Board of Supervisors Agenda

MINUTES
Upper Saucon Township Board of Supervisors
Regular Meeting
Monday, March 10, 2008 - 6:00 p.m.
Township Municipal Building

Members Present:
Miro A. Gutzmirtl, Chairman
Stephen C. Wagner, Vice Chairman
John E. Gilda, Jr.
Joseph M. Horvath
                                   
Members Absent:
Joyce V. White
                                   
Staff Attending:
Thomas F. Beil, Township Manager
Robert E. Kassel, Jr., Asst. Township Manager
Jeffrey Dimmich, Township Solicitor
Dennis Harman, P.E., Township Engineer

CALL TO ORDER
Chairman Gutzmirtl called the meeting to order at 6:00 p.m. in the Public Meeting Room of the Upper Saucon Township Municipal Building, 5500 Camp Meeting Road, Upper Saucon Township, Lehigh County, PA.

PLEDGE OF ALLEGIANCE
Chairman Gutzmirtl asked all in attendance to stand and recite the “Pledge of Allegiance.”

PUBLIC COMMENT
Public Comment is summarized as follows:

Helen Bresnock – 4230 Chelten Lane – Mrs. Bresnock asked the Township to do something about the horrendous condition of Lanark Road.

Mr. Harman said the Township would have to contact PennDOT regarding Mrs. Bresnock’s complaint, since Lanark Road was a State highway.

Mr. Beil told Mrs. Bresnock the Township would contact PennDOT via letter to express the complaints received from her and other residents and ask that the problem be addressed as soon as possible.

Judy Zabrecky – 6948 Wards Lane – Ms. Zabrecky revisited the matter she brought before the Board at the last meeting concerning uninspected seepage pits on the properties near her home. She felt the letter she sent the Township had been ignored and was upset that her request for further investigation had not produced any action. Ms. Zabrecky told the Board the effects of the run-off on her property, which she claimed were caused by the uninspected seepage pits.

Mr. Beil assured Ms. Zabrecky her correspondence and request had not been ignored and was in fact currently being investigated. He said the Township was examining the development plans, as well as all other records and documents relating to the subdivision. The Township, he said, was trying to determine who was responsible for what in connection to the seepage pits. Once answers had been acquired, Mr. Beil promised he would contact Ms. Zabrecky to share the information with her.

Chairman Gutzmirtl asked that the matter be placed on the next Planning and Zoning Committee agenda.

CHAIRMAN’S REMARKS
Chairman Gutzmirtl mentioned the rain barrel project headed by Erin Frederick, a member of the Township’s Environmental Advisory Council, the workshop that had recently taken place to construct the barrels, and the article featuring the project in The Saucon News.

PUBLIC HEARINGS
None

SUBDIVISIONS AND LAND DEVELOPMENTS
None

MINUTES
Regular Meeting of December 10, 2007
A motion was made by Mr. Horvath and seconded by Mr. Wagner to approve the minutes of the December 10, 2007 regular meeting of the Upper Saucon Township Board of Supervisors.

The motion carried by a vote of 3 to 0 with one abstention by Mr. Gilda, who was not a member of the Board when the meeting took place and Mrs. White absent.

Regular Meeting of December 26, 2007
A motion was made by Mr. Horvath and seconded by Mr. Wagner to approve the minutes of the December 26, 2007 regular meeting of the Upper Saucon Township Board of Supervisors.

The motion carried by a vote of 3 to 0 with one abstention by Mr. Gilda, who was not a member of the Board when the meeting took place and Mrs. White absent.

Reorganization Meeting of January 7, 2008
A motion was made by Mr. Horvath and seconded by Mr. Wagner to approve the minutes of the January 7, 2008 reorganization meeting of the Upper Saucon Township Board of Supervisors.
The motion carried by a vote of 4 to 0.

COMMITTEE REPORTS
None

ORDINANCES
None

RESOLUTIONS
Resolution No. 2008-15 – Censure of Joyce V. White and James H. White, Sr., for Breaching Their Fiduciary Duties as Elected Township Officials and Violating Their Oaths of Office
Chairman Gutzmirtl read the resolution for the record requesting it be included in full in the meeting minutes.

UPPER SAUCON TOWNSHIP
LEHIGH COUNTY
RESOLUTION NO. 2008-15

A RESOLUTION CENSURING JAMES H. WHITE, SR., AND JOYCE V. WHITE FOR BREACH OF THEIR FIDUCIARY DUTIES BY AND FOR THE TOWNSHIP OF UPPER SAUCON AND VIOLATION OF THEIR OATHS OF OFFICE, TOGETHER WITH ADDITIONAL RELIEF IN THE FORM OF FURTHER INVESTIGATIONS AND POSSIBLE SURCHARGE

WHEREAS, James H. White, Sr., was elected Township Supervisor beginning in the year 2000 and he served in that capacity until January 7, 2008; and

WHEREAS, Joyce V. White was elected Township Supervisor in the year 2004 with her term scheduled to end the first Monday in January 2010; and

WHEREAS, in their capacity as Township Supervisors, they received various and numerous attorney/client privileged communications from and by the Township Solicitor, including Solicitor Reports, all of which are protected by the attorney/client privilege; and

WHEREAS, only the Township can waive the attorney/client privilege for such documents and no individual supervisor is empowered to do so; and

WHEREAS, various litigation ensued involving McGrath Homes and the owners of Locust Valley Golf Course (hereinafter referred to as “McGrath Litigation”) concerning the potential land development of the Locust Valley Golf Course, (such litigation including, land development litigation, Sewage Facility Act litigation, private request and appeal to the Environmental Hearing Board litigation, and two civil rights actions), in all of which McGrath and the owners of the Golf Course were parties adverse to the Township, the Board of Supervisors, individual Supervisors and to the Township Manager; and

WHEREAS, during the course of the civil rights litigation, it has been discovered, that James H. White, Sr., and Joyce V. White were secretly cooperating with McGrath’s representatives by serving as a conduit to McGrath’s representatives by improperly and impermissibly turning over to that entity’s representatives, Township documents concerning the McGrath litigation both pre-dating and subsequent to the institution of the civil rights actions; and

WHEREAS, numerous additional documents, as well as attorney/client confidential communications, were turned over by James H. White, Sr., and Joyce V. White to McGrath to assist McGrath in his litigation against the Township including the Environmental Hearing Board litigation; and

WHEREAS, the attorney/client privileged documents include, but are not limited to, defense attorneys’ analysis of the litigation,  strategies, procedures, advice and other litigation-related matters; and

WHEREAS, the divulgence of this attorney/client information was done in conscious disregard of the welfare of the Township residents and the same potentially exposes the Township to liability and damages; and

WHEREAS, the acts of James H. White, Sr., and Joyce V. White covertly and secretly communicating with McGrath representatives both before and during the litigation was done deliberately and with the intent to undermine the legitimate defenses that the  Township has to the litigation  and to cause economic harm to the Township; and

WHEREAS, the actions of James H. White Sr., and Joyce V. White are violations of their duties and responsibilities as Supervisors of Upper Saucon Township: and

WHEREAS, the Township has been forced to spend substantial legal fees to attempt to remedy the breach of fiduciary duty by the Whites; and

WHEREAS, the actions of James H. White, Sr., and Joyce V. White are so reprehensible that they are deserving of immediate censure and require that the Township take the necessary steps to protect itself from further breaches of fiduciary duties by either James H. White, Sr., or Joyce V. White.

NOW, THEREFORE, IT IS HEREBY RESOLVED by the Board of Supervisors of the Township of Upper Saucon, Lehigh County, Pennsylvania, as follows:

1.  James H. White, Sr., past Supervisor of Upper Saucon Township, and Joyce V. White, current Supervisor of Upper Saucon Township, are hereby formally censured and admonished for their improper and illegal divulging of attorney/client materials and information to McGrath representatives relating to the McGrath litigation.

2.  Both James H. White, Sr., and Joyce V. White have breached their fiduciary duties to the residents of Upper Saucon Township, as well as to the Board of Supervisors of Upper Saucon Township.

3.  The actions of James H. White, Sr., and Joyce V. White have been continuous and ongoing as concerns the divulging of both private materials and information as well as privileged  attorney/client materials to McGrath over a period of years, including  numerous oral communications and written communications made in Executive Sessions by the Board.

4.  Joyce V. White, for her irresponsible and reprehensible conduct, is hereby removed from all committees of the Board and any other committees associated or connected with Upper Saucon Township.

5.  Joyce V. White shall be prohibited from sitting in any further Executive Sessions in which any litigation matters of any source are to be discussed as she has shown that she is incapable of maintaining the confidentiality of attorney/client privileged communications, which as a Township Supervisor, she had a fiduciary duty to maintain as confidential.

6.  The Solicitor and the Township Manager are hereby instructed to have no further communication with Joyce V. White as concerns any matters involving active litigation or potential litigation, which could involve the Township.

7.  The appropriate parties be instructed to undertake an investigation as to ethics violations by James H. White, Sr., and Joyce V. White and determine if there was any pecuniary,  monetary or other valuable consideration received by either of the Whites in exchange for their improper and illegal transfer of confidential information and materials.

8.  The Solicitors are hereby instructed to determine whether James H. White, Sr., and Joyce V. White can be surcharged or sued for the litigation costs, which have been incurred by the Township relating to the Whites’ breach of their fiduciary duty by revealing attorney/client privileged information and materials to an adverse litigant.

9.  Each Supervisor is hereby instructed not to divulge or share, in any way, with Joyce V. White any further attorney/client communications received in any form whatsoever including, but not limited to, Solicitor’s Reports, e-mails, legal memoranda or letters.

10.  Due to the actions of Joyce V. White in breaching her fiduciary duty, her oath of office, and her responsibility to the Township and its constituents and potentially causing them economic harm in a variety of ways, in addition to the censure set forth above, the Board hereby demands Joyce V. White tender her resignation as Supervisor of Upper Saucon Township.

DULY ADOPTED, this 10th day of MARCH, 2008, by the Board of Supervisors of the Township of Upper Saucon, Lehigh County, Pennsylvania, in lawful session duly assembled.

A motion was made by Mr. Horvath and seconded by Mr. Wagner to adopt Resolution 2008-15 censuring Joyce V. White and James H. White, Sr., for breach of their fiduciary duties by and for the Township of Upper Saucon and violation of their oaths of office, together with additional relief in the form of further investigation and possible surcharge.

Mr. Wagner said the comprehensive motion with the attached documents spoke for themselves.

Chairman Gutzmirtl echoed Mr. Wagner’s thoughts adding that accountability was of the upmost importance.

Frank Posivak  – 6487 Wild Cherry Drive – Mr. Posivak asked if McGrath could be held liable for accepting confidential documents from the Whites.

Attorney Dimmich chose not to answer Mr. Posivak’s question due to the fact that litigation was still pending.

Mr. Posivak then asked about the Township’s method for restricting and/or prohibiting the distribution of confidential information.

Chairman Gutzmirtl and Mr. Beil replied that confidentiality was understood when the oath of office was taken.

Attorney Donald Wieand – 190 Brodhead Road, Bethlehem – Attorney Wieand was present on behalf of the Whites and questioned the timing of the resolution, since Mrs. White recently had surgery and was unable to attend the meeting. Attorney Wieand requested the matter be postponed until a later date because not only could the Whites not be present, but he had only been retained days earlier and did not have an opportunity to fully review the case. He questioned the Board’s authority to censure current and former Board members. He also questioned the Board’s authority to remove Mrs. White from all committees and exclude her from executive sessions. Furthermore, Attorney Wieand speculated that adoption of the resolution would aid McGrath in their litigation against the Township.

Judy Zabrecky – 6948 Wards Lane – Ms. Zabrecky suggested in the future, a disclaimer be placed on all confidential correspondence and that the Township look into software that would restrict copying and forwarding of sensitive electronic communications.

Mr. Horvath was concerned about the absence of the Whites saying if they truly felt they were innocent they would have attended the meeting. He added he had no doubts about their wrongdoing.

Mr. Beil addressed the question of timing explaining this was the first meeting since the Township received confirmation in February of the disclosure of confidential information by the Whites.

Chairman Gutzmirtl called the Whites’ actions reprehensible with clear disregard for the best interest of the Township and its residents. Mrs. White, he said, would have the chance to respond at the next meeting.

Mr. Wagner commented that while Mrs. White could use her recent surgery as an excuse not to attend the meeting, be believed there was no reason why Mr. White could not be present to address the accusations. Therefore, Mr. Wagner felt the Board should move ahead with the resolution.

Mr. Gilda said the facts were clear and a conclusion could easily be made, so there was no reason to postpone action on the matter.

The vote was taken by roll call, and the results were as follows:

Chairman Gutzmirtl: Yes
Mr. Wagner: Yes
Mr. Gilda: Yes
Mr. Horvath: Yes

The motion carried by a vote of 4 to 0 with Mrs. White absent.

MOTIONS
None

CORRESPONDENCE AND INFORMATIONAL ITEMS
None

DIRECTION / DISCUSSION ITEMS
Zoning Hearing Board Agenda – March 17, 2008
Mr. Beil reviewed the one appeal appearing on the March 17, 2008 Zoning Hearing Board agenda.

Supervisors decided by consensus to allow the Zoning Hearing Board to handle the appeal without intervention by the Township.

BILLS, PAYROLLS, AND COMMISSIONS
Prepaid Invoice List #03102008 dated 03/07/2008…………$93,024.78
Warrant List #03102008 dated 03/07/2008…………………$323,308.47

A motion was made by Mr. Horvath and seconded by Mr. Gilda to authorize payment of the Prepaid Invoice List and Warrant List #03102008 dated 03/07/2008.

The motion carried by a vote of 4 to 0 with Mrs. White absent.

ADDITIONAL BUSINESS
None

COURTESY OF THE FLOOR
None

EXECUTIVE SESSION
None

ADJOURNMENT
A motion was made by Mr. Horvath and seconded by Mr. Wagner to adjourn the meeting.

The motion carried by a vote of 4 to 0 with Mrs. White absent.  The meeting was adjourned at 6:52 p.m.

                                                                       
Secretary