Mayor’s Choice for Borough Temporary Zoning Officer May be Serving Illegally
Last month, at the behest of the mayor and council president Claudette Williams, the Mount Pocono Borough Council passed a non-agenda surprise motion to fire Zoning Officer Dennis Noonan immediately and without notice (see separate article in this issue). The mayor asked, and council agreed (with only Fran O’Boyle voting against), to appoint Jean Simchak “as the temporary part-time zoning and codes enforcement officer.” The motion limited Simchak to 20 hours a week at $15 an hour. Simchak previously served as zoning officer for the borough, is the wife of former council member Michael Oser, and currently sits on the borough Zoning Hearing Board (“ZHB”). Oser is also chair of the Mount Pocono Municipal Authority. Prior to voting on the motion, council was reminded by the Borough Secretary of Simchak’s position on the ZHB. The Borough Solicitor told council that a ZHB member is disqualified from serving as a zoning officer. Because the ZHB hears appeals from zoning officer actions, being on the ZHB creates a conflict of interest. Such dual positions are prohibited by law. Council then proceeded to appoint Simchak, who began work the next day. Simchak refused to resign from the ZHB. The state Supreme Court has said that “employment which in its inception violates such an act . . . is illegal and against public policy .” The mayor and council president have not required Simchak to resign from the ZHB. They have also authorized payments to her in excess of the part-time hours expressly approved by council. In apparent violation of the council’s explicit limitations, Simchak appears to be working full time and has a title not created by any prior ordinance or resolution. The official borough website was changed to call her the “Consultant/Trainer for Zoning Officer and Code Enforcement”. After reading this article to an experienced municipal solicitor, that attorney told The Boro* that, “your borough could be facing some liability or legal action with residents or businesses challenging violations issued by a zoning officer who might not have been appointed properly.” The attorney also noted that elected officials who authorize or approve “payment for a person occupying a post in violation of law, for a position that doesn’t exist under your ordinances, and/or who is working full time in a position only authorized for part-time, could potentially be personally liable to the municipality for any illegal payments they authorize.” The attorney declined to be identified for this article, citing fear of retaliation from council, the mayor, or zoning officer, against the attorney or clients appearing before the council or other borough agencies. It did not take long for the inherent conflict of interest involved in Simchak’s apparently improper dual role to surface. At the first council meeting after she was appointed, Simchak told the council they needed to appoint an alternate ZHB member because there was an upcoming appeal. Instead of having her resign from the ZHB, the council voted to advertise for and appoint an alternate member of the ZHB.