A and J. His continued involvement in matters related to Chronicle Press and Custom Image Printers, and the Silo Hill Car Wash constitute a clear violation of the Town Code and his oath to support and defend it. The Ethics Commission recommends that a Cease and Desist Order to that effect be issued to Commissioner Elder. Commissioner Elder is to refrain from participating in any activities related to the Silo Hill Car Wash and Custom Image Printing. This would include voting on related matters in the Town Council. Any further disciplinary action should be left up to the Mayor and the Town Council. Only members of the Town Council, who are not the subjects of this investigation, may vote on such actions.

The Emmitsburg Ethics Commission finds that Commissioner William B. O'Neil, Jr. to be in violation of Section 2.32.030 paragraph J, Emmitsburg Code. Commissioner O'Neil has pressured town staff to use the regulatory power of the town government to produce an outcome detrimental to the right of Custom Image Printing and Silo Hill Car Wash to operate. The Ethics Commission recommends that Commissioner O'Neil be issued a Cease and Desist Order. He is to refrain from participating in any activities related to the Silo Hill Car Wash and Custom Image Printing. This would include voting on related matters in the Town Council. Any further disciplinary action should be left up to the Mayor and the Town Council. Only members of the Town Council, who are not the subjects of this investigation, may vote on such actions.

Addendum:

Over the course of these investigations, Commissioner O' Neil has made a number of public comments, in both Town Council meetings and in the media intended to disparage the work of the Commission. On April 4, 2005, Commissioner O'Neil made a motion to remove Commission Chair, Ted Brennan, from office. The motion was seconded by Commissioner Elder. The motion failed on a two to two vote. Mayor Hoover voted against the motion in the absence of Commissioner Diane Walbrecker. Such a motion is a clear conflict of interest and never should have been offered. During the weekend of April 9 and 10, 2005, Commissioner O'Neil was seen by several witnesses distributing a door hangar flier to the citizens of Emmitsburg, which contains disparaging remarks about Commission Chair Brennan. The door hangar was not signed or attributed. The matter is being investigated at the time of this writing.

___/s/ Ted Brennan________

Ted Brennan, Chairman

___/s/ Scott McClendon____

Scott McClendon, Vice Chairman

___/s/ Stephen Kleindienst__

Stephen Kleindienst, Secretary