HomeMy WebLinkAbout1467 VickeryIn Re: Tom Vickery,
Respondent
File Docket:
X -ref:
Date Decided:
Date Mailed:
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Raquel K. Bergen
Nicholas A. Colafella
06 -065
Order No. 1467
4/28/08
5/15/08
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 ( "Ethics Act "), 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 Amended Investigative Complaint was subsequently filed,
amending the allegation section of the Investigative Complaint. Answers were filed to both
the Investigative Complaint and the Amended Investigative Complaint, and a hearing was
held. The record is complete.
This adjudication of the State Ethics Commission is issued under the Ethics Act 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 the Ethics Act. Any
person who violates such confidentiality commits a misdemeanor and, upon conviction,
may be 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.
Vickery, 06 -065
Page 2
I. ALLEGATIONS:
That Tom Vickery, a (public official /public employee) in his capacity as a Member
and Chairman of the Board of Supervisors of Bradford Township, McKean County violated
the following provisions of the State Ethics Act (Act 93 of 1998) when he used the authority
of his office for a private pecuniary benefit to enhance the value of property he was selling
by using the township engineer to perform services at a cost to the township to improve
property Vickery was selling a private individual; and when Vickery through the use of the
authority of his public office, caused a permit application to be submitted to the
Pennsylvania Department of Environmental Protection in the name of the township,
regarding the reconstruction of a catch basin, in an attempt to have the township perform
such work thereby eliminating the need and cost for Vickery to privately perform the work
necessary to resolve water issues on property he was selling.
§ 1103. Restricted activities
(a) Conflict of interest - -No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
65 Pa.C.S. § 1103(a).
§ 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 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. The term 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.
II. FINDINGS:
A. Pleadings
1. The Investigative Division of the State Ethics Commission received a signed, sworn
complaint alleging that Tom Vickery violated provisions of the State Ethics Act (Act
93 of 1998).
2. Upon review of the complaint the Investigative Division initiated a preliminary
inquiry on October 2, 2006.
3. The preliminary inquiry was completed within sixty days.
4. On November 28, 2006, a letter was forwarded to Tom Vickery, by the Investigative
Division of the State Ethics Commission informing him that a complaint against him
was received by the Investigative Division and that a full investigation was being
commenced.
Vickery, 06 -065
Page 3
a. Said letter was forwarded by certified mail, no. 7006 2150 0000 8776 4315.
b. The domestic return receipt bore the signature of Toni Vickery, with a
delivery date of November 30, 2006.
5. On February 22, 2007, the Investigative Division of the State Ethics Commission
filed an application for a ninety day extension of time to complete the Investigation.
6. The Commission issued an order on March 27, 2007, granting the ninety day
extension.
7 On May 18, 2007, the Investigative Division of the State Ethics Commission filed an
application for a second ninety day extension of time to complete the Investigation.
8. The Commission issued an order on June 11, 2007, granting the ninety day
extension.
9. On November 19, 2007, an amended Notice of Investigation was forwarded to Tom
Vickery by the Investigative Division of the State Ethics Commission informing him
that the allegations contained in the November 28, 2006, Notice of Investigation
were being amended.
a. Said letter was forwarded by certified mail, no. 7005 1160 0003 4345 9390.
10. Periodic notice letters were forwarded to Tom Vickery in accordance with the
provisions of the Ethics Law advising him of the general status of the investigation.
11. The Investigative Complaint was mailed to the Respondent on November 20, 2007.
12. Tom Vickery ... served as a Supervisor for Bradford Township, McKean County
from January 2002 until ... [January 2008; see, Fact Finding 67 a].
a. Vickery served as the Chairman of the Board of Supervisors in 2006.
b. Vickery has been appointed to the township's planning commission since [at
least] 2004.
c. Vickery served as the Superintendent of the Sewer Department in 2006.
13. Bradford Township is a second -class township governed by a three - member board
of supervisors.
a. Supervisors receive $625.00 gross pay per quarter as payment for their
services rendered in their supervisor capacity.
1. Regular meetings are held once per month.
2. Special meetings are held occasionally as needed.
14. The township secretary /treasurer is responsible for taking minutes of the monthly
meetings including the recording of votes.
15. Voting at Bradford Township meetings occurs via a group yes /no vote after a motion
is made and seconded.
16. The township secretary /treasurer and all three supervisors maintain signature
Vickery, 06 -065
Page 4
authority over the township accounts.
a. As of October 16, 2006, signatures on checks for payments above $1,000
required the signature of two supervisors and the secretary /treasurer.
b. Signatures on the checks are live signatures.
17. No verbal reading of the monthly bills occurs at the regular supervisors' meeting.
18. In 2005 Universal Well Services (UWS), Inc. had a ... facility located on Olean
Road in Foster Township, McKean County.
a. Foster Township, McKean County borders neighboring Bradford Township,
McKean County.
19. In or about November 2005 Tom Vickery suggested to UWS representatives Frank
Covine and Dick Remington that they examine the Old Corning building on Owens
Way (Bradford Township) as a possible site to relocate.
20. Vickery was in negotiations to sell the [Walters] property [at Rutherford Run Road
and High Street] to UWS ... [in or around March 2006].
21. The Agreement of Understanding on Vickery Enterprise letterhead issued to David
Walters included the following language:
This agreement has been reduced to writing to clarify and confirm the verbal
understanding between David E. and Mary E. Walters. The parcel or parcels
of land are in the Township of Bradford Warrant 3313. Understood to be
recorded in the McKean County Recorder of Deeds in Bk 479/982. The
parcel or parcel consist of 4.0 acres on the corner of Rutherford Run and 5.3
acres more or less at the rear of old Coca Cola property /Walters
building /Crossett facility. The parcel or parcels are agreed to be sold in total
to Tom R. Vickery DBA Vickery Enterprises for the total net sum of $75,000.
All closing costs are to be born by the buyer Tom R. Vickery. This agreement
will extend to the date of May 1, 2006 and is agreed to be extended at the
consent of both parties.
a. Amendments made to the Agreements were noted to use the former James
Walters land to have dirt for fill behind old Coca Cola Building and any fill,
dirt or shale for the four acre lot should be taken from the remaining Walters
lot.
b. A down payment for $15,000.00 would be made by April 8, 2006, and the
remaining $60,000.00 would be made when Tom (Vickery) receives the
deeds.
22. Vickery did not advise David Walters that he was attempting to sell the property to
UWS.
23. On or around March 31, 2006, Vickery submitted an initial Real Estate Proposal to
UWS for the property at the corner of Rutherford Run Road & High Street which
included the following:
a. The size of the property was 9.3 acres plus or minus.
b. The property was zoned M -3 which was General Manufacturing.
Vickery, 06 -065
Page 5
1. Vickery advised UWS M -3 was designed for heavy commercial use
that would allow UWS to conduct their activities.
c. Vickery was responsible for putting in sluice pipes and compacted fill.
d. Manhole Covers would be elevated to allow access of the sewer line that
crossed through the property.
e. Vickery could relocate UWS's outside activities to the property by June 1,
2006.
f. Vickery's initial offer to UWS was $359,000.00.
24. In or around March 2006 Vickery and UWS conducted discussions about the parcel
of land at High Street & Rutherford Run Road which included the following:
a. A sale price discussed was $300,000.
b. Vickery would be responsible for putting in fill in the lower parcel to
acceptable compaction using material from the upper parcel.
25. Vickery's purchase of the Walter's property and subsequent subdivision requests
were the subject of Bradford Township Planning Commission meetings in April and
May 2006.
a. Vickery was a member of the township planning commission during this time
frame.
26. The Bradford Township Planning Commission Meetings confirmed the following
regarding the Walters property:
4/11/06 Tom Vickery proposed a minor subdivision of lands of Dave E. and
Mary E. Walters to himself. Tom would be obtaining two parcels of
land, one parcel consisting of 5.2698 acres and one parcel consisting
of 4.00 acres, with Dave and Mary Walters retaining 1.4836 acres.
Approval was granted on the following contingencies:
Combining the two parcels and a new drawing showing such
Application and fees
Approval of Water
DEP approval for pipe installation in the creek
(Tom Vickery abstained from voting)
5/9/06 Walters to Vickery subdivision:
Correction of Ownership of property to be determined to be James
Walters not Dave and Mary Walters. Proper documentation will be
submitted by transaction parties. Contingent approval was given in
past township meeting. The contingency remains in effect with the
above change, and is not extended due to the above correction.
27. On April 26, 2006, DEP Senior Level Engineer Ed Orris met with Tom Vickery
acting as township supervisor, in the area of Rutherford Run Road and High Street
in Bradford Township.
28. On April 30, 2006, Tom Vickery and Bradford Township Supervisors Cary Frigo and
Steve Mascho conducted road inspections of the approximately 35.7 miles of roads
in the township.
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a. The road inspections included checking Rutherford Run Road.
1. Vickery did not advise the other two supervisors during the road
inspections about ... his intentions to develop the area.
29. Vickery ... attended a meeting on May 1, 2006, at the DEP offices in Meadville,
Pennsylvania, with UWS Executives, Art Kuholski of Lake Engineering, and DEP
Officials in which the following information was discussed:
a. DEP Officials advised that previously issued permits for the parcel of land at
Rutherford Run Road & High Street had expired.
b. DEP raised concerns about water runoff from the culvert that ran underneath
Rutherford Run Road.
30. On or around May 6, 2006, a Joint Permit Application was filed by Vanderpoel on
behalf of Bradford Township with DEP.
a. Vanderpoel filed the permit application at Vickery's direction.
b. The application identified the project as the Rutherford Run Catch Basin.
c. The Project Description was reconstruction of catch basin /ditch on
Rutherford Run.
d. The Project Location was Rutherford Run.
e. Tom Vickery certified and signed the application on May 8, 2006, as a
Supervisor for Bradford Township.
1. Vickery certified the DEP Permit Application as a Bradford Township
Supervisor ....
31. On or around May 12, 2006, UWS received a Draft Sales Agreement from Vickery
which provided that UWS would purchase the property at Rutherford Run Road &
High Street from Vickery in the amount of $300,000 subject to ... conditions
[including the following]:
a. Seventy -Five Thousand ($75,000) Dollars for the purchase of the Property.
b. Fifteen Thousand ($15,000) Dollars as a Finder's Fee for locating and
acquiring the property.
c. Thirty -Five Thousand ($35,000) Dollars down payment toward Vickery's
encasement of 100' of stream, relocation of 250' of stream, relocation of
sanitary sewer line, fill and compacting work on portion of the Property for
the anticipated placement of structures and other improvements thereon.
d. The remaining One Hundred Seventy -Five Thousand ($175,000) Dollars
would be paid as work progressed
e. Vickery would have the 1 right of refusal for a period of two years on any
buildings or structures UWS would build on the property.
32. ... [D]uring a telephone conversation between UWS Officials Mike Kloecker and
John Brautigam and Tom Vickery the following was discussed:
Vickery, 06 -065
Page 7
a. Vickery informed that the property would be transferred from Walters to
himself on May 22, 2006, and UWS needed to make a decision whether or
not to buy the property because another party ... was interested.
33. On May 22, 2006, Kloecker faxed Vickery a memo outlining the results of the UWS
internal meeting on May 20, 2006.
34. ... Tom Vickery went to the office of Pennsylvania State Representative Martin
Causer in Bradford, Pennsylvania.
a. Causer represents the 67 District that includes Cameron and Potter County,
and part of McKean County.
1. The part of McKean County includes Bradford Township.
35. Vickery went to Causer's Office ... seeking assistance from Causer in obtaining the
DEP Permits for the property he was trying to sell to UWS.
a. Vickery told Causer that if DEP Permits were not approved for a site in
Bradford Township, it could lead to a business moving out of the township
and state that could cost jobs.
1. Vickery wanted Causer to use his position as a state legislator to
expedite the permit process.
b. Members of the board of supervisors were not aware of Vickery's contact
with Causer.
36. Tom Vickery was sent documents ... from DEP Soils and Waterways Chief Patrick
Williams addressed to him at the Bradford Township Municipal Building, 136
Hemlock Street, Bradford, PA 16701.
37. At Vickery's direction, Bradford Township Engineer Alan Vanderpoel sent a letter to
Ed Orris of DEP on May 24, 2006, regarding the administrative completeness
review of Bradford Township Application No. E42 -322 on the Rutherford Run Road
Watercourse Reconstruction Project.
a. Vanderpoel supplied information to DEP addressing the questions raised in
the May 22, 2006, document from DEP pertaining to the permit application
filed.
b. Vanderpoel provided a Project Narrative to DEP on the Rutherford Run Road
Catch Basin Project which consisted of the following:
This project is the reconstruction of a township drainage facility. The existing
culvert under Rutherford Run road is in need of replacement. It appears that
the existing culvert joints have separated, as settlement is occurring over the
pipe; or the existing culvert has deteriorated and holes have formed in the
pipe sections. This culvert is buried approximately 8' deep, and would
require an extensive drainage down the existing (and adjacent) ditch along
Rutherford Run Road, which will discharge the stormwaterto Rutherford Run
creek (the same as the original discharge). The site plan shows this
alternate route. The drainage area is less than 100 acres. Rutherford Run
creek is a cold water fishery. This permit is required to change the water flow
in the existing waterway.
38. ... [D]uring a telephone conversation with Kloecker and Brautigam of UWS Vickery
Vicke , 06 -065
Page 8
advised:
a. He decided he was not going to develop the property at Rutherford Run
Road & High Street.
39. ... Mike Kloecker and John Brautigam of UWS telephonically contacted Vickery
and verbally agreed to the sale price of $150,000 for the property at Rutherford Run
Road & High Street.
a. UWS suggested paying Vickery a finder's fee and making the purchase
directly from Walters.
1. Vickery did not agree to this arrangement.
a. Brautigam directed UWS attorney Emil Spadafore to begin the legal process
to close on the property
40. On June 2, 2006, Patrick Williams of DEP submitted a letter to Tom Vickery in his
capacity as a Bradford Township Supervisor that advised him the application for the
Rutherford Run Road Watercourse Reconstruction Permit was administratively
complete.
41. On July 27, 2006, ACOE Operations Division Regulatory Chief Michael Cummings
sent Tom Vickery a letter to the offices of Bradford Township regarding DEP Joint
Permit E42 -322.
42. On June 5, 2006, an Agreement of Sale was entered into between Tom R. Vickery
D /B /A Vickery Enterprises referred to as Seller and UWS referred to as the Buyer
for land in Bradford Township, McKean County consisting of Tax parcels 17 -05-
204.91 and 17 -06- 100.6.
a. The agreement provided that Vickery would buy the property from the
Walters and sell the property to Universal Well Services, Inc. for $150,000.
b. A down payment was made by UWS to Vickery on June 5, 2006, in the
amount of $5,000.
43. The Agreement of Sale included as Item no. 7 Contingencies as outlined below:
That Seller (Vickery) obtain title to the subject parcel from the current owner,
James Walters;
That Buyer have a written agreement with David E. and Mary E. Walters,
Husband and Wife, providing that they will agree to facilitate Buyer's
mitigation of any wetlands on Tax Parcel 17 -05 -204 by agreement to allow
Buyer to relocate, onto a property of David E. and Mary E. Walters, Husband
and Wife at the northerly end along Rutherford Run stream at Tax parcel 17-
0005- 203 -03, whatever acreage of land Buyer is required to relocate from
the subject parcel.
That if Seller's application to DEP for the re- routing of the ditch along
Rutherford Run is denied, and it is necessary to re -route the water running
through said ditch across the subject parcel, Seller will, at his own expense,
in accordance with specifications acceptable to Buyer, and in a time from
[sic] which will not unreasonable delay Buyer's development of the subject
parcel, sluice said water through the subject parcel. This provision shall
survive the closing on the subject property; and
Vicker , 06 -065
Page 9
Bradford Township's Engineer approval of the relocation of the sewer line
beneath Rutherford Run stream, if necessary.
44. McKean County, Pennsylvania Recorder of Deeds confirmed the real estate
transactions between the Walters and Tom Vickery, and Tom Vickery and UWS.
a. On June 8, 2006, a Deed was made in the amount of $1.00 between David
E. Walters and Mary E. Walters, his wife, and James M. Walters, Single, by
his Attorney -in -Fact, David Walters, Grantors and Tom R. Vickery, D /B /A
Vickery Enterprises, a sole proprietorship, Grantee.
1. The land sold consisted of 4.0 acres, more or less at the southeast
corner of the intersection of High Street Extension and Rutherford
Run Road, a portion of Lots 136 and 138 of Warrant 3313 in Bradford
Township and 5.2698 acres, more or less situated in Warrant 3313 in
Bradford Township, McKean County.
2. The deed was recorded on July 7, 2006, at 11:23:16 AM.
b. On June 8, 2006, an Agreement was entered into in the amount of $1.00
between David E. and Mary E. Walters and Tom R. Vickery D /B /A Vickery
Enterprises that allowed Vickery or any of his assigns to relocate wetlands
that were on Tax Parcel 17 -05 -204 to Tax Parcel 17- 0005 -203.3 that was
owned by Walters.
1. The Agreement was recorded on July 7, 2006, at 11:36:38 AM.
c. On July 7, 2006, a Deed was made in the amount of $1.00 between Tom R.
Vickery, D /B /A Vickery Enterprises, a sole proprietorship, Grantor, and
UWS, Grantee.
1. The land consisted of 9.2698 acres, more or less located in Warrant
3313 in Bradford Township, McKean County.
aa. The acreage UWS purchased from Vickery was combined into
one lot.
2. The deed was recorded on July 7, 2006, at 11:36:37 AM.
45. E & M Engineers billed Bradford Township a total of $979.00 for the work
completed by Engineer Allan Vanderpoel and Clerk Michele Myers on inspecting,
processing, and submitting the DEP Joint Permit Application for the culvert
underneath Rutherford Run Road.
a. The only authorization for the services was Vickery.
46. E & M Invoices included the following:
Invoice Invoice
Number Date Hours Cost Description of Work
20796 6/12/06 2.00 188.00 Field- Rutherford Run
Catch Basin
Allan Vanderpoel
20796 6/12/06 6.50 $611.00 Office - Rutherford Run
Catch Basin
Allan Vanderpoel
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Page 10
20796 6/12/06 4.0 $160.00 Office - Rutherford Run
Catch Basin
Michele Myers
20878 7/17/06 0.50 $ 20.00 Office - Rutherford Run
Catch Basin
Michele Myers
Total $979.00
47. Vickery participated in voting to approve the monthly bills which included the
payments made to E & M Engineers for the work that was completed on the
Rutherford Run Catch Basin.
a. Minutes for the above - referenced meetings document no abstentions by Vickery
in association with the approval of the monthly bills.
48. Tom Vickery maintains a Business Checking Account with County National Bank
(Account # 1403898) in association with his business Vickery Enterprises.
a. The account was opened on January 29, 1996, and Toni Ann Vickery (Tom
Vickery's wife) and Tom Vickery were listed as the authorized signatures.
49. The payments Tom Vickery received from UWS for the down payment and final
payment on the sale of the property at the corner of Rutherford Run Road & High
Street were deposited into the Business Checking Account at County National Bank
as shown below:
UWS
Check Number Check Amount
72680 $5,000.00
1297 $143,591.95
50. Vickery's payment to David Walters for the purchase of the property at Rutherford
Run Road & High Street was made from his Business Checking Account at County
National Bank on the same day he received payment from UWS.
Canceled Check
Check Number Check Date Check Amount Return Date
2131 07/07/06 $75,000 07/10/06
51. Vickery's Business Checking Account at County National Bank was utilized to make
payments to the McKean County Recorder of Deeds for taxes and the transferring
of the deeds from the Walters to Vickery and then to UWS.
Canceled Check
Check Number Check Date Check Amount Return Date
2132 07/07/06 $56.00 07/11/06
2133 07/07/06 $60.50 07/11/06
2134 07/07/06 $1,500.00 07/11/06
52. On August 24, 2006, Vickery as Bradford Township Board of Supervisors
Chairman, received a Technical Deficiency Letter from Patrick Williams of DEP
regarding the Rutherford Run Road Watercourse Realignment Application that
addressed some concerns.
a. The proposed watercourse realignment would convert the drainage ditches
into Regulated Waters of the Commonwealth and the new channel areas
would carry additional responsibilities and liabilities.
Vickery 06 -065
Page 11
1 DEP required a written acknowledgement from each impacted
landowner of the new channel alignment, and it would state that the
landowner was aware the project would convert the ditches to
regulated waters of the Commonwealth.
2. DEP required written acknowledgement from each impacted
landowner from the existing channel south of Rutherford Run Road,
and the acknowledgement should state that each landowner was
aware that waters of the Commonwealth remain on the property
although the flow has been redirected.
b. There was concern about the stability of the new proposed realigned
waterway channel and the Best Management Practices (BMPs) was to insure
the new channel stability was inadequate [sic].
1. DEP wanted a plan documenting the BMPs proposed to stabilize the
existing ditches along Rutherford Run Road and High Street.
2. A written plan was needed showing the existing channel south of
Rutherford Run Road would not be impacted.
c. ... [The letter included a direction] to provide calculations to demonstrate that
the culvert under High Street could adequately convey the flood flows of the
realigned watercourse.
d. ... [The letter advised that in the event of a failure] to respond within 60 days
of the letter, unless otherwise extended by DEP, the application would be
considered withdrawn as provided in PA Code 25 Chapter 105, Section
105.19(b).
53. On August 30, 2006, Tom Vickery directed Allan Vanderpoel to fax the Technical
Deficiency Letter from DEP of August 24, 2006, and the ACOE letter dated July 27,
2006, to Mark Abrams at 265 -2040.
a. Mark Abrams (Adams) is a Legislative Assistant for Pennsylvania State
Senator Joseph Scarnati.
1. Scarnati represents the 25 District Legislative District that includes
Bradford Township, McKean County.
b. Vickery was seeking assistance from Scarnati's office in dealing with DEP.
54. On August 31, 2006, Bradford Township Supervisors Donald Cummins and Steve
Mascho submitted a letter to Patrick Williams of DEP notifying him that Bradford
Township wanted to cease and desist any continuance of Application No. E42 -322
regarding the Rutherford Run Road Watercourse Reconstruction project.
a. Williams advised Cummins and Mascho by way of letter on September 8,
2006, that DEP Application No. E42 -322 was considered withdrawn and the
file was closed.
55. On April 30, 2007, a letter was sent to Vickery by Mike Kloecker of UWS regarding
the culvert extension.
a. Vickery was advised that UWS had received a verbal permit approval from
DEP and the McKean County Conversation District to extend the culvert that
Vickery 06 -065
Page 12
runs beneath Rutherford Run Road and fill the property.
b. The specifications in the permit application were to extend the culvert
approximately 92 feet to the south and it was to be extended to a point two
feet beyond the first telephone pole.
c. UWS obtained two bids for completing the project.
1. Earthworks $10,297.00
2. Duffy, Inc. $10,016.75
56. On June 26, 2006, UWS received DEP Water Obstruction and Encroachment
Permit No. E42 -325 for Corner Lot Development in Bradford Township, McKean
County to conduct the following activities:
a. Fill a deminimus area (0.05 acre) of PEM wetland.
b. Construct and maintain a 92 -foot long, 15 -inch diameter culvert in a tributary
to Rutherford Run having a contributory drainage area of less than 100
acres.
c. Excavate and stabilize as restoration of an area of the right 50- foot floodway
along an approximately 250 -foot reach of Rutherford Run.
57. Vickery did not disclose to the other Bradford Township Supervisors that he was
submitting an application to DEP to re -route the flow of water.
B. Testimon
58. David Walters ( "Walters ") is a resident of Foster Township.
a. By deed dated June 8, 2006, a copy of which deed is in evidence as ID 11,
pages 7 -11, Walters, his wife, "Mary E. Walters," and his son, "James M.
Walters" conveyed to Vickery d /b /a Vickery Enterprises certain real estate
located at or in the vicinity of the intersection of High Street Extension and
Rutherford Run Road in Bradford Township, McKean County, Pennsylvania,
which real estate is as further described in said Deed and is hereinafter also
referred to as the Property."
(1) This deed was recorded in the McKean County Recorder of Deeds
Office on July 7, 2006. (ID 10, page 5).
b. The Property is partially depicted on the drawing in evidence as ID 18 -47.
c. The Walters sold the Property to Vickery for $75,000.
(1) The check in evidence as ID 12, page 6 is the check Walters received
in payment for the Property.
d. ID 10, page 1 is an Agreement that Vickery prepared and provided to
Walters, pertaining to the Property.
(1) This Agreement was signed by Walters and his wife, Mary E. Walters.
e. ID 12, pages 7 -10 consist of an Agreement dated June 8, 2006, between
Walters and Mary E. Walters and Vickery d /b /a Vickery Enterprises whereby
Vickery 06 -065
Page 13
the Walters agreed to facilitate the mitigation and relocation, by Vickery or
any of his assigns, of any wetlands existing on Tax Parcel 17 -05 -204, which
Tax Parcel was included within the Property.
59. Allan R. Vanderpoel, P.E. ( "Vanderpoel ") is employed by "E &M Engineers and
Surveyors PC" (hereinafter also referred to as "E &M Engineers ") as a civil engineer.
a. Vanderpoel /E &M Engineers serves as Township Engineer for Bradford
Township.
b. Vanderpoel /E &M Engineers served as Township Engineer for Bradford
Township in 2006.
c. Bradford Township is responsible for maintaining Rutherford Run Road.
d. On May 4, 2006, Vickery telephoned Vanderpoel regarding a problem with a
pipe /culvert (hereinafter referred to as the Culvert ") running under
Rutherford Run Road where the Property is located.
(1) The telephone call and the conversation regarding the Culvert were
initiated by Vickery.
(2) Vickery contacted Vanderpoel in Vickery's capacity as a Supervisor
for Bradford Township.
(a) Vickery was also head of the Bradford Township Roadway
Department.
(3) Vickery told Vanderpoel that the Culvert was in poor condition and
was deep.
e. Bradford Township is responsible for maintaining the Culvert.
f. Vickery brought the matter of the condition of the Culvert to Vanderpoel's
attention.
(1) Prior to receiving Vickery's telephone call on May 4, 2006,
Vanderpoel had not been aware of any problem at the Culvert site.
g. Vickery asked Vanderpoel if Vanderpoel /E &M Engineers could look at the
Culvert site and make the repairs, if possible, for the Culvert.
h. Vanderpoel met Vickery at the Culvert site on the morning of May 4, 2006.
(1) Vanderpoel testified that it was extremely difficult to see up the
Culvert.
(2) Vanderpoel stated that it would have been possible to see what was
happening inside the Culvert by running a television camera into the
Culvert.
(3) Vickery did not ask Vanderpoel to run a television camera into the
Culvert, and Vanderpoel did not do so.
Vanderpoel testified that he believes the Culvert has a separated joint.
Vickery 06 -065
Page 14
J.
(1) Vanderpoel testified that there exists a depression in the ground over
the location of the Culvert and water is running under the Culvert to a
degree, indicating that there is a joint problem in the Culvert.
(2) Vanderpoel testified that at some future point in time, which point he
could not predict, work would be needed at the Culvert site.
Vanderpoel testified that if the problem with the Culvert would not be
corrected, at some point in time, the result would be, at a minimum,
the blocking of the Culvert, with water running over Rutherford Run
Road, and at worst, damage to Rutherford Run Road itself.
(4) On May 4, 2006, the Culvert site was not in immediate danger of
collapsing.
There were two alternative methods for correcting the perceived problem
with the Culvert, which were: (1) to replace the Culvert in its current
location; or (2) to re -route the water and block the Culvert so that, instead of
running through the Culvert under Rutherford Run Road and onto the
Property in what has been designated on the drawing in evidence as
Respondent's Exhibit N (see, Fact Finding 93) as the "Existing waterway"
cutting through the Property to Rutherford Run Creek, the water would
instead run along Rutherford Run Road in an existing ditch north of said
road, then underneath Rutherford Run Road and through an existing ditch
along the edge of the Property on the east side of High Street and emptying
into Rutherford Run Creek.
(3)
(1) Vanderpoel testified that the re- routing alternative was not something
that Vanderpoel considered a normal practice and had not entered
Vanderpoel's mind "until it was brought up that that's what could be
done." (January 29, 2008, Tr. at 156).
k. It was Vickery who suggested to Vanderpoel using the re- routing alternative.
(1) Prior to the proposed project at the Culvert site, Vickery never asked
Vanderpoel to divert the flow of an existing waterway.
On May 4, 2006, when Vanderpoel met with Vickery at the Culvert site,
Vanderpoel knew that there was some type of a connection" between
Vickery and the Property, but Vanderpoel did not know what the connection
was. (January 29, 2008, Tr. at 79).
(1) Vickery did not disclose to Vanderpoel Vickery's connection to the
Property.
m. Vanderpoel testified that when he first analyzed the two alternatives for
correcting the problem at the Culvert site, Vanderpoel believed that the
cheaper alternative was to re -route the water.
(1) Vanderpoel testified that at first, he did not think that a permit would
be required for re- routing the water at the Culvert site.
(2) Vanderpoel estimated that the construction cost of the re- routing
alternative (exclusive of the costs of obtaining permits) would have
been approximately $500.00.
Vickery 06 -065
Page 15
n. Vanderpoel estimated that the cost to excavate and replace the existing
Culvert and put fill and asphalt over the new culvert would have been
approximately $1,000.
(1) This alternative would not have required a DEP permit.
(a) Vanderpoel testified that initially, he did not know that a DEP
permit would not have been required to replace the Culvert.
(2) Vanderpoel testified that this alternative would have cost only $200-
$300 if a television camera would have revealed that the problem with
the Culvert was located at a point that would not have required
digging up the highway.
o. After contacting Ed Orris, a "permit coordinator" with the Pennsylvania
Department of Environmental Protection ( "DEP "), Vanderpoel learned that a
permit would be required to re -route the water at the Culvert site.
On May 4, 2006, after meeting with Vickery at the Culvert site, Vanderpoel
faxed to Ed Orris the documents in evidence as ID 13, pages 2 -5.
(1) The faxed transmission included a cover sheet with the following
request: "Ed: Could you tell us what permit is needed to accomplish
the following work for Bradford Township, McKean County." (ID 13,
page 2).
(2) The proposed work was set forth on the remaining pages of the fax at
ID 13, pages 3 -5.
The faxed transmission included a statement by Vanderpoel that the
most economical solution for correcting the problem at the Culvert site
would be to plug the Culvert and route the storm water in the existing
ditch along Rutherford Run Road. (ID 13, page 3).
(4) The faxed transmission included a hand drawing of the area, which
erroneously indicated the presence of an existing ditch as being
along the west side of High Street rather than along the east side of
High Street.
On May 5, 2006, Vanderpoel received a telephone call from Ed Orris of
DEP, who indicated that a permit would be needed to accomplish the
proposed work.
r. Vanderpoel received authorization /direction to apply for a DEP permit to re-
route the water at the Culvert site (which re- routing is hereinafter also
referred to as the "Re- Routing Project."
s. The Re- Routing Project would have affected the Property, because the
waterway designated on Respondent's Exhibit N as "Existing waterway"
(hereinafter referred to as the "Existing Waterway ") would no longer have
flowed through the middle area of the Property; rather, the water would have
been re- routed through existing ditches along the northern side of Rutherford
p.
q.
(3) Vanderpoel testified that the process of going through DEP to re-
route the water was more complicated than Vanderpoel thought it
would be.
(3)
Vickery 06 -065
Page 16
Run Road and the eastern side of High Street, with the latter ditch being
along the edge of the Property.
t. From a property development perspective, it would be more desirable to
have the Existing Waterway re- routed as contemplated by the Re- Routing
Project, because that would free up the land for more use in the middle of
the Property.
u. Although construction can occur on top of a sluiced ditch, to sluice the
Existing Waterway would have required a permit obtained at the Property
owner's expense.
v. Bradford Township would not have paid E &M Engineers to be involved with
sluicing the Existing Waterway, because the Property is privately owned.
w. Vanderpoel's work in relation to the Culvert site and the Re- Routing Project
was done in his capacity as the Bradford Township Engineer.
x. As the Bradford Township Engineer, Vanderpoel /E &M Engineers prepared
and forwarded to DEP the "Joint Application for Pennsylvania Water
Obstruction and Encroachment Permit and U.S. Army Corps of Engineers
Section 404 Permit" that is in evidence as ID 13, pages 9 -61 (hereinafter
also referred to as the "Permit Application ").
(1) The Permit Application was dated May 8, 2006.
(2) The Permit Application identified Bradford Township as the Applicant
(ID 13, pages 9, 39).
(3) The Permit Application identified Supervisor Tom Vickery as the
Appplicant's contact person (ID 13, page 39).
(4) The Permit Application was to accomplish the Re- Routing Project.
(5) The Permit Application identified Walters as one of the property
owners with land adjoining the project property.
(6) The Permit Application was signed by Vickery as a Bradford
Township Supervisor.
(7) The Permit Application was originally signed by Vanderpoel as a
witness to Vickery's signature.
(8) ID 13, pages 12, 14 consist of letters that were required to be sent to
the municipality and the county, notifying them of the Permit
Application.
(a) The letters identified the Township as the Applicant and
Vickery as the Applicant's contact person at the Township's
following address: 136 Hemlock Street, Bradford, PA 16701.
(b) The letter to the Township was forwarded by certified mail and
was received by Bradford Township employee Kathleen Little
on May 8, 2006.
y.
Vanderpoel testified that a Township Supervisor's signature was required for
the Permit Application.
Vickery 06 -065
Page 17
z. Vanderpoel forwarded the Permit Application to DEP under cover letter
dated May 11, 2006 (ID 13, page 8).
aa. At the time Vanderpoel forwarded the Permit Application to DEP, he did not
have any personal knowledge of whether Vickery had been involved in any
conversations with Walters about buying the Property.
bb. Vanderpoel testified that if, at the time he was submitting the Permit
Application to DEP, he had been aware that Vickery was either the owner of
the Property or was negotiating to buy and sell the Property, he
(Vanderpoel) would have contacted the other two Bradford Township
Supervisors to obtain the concurrence of the three Bradford Township
Supervisors as to the work he was performing at Vickery's behest.
cc. DEP received the Permit Application on or before May 18, 2006.
dd. By letter dated May 22, 2006 (ID 13, pages 62 -63), DEP notified Vickery of
technical deficiencies with respect to the "administrative completeness" of
the Permit Application.
ee. In his capacity as Township Engineer, Vanderpoel prepared and forwarded
to DEP a letter dated May 24, 2006, which is in evidence as ID 13, pages
64 -65, together with attachments in evidence as ID 13, pages 66 -88, in order
to respond to the DEP notice of technical deficiencies (ID 13, pages 62 -63).
(1) As part of correcting technical deficiencies with the Permit
Application, the "Certification and Signature" section of the Permit
Application was changed so that Township Secretary Annette Auteri
rather than Vanderpoel witnessed Vickery's signature (ID 13, page
66).
ff. A DEP notice dated June 2, 2006, was issued to Vickery, with a copy to
Vanderpoel (ID 13, pages 91 -92), indicating that the Permit Application had
been determined to be administratively complete and would be processed.
On July 27, 2006, the Army Corps of Engineers issued an authorization for
the Re- Routing Project to proceed (ID 13, pages 93 -98).
(1) From May 11, 2006, when the Permit Application was forwarded to
DEP, through July 2006, Vickery did not disclose to Vanderpoel either
that Vickery had an agreement of sale for the Property or that Vickery
had purchased the Property.
hh. As of August 21, 2006, Vanderpoel did not have formal knowledge of
whether Vickery had any interest in the Property, but he knew that there
were some types of negotiations going on" (January 29, 2008, Tr. at 95),
and that Vickery had previously asked Vanderpoel /E &M Engineers to
prepare a permit for waterway work on the Property, which work
Vanderpoel /E &M Engineers had declined due to a conflict of interest.
gg .
(1) Having Vickery's authority to submit the Permit Application,
Vanderpoel did not think the consent of the other Bradford Township
Supervisors was required to submit the Permit Application, and so he
(Vanderpoel) did not contact them.
Vickery 06 -065
Page 18
ii. ID 13, pages 102 -102A consist of a letter dated August 24, 2006, from
Patrick G. Williams, P.E. of DEP to Vickery with a copy to Vanderpoel.
(1) This letter lists certain deficiencies with the Permit Application.
jj. At some point during the processing of the Permit Application, Vanderpoel
became aware that Bradford Township Supervisor Steve Mascho was
objecting to the proposed Re- Routing Project.
kk. During the summer of 2006, Vanderpoel met with Steve Mascho at the
Culvert site.
(1) Vanderpoel pointed out to Supervisor Mascho depressions in the
shoulder of the road.
(3)
(3)
(a) The depressions were not on the paved surface of Rutherford
Run Road.
(2) At the time Vanderpoel and Supervisor Mascho met at the Culvert
site, the Culvert was not blocked, and water was flowing through the
Culvert.
Vanderpoel testified that Supervisor Mascho stated that he
(Supervisor Mascho) did not think the Culvert needed to be replaced,
but that if it did, it would be replaced in place across Rutherford Run
Road.
II. The Township withdrew the Permit Application.
mm. Vanderpoel /E &M Engineers billed Bradford Township in the total amount of
$979.00 for the work related to the Permit Application.
(1) ID 16, page 1 consists of the first page of an invoice dated June 12,
2006, from E &M Engineers to Bradford Township, which invoice
includes the amounts of $188.00 (designated as Task 11- Field-
Rutherford Run Catch Basin) and $771.00 (designated as Task 11-
Office- Rutherford Run Catch Basin), both of which amounts were
billed to Bradford Township for work related to the Permit Application.
(a) ID 16, pages 4 -5 consist of the Bradford Township check and
related information indicating payment by Bradford Township
to E &M Engineers in the amount of $959.00 for amounts billed
related to the Permit Application.
(2) ID 16, page 3 consists of an invoice dated July 17, 2006, from E &M
Engineers to Bradford Township, which invoice includes the amount
of $20.00 (designated as Task 11- Office - Rutherford Run Catch
Basin), which amount was billed to Bradford Township for work
related to the Permit Application.
(a) ID 16, pages 6 -7 consist of the Bradford Township check and
related information indicating payment by Bradford Township
to E &M Engineers in the amount of $20.00 for the amount
billed related to the Permit Application.
Vanderpoel testified that of the total of $979.00 billed to Bradford
Township for work related to the Permit Application, $200 -$300 was
Vickery 06 -065
Page 19
for follow -up to the initial permit application, relating to DEP
responses as to administrative completeness and technical
deficiencies.
nn. Vanderpoel testified that after he had submitted the Permit Application, he
learned that the Re- Routing Project would have made the existing ditches
along Rutherford Run Road and High Street regulated waterways, such that
any work on those ditches would have also fallen under DEP control.
00. No work has been done to fix problems at the Culvert site.
(1) Rutherford Run Road has not collapsed.
Respondent's Exhibit N is an amended version of the drawing in evidence as
ID 18, page 47.
(1) Respondent's Exhibit N bears the designation, "REVISED 1/24/08."
(2) Respondent's Exhibit N, which was prepared by Vanderpoel, correctly
indicates the placement of the existing ditch along High Street on the
Property as being along the east side of High Street.
60. Annette Auteri ( "Auteri ") served as Secretary /Treasurer of Bradford Township from
January 2, 2005, until approximately March of 2007.
a. As Bradford Township Secretary /Treasurer, Auteri took the minutes of the
Bradford Township Board of Supervisors ( "Township Board ") meetings.
(1) Auteri prepared the Township Board meeting minutes by listening to
tape recordings of the meetings.
b. ID 14, pages 1 -91 consist of Township Board meeting minutes and Bradford
Township Vacancy Board meeting minutes taken by Auteri.
c. As Bradford Township Secretary /Treasurer, prior to each Township Board
meeting, Auteri would place code(s) on each bill, indicating the particular
account funds from which the bill would be paid, and would then place the
bills on a table in the "supervisors' office" for review by the Township
Supervisors.
pp.
d. The Township Supervisors would review the bills prior to the meeting and
would place their initials on each bill to indicate that they had seen it.
e. The total tally of the bills and a printout listing the proposed payments to
each payee would be presented at the Township Board meeting.
f. The Township Supervisors voted to authorize payment of the bills at the
Township Board meetings.
During Auteri's tenure as Bradford Township Secretary /Treasurer, the
Township mail was placed on a table for review by the Township
Supervisors.
h. It was a practice at Bradford Township for supervisors to initial mail when
they had read it.
g.
Vickery 06 -065
Page 20
J.
In her capacity as Bradford Township Secretary, Auteri signed the page of
the Permit Application that is in evidence as ID 13, page 66, witnessing
Vickery's signature, because she was asked to do so.
ID 16, pages 1 -2 consist of an invoice dated June 12, 2006, from E &M
Engineers to Bradford Township, with charges totaling $959.00 for tasks
involving the Rutherford Run catch basin.
(1) This invoice was initialed by both Supervisor Cary Frigo and
Supervisor Steve Mascho, indicating that they had seen the invoice.
k. ID 16, page 3 consists of an invoice dated July 17, 2006, from E &M
Engineers to Bradford Township, with charges in the amount of $20.00 for a
task involving the Rutherford Run catch basin.
In June or July of 2006, as a result of reviewing one or both of the E &M
Engineers bills at ID 16, pages 1 -3, Auteri contacted Bradford Township
Supervisors Cary Frigo and Steve Mascho and asked them why the
Township was paying for engineering services at the Rutherford Run catch
basin.
(1) Cary Frigo and Steve Mascho instructed Auteri to contact Vanderpoel
to get more detailed information regarding the bills, and Auteri did so.
m. Bradford Township paid the June 12, 2006, and July 17, 2006, E &M
Engineers invoices (ID 16, pages 1 -3).
n. The E &M Engineers charges totaling $959 for the Rutherford Run catch
basin on invoice number 20796, dated June 12, 2006 (ID 16, pages 1 -2)
were approved for payment by the Township Board at its June 19, 2006,
Regular Meeting (ID 14, pages 23 -26).
o. ID 16, pages 4 -5 consist of a Bradford Township check dated June 21, 2006,
in the amount of $1,120.00 and a carbon copy of the check with details
indicating payment by Bradford Township to E &M Engineers in the amount
of $959.00 for amounts billed in relation to the Rutherford Run Catch Basin.
P.
q.
(1) This check was signed by Auteri and Supervisor Frigo (ID 16, page
4).
The E &M Engineers charge of $20 for the Rutherford Run catch basin on
invoice number 20878, dated July 17, 2006 (ID 16, page 3) was paid in
August 2006.
ID 16, pages 6 -7 consist of a Bradford Township check dated August 22,
2006, and a carbon copy of the check with details indicating payment by
Bradford Township to E &M Engineers in the amount of $20.00 for the
amount of $20.00 billed in relation to the Rutherford Run Catch Basin.
(1) This check was issued following the August 21, 2006, Regular
Meeting of the Township Board. (ID 14, pages 32 -37).
(2) This check was signed by Auteri and Supervisor Mascho (ID 16, page
6).
r. ID 14, pages 54 -62 consist of the minutes of the September 18, 2006,
Regular Meeting of the Township Board.
Vickery 06 -065
Page 21
(1) Auteri testified that this was a long and hostile meeting.
(2) Auteri testified that these minutes are accurate.
(3) Auteri testified that she prepared these minutes by listening carefully
to the audiotapes of the meeting and putting into the minutes verbatim
as much as she could of what the speakers said.
(4) Auteri testified that she remembers the following commentary at this
meeting, which is recorded in the minutes:
Don Cummins wanted to be sure he understood
everything and made the following statement. If this
would have went [sic] through, and the township would
have rerouted the water down the side of the road, you
wouldn't have had to pay for the pipe. Tom Vickery
said that was an accurate statement. Mr. Cummins said
it would behoove Tom Vickery to get the water off there,
down the side of the road so it wouldn't cost you any
money. Mr. Vickery confirmed this was an accurate
statement.
(ID 14, page 59).
61. Cary Frigo ( "Frigo ") is a former Supervisor of Bradford Township, having served in
that capacity from October of 1987 to August of 1994 and from January of 2004 to
his resignation from office in July of 2006.
a. In May or June 2006, Frigo first became aware of a project at the Culvert
site.
b. Auteri contacted Frigo and Supervisor Mascho regarding the E &M Engineers
invoice(s) in evidence at ID 16, and Frigo and Supervisor Mascho directed
Auteri to confer with Vanderpoel to determine what the invoice(s) were for.
c. Vickery did not inform Frigo that he (Vickery) was going to re -route the water
at the Culvert site.
d. The Bradford Township Supervisors never voted to re -route the water at the
Culvert.
e. Frigo did not direct Vanderpoel to do any work at the Culvert site.
f. Frigo did not have any discussions with Vanderpoel regarding the project at
the Culvert site until the July 17, 2006, Township Board meeting (ID 14,
pages 28 -31).
g.
Frigo did not have any involvement with the submission of the Permit
Application to DEP.
h. Frigo resigned from office at the July 17, 2006, meeting of the Township
Board.
Frigo initialed the E &M Engineers invoice dated June 12, 2006, in evidence
as ID 16, pages 1 -2; participated in the unanimous vote of the Township
Board to approve the payment of invoices including that invoice; and signed
Vickery 06 -065
Page 22
J.
the check that paid for services included within that invoice designated as
relating to the Rutherford Run catch basin.
(1) Frigo initially thought that the reference to the catch basin was
referring to a catch basin only, not to a catch basin and cross -pipe.
(2) At the time Frigo initialed the E &M Engineers invoice in evidence as
ID 16, pages 1 -2, as well as in July 2006, Frigo was not aware of any
agreement that Vickery had with Universal Well Systems regarding
the Property.
(3)
Frigo had heard rumors that Vickery was buying the Property.
Township Resolution 88 -7, which is in evidence as Respondent's Exhibit I,
was passed during Frigo's first term of office.
(1) Township Resolution 88 -7 does not specifically reference
professional services.
(2) Township Resolution 88 -7 does not permit /authorize purchasing an
item for personal purposes.
k. Bradford Township had a legal duty to maintain Rutherford Run Road and
the Culvert.
It was Frigo's belief that as head of the Township Roadway Department,
Vickery had the authority to submit a permit application to DEP, without the
consent of the other supervisors, to repair a Township obligation where the
permit and the work for the permit were less than $2,000.
m. Prior to testifying at the hearing in this matter on January 29, 2008, Frigo
had never seen the Agreement of Sale between Vickery d /b /a Vickery
Enterprises (as seller) and Universal Well Services, Inc. (as buyer) for the
Property, which Agreement of Sale is in evidence as ID 12, pages 14 -16.
n. In June 2006, Frigo was not aware of the provision designated as paragraph
7 (c) in the Agreement of Sale between Vickery d /b /a Vickery Enterprises (as
seller) and Universal Well Services, Inc. (as buyer) for the Property (ID 12,
pages 14 -16).
62. State Representative Mgrtin Causer ( "Representative Causer ") is the State
Representative for the 67 Legislative District, having served in that capacity since
2002.
a. The 67 Legislative District includes Bradford Township.
b. Vickery contacted Representative Causer regarding DEP issues with the
Property.
(1) It was Representative Causer's impression that Vickery approached
him regarding this matter in Vickery's capacity as a Bradford
Township Supervisor.
(2) Vickery did not disclose to Representative Causer whether Vickery
had any interest in the Property.
Vickery 06 -065
Page 23
63. Donald R. Cummins ( "Supervisor Cummins ") is a Bradford Township Supervisor,
having served in that capacity from August 2006 to the present.
a. In his private capacity, Supervisor Cummins is employed as a project
manager for "Bob Cummins Construction."
b. Supervisor Cummins was initially appointed as a Bradford Township
Supervisor in August 2006, to replace Frigo.
c. Supervisor Cummins was appointed as a Bradford Township Supervisor by
the Bradford Township Vacancy Board at a meeting held on August 24,
2006.
(1) The Bradford Township Vacancy Board was chaired by Supervisor
Cummins' brother, Bob Cummins.
(2) Bob Cummins had been appointed to the Bradford Township Vacancy
Board by the Bradford Township Supervisors, including Vickery.
Bob Cummins cast the deciding /tie - breaking vote to appoint
Supervisor Cummins to the office of Bradford Township Supervisor.
(4) ID 14, page 48 consists of a letter /memorandum dated August 24,
2006, filed by Bob Cummins with Auteri for placement with the
minutes of the Vacancy Board Meeting of August 24, 2006, disclosing
his familial relationship with Supervisor Cummins.
d. Supervisor Cummins testified that he became aware of the Permit
Application at or about the time he became a Bradford Township Supervisor.
(1) Supervisor Mascho brought to the attention of Supervisor Cummins
the payment by Bradford Township of invoice(s) from E &M Engineers
for services rendered with respect to the Culvert site.
e. Supervisor Cummins reviewed Bradford Township records pertaining to the
Culvert and discussed the Culvert with Vanderpoel.
(1) It was Supervisor Cummins' understanding that Vickery told
Vanderpoel what to write for the project narrative portion of the Permit
Application (ID 13, page 68), and that Vanderpoel had not seen the
Culvert.
(3)
f. It was Supervisor Cummins' determination that the Culvert did not need to be
replaced, that Bradford Township monies did not need to be expended, and
that the purpose of re- routing the water was to dry up the Property.
Supervisor Mascho and Supervisor Cummins withdrew the Permit
Application by a letter to DEP dated August 31, 2006.
(1) The August 31, 2006, letter in evidence as ID 18, page 4 is the letter
by which Supervisor Mascho and Supervisor Cummins withdrew the
Permit Application.
(2) The decision to withdraw the Permit Application was made
approximately six days after Supervisor Cummins was appointed to
the office of Bradford Township Supervisor, and within days after
g.
Vickery 06 -065
Page 24
Supervisor Cummins was sworn into office and took his seat on the
Township Board.
(3) The decision to withdraw the Permit Application was not made
through official action at a public meeting.
(a) Supervisor Cummins testified that he did not know whether it
was necessary to discuss rescinding the permit at a public
meeting because the initiation of the permitting process was
never brought up at a public meeting.
(4) The letter in evidence as ID 18, page 3 is the letter by which DEP
responded to the August 31, 2006, letter rescinding the Permit
Application.
h. Vickery did not participate, and was not asked to participate, in the action to
withdraw the Permit Application.
The Township has not taken any action to fix the Culvert.
The Township has not taken any action to re -route the water at the Culvert
site.
k. The Culvert has not collapsed.
Rutherford Run Road has not collapsed .
m. The water at the Culvert site is flowing freely under Rutherford Run Road
and through the Existing Waterway into Rutherford Run Creek.
n. Supervisor Cummins was present at the September 18, 2006, Regular
Meeting of the Township Board.
o. Supervisor Cummins testified that that to the best of his recollection, the
following portion of the minutes of the September 18, 2006, Regular Meeting
of the Township Board accurately sets forth commentary by Mike Kloecker at
the Township Board meeting:
Mike Kloecker representing Universal Well Services
announced that Universal purchased property at the corner of
Rutherford Run and High Street. Mr. Kloecker said Universal
was told in numerous conversations that they were purchasing
the property from Tom Vickery. Mr. Kloecker said that Mr.
Vickery informed them that the culvert running under
Rutherford Run Road was not going to be an issue with them
developing the property. Mr. Vickery said this was correct.
Mr. Kloecker said he was told Bradford Township was going to
remove the culvert because the culvert was in need of repair.
Universal Well Services was uncomfortable with the DEP
application process. Mr. Kloecker went on to say that the
language in their sales contract states that if the DEP
application is denied that Tom Vickery will pay for putting in
the culvert. Mr. Kloecker said Universal was informed last
week the DEP permit application was withdrawn by Bradford
Township. Mr. Kloecker shared his conversation he had
earlier with Steve Mascho and was told there was nothing
wrong with the culvert. Mr. Kloecker said Mr. Mascho didn't
Vickery 06 -065
Page 25
(ID 14, page 56).
p.
have any knowledge of the DEP application being submitted
back in June /July. Mr. Kloecker said he was curious as to how
a DEP permit application can be submitted by a township
without everyone on board and having knowledge of it
particularly when the application involved engineering work
that was to be paid to E & M Engineering.
Supervisor Cummins testified that the following portions of the minutes of the
September 18, 2006, Regular Meeting of the Township Board accurately set
forth discussion that occurred at the Township Board meeting:
(1) Don Cummins asked Mr. Kloecker to confirm what was said
earlier. There was a sales agreement and if the DEP would
not approve the change of the culvert, Chairman Vickery would
replace it at his own expense? Mr. Kloecker said this was
correct. Mr. Cummins asked under whose authority. Mr.
Kloecker elaborated by saying that there is a catch basin on
the upper side of the road and the water that comes off of the
hillside runs into a pipe into the catch basin which runs under
the road and empties out onto Universal's property. If this
needs to be extended over to the creek, Mr. Vickery said he
would do that at his expense.
(ID 14, page 58).
(2) Don Cummins spoke up and said that all of this happened
before he came in as a supervisor, however, he has taken the
time to look at things, read the minutes for this year and speak
to former supervisor, Cary Frigo. He also said he has looked
at the culvert and discussed it with Al Vanderpoel and Steve
Mascho. Mr. Cummins said he understood that no one ever
knew about E & M Engineering having to go up to the property
and look at anything until a bill came. Mr. Cummins believed
that is what Mr. Yovichin was alluding to, that he had
mentioned in the July minutes of the meeting and asked why
the township was paying $700 to E & M. Mr. Cummins said
that he has to respectfully disagree that the culvert is in need
of any repair. Mr. Cummins went on to tell everyone that there
was a road supervisor meeting 30 days prior and not one word
was mentioned about the culvert. Mr. Cummins said he has
just learned that the property was bought in February. The
road supervisors took their trip in April to inspect the roads.
From April on, until the E & M bill came to the township, no
one knew at all what the plan was for the culvert. The only
thing this could have done was stop water from running onto
property that Tom Vickery had sold to Universal. Mr. Vickery
said he still owned the property at that time. Mr. Cummins said
that he owned, with the intention to sell it to Universal Well
Services. Mr. Cummins said that in all the meetings from
January until now, there is not one mention of Universal Well
Services in any minutes. He found this curious. Mr. Cummins
stressed that he does not want anyone to be lead to believe
that the culvert is in the disrepair that Mr. Vickery says it is.
Mr. Cummins said that it clearly is not in his estimation as well
as Cary Frigo, Steve Mascho and Al Vanderpoel. Mr.
Vickery 06 -065
Page 26
q.
Vanderpoel said there is definitely a depression on the north
berm of the road. Mr. Vanderpoel said he did not know what
the consequence of pipe is, but there is definitely a depression
on the north berm indicating some problem. Mr. Vanderpoel
said water is flowing freely through the pipe, but cannot verify
one way or another what the inside condition of the pipe is at
this time. Mr. Vanderpoel said he looked at the outlet, but not
through it, it's only a 15" pipe. Mr. Cummins asked Mr.
Vanderpoel when he completed the application for the permit if
he based the information on information given to him by Tom
Vickery. Mr. Vanderpoel said yes. Mr. Vickery asked if he
delivered all the paperwork done for this transaction to him
personally or to the township building. Mr. Vanderpoel said he
delivered it to the township. Mr. Vanderpoel said there is a
letter required that goes to the township and the county
notifying everyone that permits are being issued. Mr. Vickery
said that not everyone reads the mail that is sent to township
[sic].
(ID 14, page 59).
Don Cummins wanted to be sure he understood everything
and made the following statement. If this would have went
[sic] through, and the township would have rerouted the water
down the side of the road, you wouldn't have had to pay for the
pipe. Tom Vickery said that was an accurate statement. Mr.
Cummins said it would behoove Tom Vickery to get the water
off there, down the side of the road so it wouldn't cost you any
money. Mr. Vickery confirmed this was an accurate statement.
(ID 14, page 59).
Supervisor Cummins testified that that he believes that the following portion
of the minutes of the September 18, 2006, Regular Meeting of the Township
Board accurately sets forth commentary by Vickery at the Township Board
meeting:
Mr. Vickery said that he is the department head of the road
department, and there is a standing resolution on file that any
single supervisor heading a department can spend up to
$2,000 without any approval from anybody. Anything above
this amount requires the approval of two supervisors.
(3)
(ID 14, page 59).
r. Supervisor Cummins testified that it was at the September 18, 2006, Regular
Meeting of the Township Board that he first heard that the Property had been
purchased in February.
s. In 2006, Supervisor Cummins and his two brothers, Bob Cummins and Nick
Cummins, formed a partnership named "CBI."
t. CBI acquired a property located on High Street and Owens Way in Bradford
Township.
(1) This property, which had previously been used for the Corning
Glassware factory and office and for Bradford Electronics, is
Vickery 06 -065
Page 27
hereinafter also referred to as the "Corning /Bradford Electronics
Property."
u. In February 2006, Supervisor Cummins, who at that time was not yet a
Bradford Township Supervisor, contacted Universal Well Services to
determine if that company would be interested in acquiring the
Corning /Bradford Electronics Property from CBI.
(1) At some point, discussions between CBI and Universal Well Services
regarding the possibility of CBI selling the Corning /Bradford
Electronics Property to Universal Well Services ceased.
(2) Supervisor Cummins testified that CBI's interest in selling the
Corning /Bradford Electronics Property to Universal Well Services did
not cease from February 2006 until the day CBI "closed the deal" with
Universal Well Services. (January 30, 2008, Tr. at 65).
v. Supervisor Cummins testified that he and his partners did not harbor
animosity against Vickery because Vickery was potentially going to sell the
Property to Universal Well Services.
w. In January or February 2007, Universal Well Services purchased from CBI a
portion of the Corning /Bradford Electronics Property.
(1) Universal Well Services relocated to this site from Foster Township.
64. Steven Mascho ( "Supervisor Mascho") is a Bradford Township Supervisor, having
served in that capacity from January 2006 to the present.
a. Bradford Township is responsible for maintaining Rutherford Run Road, the
ditches at Rutherford Run Road, and the Culvert.
b. In April of 2006, Vickery, Frigo, and Supervisor Mascho conducted a road
inspection of Bradford Township roads, which included Rutherford Run
Road.
(1) The three supervisors conducted the road inspection while traveling
together in the same vehicle.
(2) During the April 2006 road inspection, Vickery did not indicate to
Supervisor Mascho that there was any problem at the Culvert site.
(3)
The supervisors drove Rutherford Run Road but did not get out of the
vehicle and inspect the Culvert or ditch at the Culvert site.
c. At an April 11, 2006, meeting of the Bradford Township Planning
Commission, Vickery proposed a minor subdivision of lands of Walters and
Mary E. Walters to himself (ID 15, pages 1 -2).
(1) This subdivision pertained to the Property.
d. Supervisor Mascho was not certain of when he first became aware of the
Permit Application.
(1) Supervisor Mascho was not certain of whether he had seen the May
6, 2006, letter to the Township that is in evidence as ID 13, page 12.
(January 30, 2008, Tr. at 108 -111, 132 -133).
Vickery 06 -065
Page 28
(2) Supervisor Mascho testified that he became aware of the Permit
Application as a result of Auteri bringing to his attention invoice(s)
from E &M Engineers, in evidence at ID 16, for work involving
Rutherford Run. (January 30, 2008, Tr. at 75 -79, 85 -89; 132 -133).
(a) The earliest of these bills was dated June 12, 2006 (ID 16,
pages 1 -2).
e. After becoming aware of the E &M Engineers invoice(s) for work involving
Rutherford Run, Supervisor Mascho went to the Culvert site during a heavy
rainfall and did not see any problem with the Culvert site.
(1) Supervisor Mascho observed a small depression in a grassy area
north of Rutherford Run Road, which depression he testified was
located at least ten feet from the roadway.
(2) While at the Culvert site, Supervisor Mascho telephoned Vanderpoel
and asked Vanderpoel what problem existed with the Culvert.
(a) Vanderpoel agreed to meet Supervisor Mascho at the Culvert
site the following day.
f. When Supervisor Mascho and Vanderpoel met at the Culvert site, they
observed the conditions at the Culvert site.
g.
Vanderpoel explained to Supervisor Mascho the Re- Routing Project that was
proposed for the Culvert site.
h. Supervisor Mascho had concerns regarding the Re- Routing Project,
including potential flooding of other properties, erosion, and the need to get
a DEP permit to clean the ditches where the water would have been re-
routed.
J.
(1) Supervisor Mascho testified that Vanderpoel told him that
Vanderpoel's meeting with Supervisor Mascho at the Culvert site was
the first time Vanderpoel had looked at the Culvert.
(2) It was Supervisor Mascho's understanding that Vanderpoel did not
see a real problem with the Culvert site.
Vickery's name was on the Permit Application paperwork, in his capacity as
a Bradford Township Supervisor.
Vickery requested the permit without the knowledge or consent of the other
Bradford Township Supervisors.
k. The Bradford Township Supervisors never took action as a board to submit
the Permit Application to DEP.
Supervisor Mascho did not authorize Vanderpoel to submit the Permit
Application.
m. Supervisor Mascho testified that replacing the Culvert in place would not
have required a DEP permit and would have taken one day of work.
Vickery 06 -065
Page 29
n. Supervisor Mascho and Supervisor Cummins sent to DEP the letter in
evidence as ID 18, page 4, withdrawing the Permit Application.
o. Supervisor Mascho testified that the Township Board paid Vanderpoel /E &M
Engineers for charges relating to the Rutherford Run catch basin because
the work was performed by Vanderpoel based upon the assumption that he
was working for Bradford Township.
p. Supervisor Mascho participated in approving the E &M Engineers invoices
that included charges designated as relating to the Rutherford Run catch
basin.
q.
Supervisor Mascho testified that the following portion of the minutes of the
September 18, 2006, Regular Meeting of the Township Board accurately
sets forth commentary by Supervisor Mascho at the Township Board
meeting:
Steve Mascho said that he and Al Vanderpoel visited the
property during a major rainstorm and it was handling the
water just fine. Mr. Mascho went on to say that the problem is
if the township were to change this, (the township has already
paid engineering fees), we could have changed the pipe on
our own without permits from the DEP. Mr. Mascho continued
by saying that if the pipe is changed, water would run down
Rutherford Run and permits would have to be issued from t he
[sic] DEP to clean the ditch every time it needed to be done.
The other concern Mr. Mascho had, was if there should be a
flood, he didn't want water to cross over High Street and down
into Bradford Forest Products. Mr. Mascho said this was the
reason for the DEP permit to be denied.
(ID 14, page 58).
r. Supervisor Mascho testified that the following portions of the minutes of the
September 18, 2006, Regular Meeting of the Township Board accurately set
forth discussion that occurred at the Township Board meeting:
(1) Don Cummins asked Mr. Kloecker to confirm what was said
earlier. There was a sales agreement and if the DEP would
not approve the change of the culvert, Chairman Vickery would
replace it at his own expense? Mr. Kloecker said this was
correct. Mr. Cummins asked under whose authority. Mr.
Kloecker elaborated by saying that there is a catch basin on
the upper side of the road and the water that comes off of the
hillside runs into a pipe into the catch basin which runs under
the road and empties out onto Universal's property. If this
needs to be extended over to the creek, Mr. Vickery said he
would do that at his expense.
(ID 14, page 58).
(2) Don Cummins wanted to be sure he understood everything
and made the following statement. If this would have went
[sic] through, and the township would have rerouted the water
down the side of the road, you wouldn't have had to pay for the
pipe. Tom Vickery said that was an accurate statement. Mr.
Cummins said it would behoove Tom Vickery to get the water
Vickery 06 -065
Page 30
off there, down the side of the road so it wouldn't cost you any
money. Mr. Vickery confirmed this was an accurate statement.
(ID 14, page 59).
s. Supervisor Mascho testified that the following portion of the minutes of the
September 18, 2006, Regular Meeting of the Township Board accurately
sets forth commentary by Vickery at the Township Board meeting:
Mr. Vickery said that he is the department head of the road
department, and there is a standing resolution on file that any
single supervisor heading a department can spend up to
$2,000 without any approval from anybody. Anything above
this amount requires the approval of two supervisors.
(ID 14, page 59).
t. No work has been done on the catch basin or the Culvert at the Culvert site.
u. Supervisor Mascho testified that there has not been any problem evidenced
at the catch basin or Culvert at the Culvert site of which he is aware.
v. Supervisor Mascho testified that while Bradford Township Resolution 88 -7
was in effect, Bradford Township supervisors could incur expenses on a
discretionary basis pursuant to such Resolution, without the knowledge and
consent of the other supervisors.
(1) The Resolution did not permit supervisors to purchase items for
personal purposes.
(2) The Resolution did not expressly mention the purchase of
professional services.
The Resolution did not mention submitting an application to DEP to
re -route a waterway.
w. After Supervisor Cummins commenced service on the Township Board,
Bradford Township Resolution 88 -7 became ineffective when the Township
Board passed a subsequent resolution.
(3)
65. Michael F. Kloecker ( "Kloecker ") is employed by Universal Well Services, Inc.
( "UWS ") as the manager of corporate development.
a. Kloecker first became acquainted with Vickery on March 1, 2006, at a
Special Meeting of the Foster Township Board of Supervisors.
(1) The minutes of the meeting are in evidence as ID 9, page 1 -2.
(2) The purpose of the meeting was to allow the neighbors near UWS's
Foster Township facility to publicly voice complaints about operations
at the facility.
Kloecker testified that to his recollection, the following portion of the
minutes of the March 1, 2006, Special Meeting of the Foster
Township Board of Supervisors accurately sets forth commentary by
Vickery at the meeting:
(3)
Vickery 06 -065
Page 31
g.
Tom Vickery, Bradford Township Supervisor, suggested
the Universal Well Service representatives examine the
old Corning building on Owens Way as a possible site
to relocate.
(ID 9, page 2).
(4) Following the meeting, Vickery introduced himself to UWS
representatives as a Bradford Township Supervisor, and indicated
that there were locations in Bradford Township that were suitable for
UWS operations.
b. ID 12, pages 2 -5 consist of a chronology of events prepared by Kloecker
relating to UWS's purchase of the Property from Vickery.
c. On March 14, 2006, Kloecker looked at properties in Bradford Township with
Vickery.
d. After looking at numerous properties, there were two properties that UWS
representatives considered to be viable options for UWS, specifically, the
Property and the Corning /Bradford Electronics Property.
(1) After walking through the Corning /Bradford Electronics Property, the
UWS representatives felt that it would not be acceptable.
(2) UWS representatives were aware that Walters owned the Property.
(3) In April 2006, Vickery informed UWS representatives that he had an
agreement with Walters to sell the Property for him.
e. The Property had several delineated wetlands.
f. There were only two course of water flowing across the Property that were of
concern to UWS as having some bearing on the proposed site development
that UWS wanted to pursue, specifically, Rutherford Run Creek and the
Existing Waterway. (January 30, 2008, Tr. at 200 -203).
(1) The ditch along the western boundary of the Property /east side of
High Street was of no concern to UWS and never entered into
discussion.
In April 2006, there were discussions between UWS representatives and
Vickery regarding the possibility of encasing Rutherford Run Creek at the
Property.
h. The Existing Waterway was of concern to UWS because DEP approval
would be required to either sluice it or eliminate it.
On May 1, 2006, UWS representatives attended a meeting with DEP and
Vickery regarding the Property.
(1) The issue of obtaining a DEP permit to re -route the water in the
Existing Waterway was discussed at this meeting.
(2) Vickery informed UWS representatives that the permit application for
re- routing the water coming through the Existing Waterway was being
taken care of by Bradford Township.
Vickery 06 -065
Page 32
j. On May 12, 2006, UWS received a draft sales agreement for the Property
from Vickery through Vickery's attorney, Gregory A. Henry, which draft sales
agreement is in evidence as ID 12, pages 59 -65.
k. On May 16, 2006, Kloecker met with Ed Orris of DEP regarding DEP
requirements and UWS's plans for the Property.
On May 22, 2006, Kloecker faxed to Vickery the memorandum that is in
evidence as ID 17, page 2.
(1) This memorandum stated, in part:
Any sales contract that we sign must include language
indicating that no money will transfer until after a
meeting with you, Universal Well Services, and the
DEP during which we are assured that the permit
application is correct. As we go forward, we want to
make clear what the essence of the deal is from
Universal's standpoint. UWS needs to have enough
usable acreage on the parcel to place its building,
associated structures, parking, and have efficient traffic
flow. Of course, that requires that we have the permits
necessary to allow Universal to have this amount of
usable land. That is why obtaining the necessary
permits is a prerequisite to taking title to this property.
(ID 17, page 2).
(2) One of the "necessary permits" to which this memorandum referred
was a permit to re -route the water coming under Rutherford Run
Road and onto the Property through the Existing Waterway.
m. On May 23, 2006, a telephone conversation occurred which included Vickery
and Kloecker.
(1) Kloecker's chronology includes the following entry as to this
telephone conversation:
Vickery (phone call) informs Kloecker & Bratigam that
he has decided not to develop the property, but rather
is `buying it and flipping it'. He is concerned about
UWS `changing our minds' and that there are too many
unknowns.
A sales agreement is discussed. This would have to
include language about Bradford Township relocating
the culvert underneath Rutherford Run Road. Vickery
again stresses that we need to make a decision soon.
(ID 12, page 4).
(2) The reference to relocating the culvert underneath Rutherford Run
Road pertained to the Re- Routing Project.
Vickery 06 -065
Page 33
n. The re- routing of the water at the Culvert site was an essential element of
the contract that UWS wanted, because UWS could not fill over the top of
the Existing Waterway if it remained there.
o. If the Permit Application had been approved and the Re- Routing Project
would have occurred, the Existing Waterway would no longer have existed.
On May 25, 2006, UWS received a Sales Agreement from Vickery for the
Property.
(1) This Sales Agreement is in evidence as ID 12, pages 14 -16.
(2) The purchase price of the Property was $150,000.
P.
q.
Kloecker testified that Paragraph 7 (c) of the Sales Agreement
provided that if DEP did not approve Bradford Township's application
to abandon the culvert and re -route it, then Vickery would bear the
expense of sluicing the Existing Waterway down to Rutherford Run
Creek. (January 30, 2008, Tr. at 175).
(a) Kloecker did not draft Paragraph 7 (c) of the Sales Agreement
but stated that he was involved with discussing the intent or
purpose of that language.
(b) Although Paragraph 7 (c) of the Sales Agreement referenced
the Seller's application to DEP for the re- routing of the ditch
along Rutherford Run, Kloecker testified that it was actually
referring to Bradford Township's Permit Application.
(c) Kloecker testified that it was his interpretation of this
paragraph that because the water was not re- routed from the
Culvert, and was going to flow in its original course called the
"Existing Waterway," Vickery was obligated to sluice the
Existing Waterway.
(4) Kloecker testified that if the Permit Application had been approved,
Paragraph 7 (c) of the Sales Agreement would not have become
operative.
UWS undertook the permitting for whatever it would decide to do in
relation to Rutherford Run Creek.
(3)
(5)
On May 26, 2006, UWS representatives including Kloecker telephoned
Vickery and verbally agreed to the price for the Property.
r. On July 7, 2006, the closing for the sale of the Property from Vickery d /b /a
Vickery Enterprises to UWS occurred.
(1) The difference between the price of the Property paid by UWS to
Vickery ($150,000) and the price of the Property paid by Vickery to
Walters ($75,000) was $75,000.
s. On September 12, 2006, Kloecker learned that Bradford Township had
withdrawn the Permit Application.
t. Kloecker attended the September 18, 2006, Regular Meeting of the
Township Board.
Vickery 06 -065
Page 34
u. Kloecker testified that that to the best of his recollection, the following portion
of the minutes of the September 18, 2006, Regular Meeting of the Township
Board accurately sets forth commentary by Kloecker at the Township Board
meeting:
Mike Kloecker representing Universal Well Services
announced that Universal purchased property at the corner of
Rutherford Run and High Street. Mr. Kloecker said Universal
was told in numerous conversations that they were purchasing
the property from Tom Vickery. Mr. Kloecker said that Mr.
Vickery informed them that the culvert running under
Rutherford Run Road was not going to be an issue with them
developing the property. Mr. Vickery said this was correct.
Mr. Kloecker said he was told Bradford Township was going to
remove the culvert because the culvert was in need of repair.
Universal Well Services was uncomfortable with the DEP
application process. Mr. Kloecker went on to say that the
language in their sales contract states that if the DEP
application is denied that Tom Vickery will pay for putting in
the culvert. Mr. Kloecker said Universal was informed last
week the DEP permit application was withdrawn by Bradford
Township. Mr. Kloecker shared his conversation he had
earlier with Steve Mascho and was told there was nothing
wrong with the culvert. Mr. Kloecker said Mr. Mascho didn't
have any knowledge of the DEP application being submitted
back in June /July. Mr. Kloecker said he was curious as to how
a DEP permit application can be submitted by a township
without everyone on board and having knowledge of it
particularly when the application involved engineering work
that was to be paid to E & M Engineering.
(ID 14, page 56).
v. Kloecker testified that the following portions of the minutes of the September
18, 2006, Regular Meeting of the Township Board accurately set forth
discussion that occurred at the Township Board meeting:
(1) Mr. Vickery said that he bought the property in February and
chose to record it in July.
(ID 14, page 58).
(2) Don Cummins asked Mr. Kloecker to confirm what was said
earlier. There was a sales agreement and if the DEP would
not approve the change of the culvert, Chairman Vickery would
replace it at his own expense? Mr. Kloecker said this was
correct. Mr. Cummins asked under whose authority. Mr.
Kloecker elaborated by saying that there is a catch basin on
the upper side of the road and the water that comes off of the
hillside runs into a pipe into the catch basin which runs under
the road and empties out onto Universal's property. If this
needs to be extended over to the creek, Mr. Vickery said he
would do that at his expense.
(ID 14, page 58).
Vickery 06 -065
Page 35
w. Kloecker remembers Vickery stating at the September 18, 2006, Regular
Meeting of the Township Board that he (Vickery) bought the Property in
February and chose to record it in July. (ID 14, page 58).
(1) Kloecker testified that this statement by Vickery that he (Vickery)
bought the Property in February and chose to record it in July was not
a true statement.
x. Bradford Township's withdrawal of the Permit Application resulted in UWS's
own permit application to DEP having to be greater in scope to address the
sluicing of the Existing Waterway.
ID 12, pages 49 -56 consist of a letter from Kloecker to Vickery dated April
30, 2007, enclosing bid specifications and two bids that Kloecker had
received from other area contractors for sluicing the Existing Waterway.
(1) The letter stated that UWS had received "verbal permit approval" from
DEP and the McKean County Conservation District on UWS's
application to extend the culvert running beneath Rutherford Run
Road approximately 92 feet to the south and to fill the property.
(2) The letter requested that Vickery inform Kloecker as to whether
Vickery wanted to do the work himself per the specifications or
reimburse UWS for the low bid amount.
y.
z. In June 2007, DEP issued to UWS Permit No. E42 -325, which permit
permitted UWS to, inter alia, "Construct and maintain a 92 -foot long, 15 -inch
diameter culvert in a tributary to Rutherford Run having a contributory
drainage area of less than 100 acres." (Respondent's Exhibit M).
aa. Vickery sluiced the Existing Waterway.
bb. UWS has not built on the Property.
cc. Ultimately, UWS purchased from CBI a portion of the Corning /Bradford
Electronics Property for $645,000.
66. Edward Orris ( "Orris ") is employed by DEP as a "senior civil engineer, hydraulic" in
DEP's Northwest Regional Office in Meadville, Pennsylvania.
a. Patrick Williams is the Section Chief of the Permits and Technical Services
Section within the watershed management program of the DEP Northwest
Regional Office.
(1) Patrick Williams is Orris' supervisor.
b. Orris served as the DEP reviewer on the Permit Application.
(1) DEP assigned application number E42 -322 to the Permit Application.
c. It was on April 26, 2006, that Orris first became aware of the possibility that
the Permit Application might be filed.
(1) Orris met Vickery regarding a site unrelated to this matter.
(2) Vickery identified himself as a Bradford Township Supervisor.
Vickery 06 -065
Page 36
Vickery asked Orris to also look at the Property.
Orris and Vickery went to the Property.
Vickery asked Orris about the permitting requirements that would be
needed to allow UWS to develop the Property.
(6) While at the Property, Vickery also inquired as to whether permits
would be required to block the Culvert and re -route the Existing
Waterway.
Vickery told Orris that Bradford Township had maintenance issue(s)
with the Culvert, and that it would be better to block off the Culvert
than deal with the maintenance issue(s).
(8) Orris has no recollection of Vanderpoel being present with Orris and
Vickery on April 26, 2006, at Rutherford Run Road.
d. The Existing Waterway is a regulated watercourse within DEP regulations.
e. The Re- Routing Project would have cut off the flow of water to the Existing
Waterway, drying up the Existing Waterway.
f. The Re- Routing Project would have required a joint permit for water
obstructions and encroachments.
g.
(3)
(4)
(5)
(7)
(1) Ajoint permit may require review both by DEP and by the Army Corps
of Engineers.
(2) The permitting process for re- routing water is an involved process.
ID 13, page 99 is a letter dated August 21, 2006, from Patrick Williams to
Kloecker.
(1) Orris testified that the following portion of this letter accurately states
what occurred on April 26, 2006:
On April 26, 2006, DEP Engineer Edward Orris and Mr.
Vickery met at the site and discussed relevant
permitting requirements. On the same day, Mr. Orris
and Mr. Vickery discussed permitting requirements for
diverting a Rutherford Run tributary that runs through
the property. Mr. Vickery indicated that the tributary
would be diverted to the roadside ditch along
Rutherford Run Road and High Street.
(ID 13, page 99).
h. Orris participated in a May 1, 2006, pre - application meeting regarding
development of the Property.
(1) Vickery was present at this meeting.
(2) UWS representatives were present at this meeting.
(3) Orris did not recall the issue of re- routing the Existing Waterway
being discussed at this meeting.
Vickery 06 -065
Page 37
ID 18, pages 79 -82 consist of a fax dated May 4, 2006, which Orris received
from Vanderpoel, inquiring as to the permitting requirements for the
proposed Re- Routing Project.
j. The Permit Application was submitted to DEP under a transmittal letter dated
May 11, 2006, from Vanderpoel to Orris, which letter is in evidence as ID 18,
page 46.
k. The Permit Application included the documents in evidence as ID 18, pages
47 -78.
I. The letters in evidence as ID 18, pages 61 and 63 constitute required
notices from the applicant of the Permit Application to Bradford Township
and McKean County.
(1) The contact person for the applicant is identified as Vickery.
m. The portion of the Permit Application that is at ID 18, pages 75 -77 is referred
to as the "application form."
n. The application form must be signed by someone representing the applicant.
o. Because the Permit Application was submitted to DEP in the name of
Bradford Township, there was no filing fee.
(1) Such filing fees are waived for political subdivisions of the
Commonwealth of Pennsylvania.
If an individual or corporation had submitted the Permit Application to DEP,
the filing fee would have been $300, which is the fee for "channel changes."
(ID 18, page 76).
(1) An individual could have submitted the Permit Application, even
though the Re- Routing Project involved bypassing the Culvert and re-
routing water along a Bradford Township road.
(2) If an individual had submitted the Permit Application, DEP would have
wanted assurance that the individual had permission to do the
proposed project.
DEP issued to Vickery an "administratively incomplete letter" dated May 22,
2006, which letter is in evidence as ID 18, pages 41 -42, requesting
additional information required for processing the Permit Application.
r. In response to DEP's "administratively incomplete letter," Vanderpoel
submitted to DEP a letter dated May 24, 2006, which is in evidence as ID 18,
pages 31 -32, and the documents DEP had requested for processing the
Permit Application.
s. DEP issued a letter dated June 2, 2006, to Vickery, indicating that the Permit
Application was administratively complete and would be processed for
"technical review," which letter is in evidence as ID 18, pages 11 -11A.
t. The Army Corps of Engineers issued a letter dated July 27, 2006, to Vickery,
indicating its authorization of the Re- Routing Project, which letter is in
evidence as ID 18, pages 8 -9.
p.
q.
Vickery 06 -065
Page 38
u. DEP issued a "technical deficiency letter" dated August 24, 2006, to Vickery,
raising technical deficiency issues with the Permit Application that would
have to be resolved before a permit could be issued.
(1) This letter is in evidence as ID 18, pages 7 -7A.
v. DEP ceased processing the Permit Application in September 2006.
(1) DEP received from Supervisor Cummins and Supervisor Mascho a
faxed transmission and signed letter dated August 31, 2006,
requesting that DEP discontinue processing the Permit Application,
which communications are in evidence as ID 18, pages 4 -6.
(2) DEP issued a letter dated September 8, 2006, to Supervisor Cummins
and Supervisor Mascho, indicating that the Permit Application was
considered withdrawn and the DEP file was closed, which letter is in
evidence as ID 18, page 3.
w. If the Re- Routing Project had been accomplished, the existing ditches north
of Rutherford Run Road and along the east side of High Street would have
been changed from ditches into regulated water courses that would have
been subject to DEP requirements, including requirements for obtaining
permits to clean the ditches.
(1) In their current condition, such ditches are considered stormwater
facilities and do not require permits for maintenance.
x. Replacing the Culvert in place would not have required a DEP permit but
would have required authorization from the Army Corps of Engineers.
67. Respondent Thomas Vickery ( "Vickery ") is a former Bradford Township Supervisor.
a. Vickery was elected to the office of Bradford Township Supervisor in 2001
and served a six -year term until January 2008.
b. In his private capacity, Vickery develops real estate.
c. Vickery testified that the function he attended in Foster Township in 2006
was an open house, not a meeting, and that he believed it occurred earlier in
2006 than March.
(1) Vickery testified that he did not introduce himself as a Bradford
Township Supervisor at this event.
(2) Vickery suggested the Corning /Bradford Electronics Property as an
example of a potential site to which UWS could relocate.
At the close of this event, Vickery spoke with Richard Remington,
President of UWS.
(3)
(4) Vickery cited the following entry for February 2006 in Kloecker's
chronology of events in support of his belief that this function
occurred prior to February 2006: "Frank Covine contacts Cummins
construction with general questions about the former Bradford
Electronics building." (ID 12, page 2).
Vickery 06 -065
Page 39
d. Vickery testified that two or three weeks after he introduced himself to
Richard Remington, he contacted Richard Remington and discussed with
him the requirements of UWS for a suitable location.
e. Following Vickery's contact with Richard Remington, Vickery entered into
active negotiations with Walters to purchase the Property.
f. On April 11, 2006, Vickery was actively involved in discussions with Walters
regarding the purchase of the Property. (ID 15, page 2).
g.
Vickery and Walters reached an understanding that Vickery would purchase
the Property from Walters for $75,000.
h. Vickery testified that although he prepared a portion of the written agreement
that is in evidence as ID 10, page 1 for Walters to sign, Walters declined to
sign the agreement and stated that the understanding would have to be
verbal.
J.
(1) This Agreement bears signatures of Walters and Mary E. Walters.
(2) Vickery testified that the Agreement was never returned to him.
When Vickery contacted State Representative Causer to discuss whether
certain DEP permits that Walters had were still valid.
Vickery testified as to UWS's goal for permits for the Property as follows:
But in general, what their goal was to do was to encase every and all water
courses on that road and to fill that - -- or on that road, on that parcel of
ground, and to fill that parcel of ground so that it was basically level with
Rutherford Run, High Street and the continuing property as it went to the
east." (January 31, 2008, Tr. at 21).
k. It is the responsibility of Bradford Township to maintain Rutherford Run
Road, the Culvert, the existing ditch along the north side of Rutherford Run
Road, and the existing ditch along the east side of High Street and the
western border of the Property.
The Culvert, the existing ditch along the north side of Rutherford Run Road,
and the existing ditch along the east side of High Street and the western
border of the Property are within the Township right -of -way.
m. In 2006, Vickery served as the Bradford Township Superintendent of Roads.
(1) As Bradford Township Superintendent of Roads, Vickery was the
head of the Bradford Township Road Department.
(2) Vickery testified that as Superintendent of the Roads, it was his sole
obligation to make decisions about repairs or corrections to issues
dealing with the roads themselves.
n. Vickery testified that he was not aware of the condition of the Culvert at the
time of the April 2006 roadway inspection.
o. Vickery testified that he discovered issues with the Culvert in late April
2006, after the roadway inspection and a few days prior to meeting with Orris
of DEP regarding another site.
Vickery 06 -065
Page 40
P.
q.
(1) Vickery testified that at this point in time, he already had a verbal
agreement with Walters to buy the Property.
(2) Vickery testified that he discovered issues with the Culvert while
shooting elevations at the Property.
Vickery testified that he observed that the ground around the box
culvert was eroded and sunk, that there were indentations in the
ground on the north side of Rutherford Run Road and between the
box culvert and ditch line, and that the concrete in the Culvert was
separating at the joints.
(4) Vickery testified that the condition of the Culvert was such that it did
not require immediate repair (January 31, 2008, Tr. at 76, 79 -80), but
that it needed a repair or correction to avoid continued deterioration,
more extensive repairs, and potential liabilities. (January 31, 2008,
Tr. at 78).
Vickery testified that action was taken within one week of the time he stated
he discovered issues with the Culvert because permits require time, and
because Orris of DEP came to the area on another matter.
(3)
Vickery testified that a few days after he had discovered issues with the
Culvert, he received a telephone call from Orris regarding a complaint
involving an unrelated site.
r. On or about April 26, 2006, Vickery met with Orris at the other site.
(1) While at the other site, Vickery asked Orris to go to the Property and
look at it.
(2) Vickery testified that he telephoned Vanderpoel, and that Vanderpoel
met Vickery and Orris at the Property.
Vickery testified that Vanderpoel looked at the Culvert that day.
(3)
s. Vickery testified that while at the Property with Orris on or about April 26,
2006, he, Orris, and Vanderpoel discussed alternatives for the Culvert issue.
(1) Vickery testified that there were two suggestions that were discussed,
specifically, to dig up the Culvert and reinstall or reconnect, or to take
another course of action for direction of the water.
(a) Vickery testified that these suggestions came from Vanderpoel.
(2) Vickery testified that there was a discussion about which of the two
suggestions would be the most economical solution to pursue.
(a) Vickery testified that in physical manpower, it would be most
economical to redirect the course of the water.
(3)
Vickery could not explain why Vanderpoel's May 4, 2006, fax to Orris
was worded as follows if Vanderpoel was present at the April 26,
2006, meeting of Vickery and Orris: "Ed: Could you tell us what
permit is needed to accomplish the following work for Bradford
Township, McKean County." (ID 13, page 2) (January 31, 2008, Tr.
at 95).
Vickery 06 -065
Page 41
(4) Vickery testified that Vanderpoel directed the course of action to take.
(January 31, 2008, Tr. at 155).
t. Vickery testified that while at the Property with Orris on or about April 26,
2006, he and Orris also discussed permitting requirements for the
development of the Property for UWS.
u. Vickery did not meet with Vanderpoel at the Culvert site more than once.
v. Vickery attended the May 1, 2006, meeting with DEP and UWS
representatives.
(1) Vickery's testimony as to this meeting was evasive. (January 31,
2008, Tr. at 91 -93).
(2) At this meeting, DEP raised the issue of the allegedly blocked Culvert
as a concern as to UWS's development plans.
At this meeting, Vickery told the representatives who were in
attendance that Bradford Township was going to eliminate the
Culvert.
(3)
(a) Vickery testified, That was our intent." (January 31, 2008, Tr.
at 92 -93).
w. Vickery testified that the recommendation at ID 13, page 3 (part of the May
4, 2006, faxed transmission from Vanderpoel to Orris), that the most
economical solution to issues with the condition of the Culvert was to plug
the Culvert and route the storm water in the existing ditch along Rutherford
Run Road, was Vanderpoel's recommendation.
x. Vickery testified that based upon his discussions with Vanderpoel, his
knowledge of Bradford Township Resolution 88 -7, and the potential dollar
amount involved, he (Vickery) believed that he had authority to take action
on behalf of Bradford Township to correct the issues with the Culvert without
consulting with the other supervisors.
(1) Vickery testified that applying for a DEP permit by filing a permit
application was purchasing Vanderpoel's services to prepare the
documents for the Permit Application. (January 31, 2008, Tr. at 109,
159 -161).
y. Vickery instructed Vanderpoel to proceed with the permit process for the Re-
Routing Project. (January 31, 2008, Tr. at 44).
z. The Permit Application for the Re- Routing Project was submitted to DEP by
Vanderpoel under cover letter dated May 11, 2006. (ID 13, page 8).
aa. Vickery did not make any report /presentation about the Permit Application at
either the May 15, 2006, or June 19, 2006, Regular Meetings of the
Township Board.
bb. Vickery testified that he did not attempt to conceal from the other Bradford
Township supervisors the fact that he had taken action on behalf of the
Township to submit the Permit Application in the name of the Township.
Vickery 06 -065
Page 42
cc. Vickery testified that he was listed as the contact person for the Permit
Application due to his status as Chairman of the Township Board.
dd. The Bradford Township building address was listed on the Permit
Application as the contact's address.
ee. Vickery testified that as certified mail, the notice letter to Bradford Township
regarding the filing of the Permit Application (ID 13, page 12) would have
been placed on the table where it would have been accessible to the other
supervisors.
ff. Vickery testified that any correspondence concerning the submission of the
Permit Application was accessible to the other supervisors.
Vickery testified that in Paragraph 7 (c) of the Sales Agreement between
Vickery d /b /a Vickery Enterprises and UWS (ID 12, page 15), the reference
to "Seller" was erroneous and should have been to the Township, and the
word "re- route" should have been "routed" or "route." (January 31, 2008, Tr.
at 49, 115).
hh. Vickery testified that his understanding of the intent of Paragraph 7 (c) of the
Sales Agreement between Vickery d /b /a Vickery Enterprises and UWS (ID
12, pages 14 -16) was that whatever water course the water in the Existing
Waterway was going to take, it was going to be Vickery's obligation to sluice
the water course across the Property to Rutherford Run Creek at UWS's
request and to its specifications. (January 31, 2008, Tr. at 50).
(1) Vickery testified that if the water course of the Existing Waterway
remained in place, he would have to sluice the Existing Waterway.
(January 31, 2008, Tr. at 50).
(2) Vickery testified that if the Permit Application was approved, and the
water course of the Existing Waterway was re- routed through the
existing ditches north of Rutherford Run Road and east of High Street
along the western boundary of the Property, he would have
considered it his obligation to sluice the ditch on the western
boundary of the Property. (January 31, 2008, Tr. at 50, 52 -53).
Vickery testified that UWS could have required him to sluice both the
Existing Waterway and the ditch along the western boundary of the
Property:
gg.
(3)
(January 31, 2008, Tr. at 113).
(4) Vickery testified that his understanding as to his obligations under
Paragraph 7 (c) were based upon his understanding with the buyer.
(January 31, 2008, Tr. at 117).
Vickery acknowledged that Paragraph 7 (c) says nothing about
Vickery having to sluice the ditch along the western border of the
Property if the Permit Application would be approved. (January 31,
2008, Tr. at 117 -118).
(5)
I would have had to have sluiced whichever ditch Universal
requested me to after their permitting process had been
approved. It could have been one or two.
Vickery 06 -065
Page 43
ii. Vickery testified that the Re- Routing Project would have been a financial
detriment to him as compared to sluicing the Existing Waterway.
(1) Vickery testified that if the Permit Application had been approved and
the Re- Routing Project had been done, it would have cost Vickery
more to sluice the ditch along the western border of the Property than
to sluice the Existing Waterway.
(2) Vickery testified that the pipe required to sluice the ditch along the
western border of the Property would have been of greater length and
greater diameter than the pipe used to sluice the Existing Waterway.
(See, ID 12, page 21; ID 18, page 31).
Vickery's testimony that the Re- Routing Project would have been a financial
detriment to him as compared to sluicing the Existing Waterway was
contradicted by his testimony that UWS could have required him to sluice
both the Existing Waterway and the ditch along the western boundary of the
Property.
After the Permit Application was withdrawn, UWS obtained a DEP permit for
the construction of a 92- foot -long, 15 -inch diameter culvert in the Existing
Waterway.
Vickery sluiced the Existing Waterway himself.
In 2006, Gregory Henry, Esquire (also referred to herein as "Attorney
Henry ") was the Bradford Township Solicitor (ID 14, page 3).
Attorney Henry represented Vickery in the negotiation of the agreement with
UWS and the ultimate sale and transfer of the Property.
(1) Attorney Henry drafted the Sales Agreement between Vickery d /b /a
Vickery Enterprises and UWS. (ID 12, pages 14 -16).
oo. Vickery testified that the in the discussion reflected in the following portion of
the minutes of the September 18, 2006, Regular Meeting of the Township
Board, Vickery was speaking of Bradford Township's obligation, not his own
personal obligation:
Don Cummins wanted to be sure he understood everything
and made the following statement. If this would have went
[sic] through, and the township would have rerouted the water
down the side of the road, you wouldn't have had to pay for the
pipe. Tom Vickery said that was an accurate statement. Mr.
Cummins said it would behoove Tom Vickery to get the water
off there, down the side of the road so it wouldn't cost you any
money. Mr. Vickery confirmed this was an accurate statement.
(ID 14, page 59).
(1) Vickery stated that he had understood the conversation to be
referring to the Township not having to purchase pipe to replace the
Culvert if the water had been re- routed.
kk.
mm.
nn.
(2) Vickery testified that it is a habit of his to use the word "I" instead of
we.
Vickery 06 -065
Page 44
pp.
Vickery testified that he disagrees with the minutes of the September 18,
2006, Regular Meeting of the Township Board.
rr. Respondent's Exhibit 0 consists of eleven photographs taken in late January
2008 of the box culvert and surrounding ground; the existing ditch north of
Rutherford Run Road; crossings where Rutherford Run Road and High
Street intersect; and the existing ditch along the east side of High Street
along the western boundary of the Property; together with a drawing of the
Property designating the positions the photographs represent.
qq .
Vickery testified that Auteri, Supervisor Cummins, Supervisor Mascho, and
Kloecker are liars. (January 31, 2008, Tr. at 140 -141).
68. Gregory A. Henry, Esquire ( "Attorney Henry ") served as Bradford Township Solicitor
in 2006.
a. CBI, LLC is also known as "Cummins Brothers Industries."
b. Attorney Henry represented Vickery during the negotiation of a sales
agreement and the ultimate sale and transfer of the Property to UWS.
c. In the Sales Agreement between Vickery d /b /a Vickery Enterprises and UWS
(ID 12, pages 14 -16), the reference in Paragraph 7 (c) to the term "Seller"
was incorrect and should instead have referred to the fact that the Permit
Application was submitted by Bradford Township.
(1) Attorney Henry was not familiar with the Permit Application and did
not know the identity of the applicant.
d. Attorney Henry testified that the language of Paragraph 7 (c) of the Sales
Agreement between Vickery d /b /a Vickery Enterprises and UWS (ID 12,
page 15) did not make the granting of the Permit Application a condition
precedent of the deal.
e. Attorney Henry testified that his reading of the language of Paragraph 7 (c)
of the Sales Agreement between Vickery d /b /a Vickery Enterprises and UWS
(ID 12, page 15) was that the denial of the Permit Application in and of itself
would obligate Mr. Vickery to do nothing, and that in order for a duty to arise
for Vickery, the Permit Application would have to be denied and it would also
have to be necessary to re -route the water that was running through the
Existing Waterway. (January 31, 2008, Tr. at 188 -189).
f. Attorney Henry testified that the contingency of a withdrawal of the Permit
Application was not addressed by Paragraph 7 (c) of the Sales Agreement
between Vickery d /b /a Vickery Enterprises and UWS (ID 12, page 15).
Attorney Henry testified that it was his opinion that pursuant to Bradford
Township Resolution 88 -7, Vickery had authority to incur professional
services of Vanderpoel for a matter related to Vickery's duties in the Road
Department if the amount of such services was less than $2,000.
h. Attorney Henry testified that Supervisor Cummins has animosity aganist
Vickery, primarily due to an impression that by enticing UWS to purchase the
Property, Vickery took the deal, or a larger deal, away from CBI.
g.
Attorney Henry testified that Supervisor Mascho has animosity against
Vickery, due to an impression that while Supervisor Mascho and Vickery
Vickery 06 -065
Page 45
J.
served on the Township Board together, Vickery was a know -it -all who would
tell Supervisor Mascho what to do and would push Supervisor Mascho
around.
In 2006, Attorney Henry did not give Vickery any written advice on any ethics
issue under the Ethics Act.
C. Documents
69. ID 9, pages 1 -3 consist of a certified copy of the minutes of the March 1, 2006,
Special Meeting of the Foster Township Board of Supervisors.
a. The minutes provide that the purpose of the meeting was to discuss zoning
issues related to the UWS operation on Olean Road.
b. The minutes include the following: "Tom Vickery, Bradford Township
Supervisor, suggested the Universal Well Service representatives examine
the old Corning building on Owens Way as a possible site to relocate." (ID
9, page 2).
70. ID 10, page 1 is a partially executed document entitled "Agreement of
Understanding for Real Estate Transaction," which pertains to the sale of the
Property by the Walters to Vickery.
a. This Agreement bears signatures for Walters and his wife, Mary E. Walters.
b. The copy of this Agreement which is in evidence does not bear the signature
of Vickery.
71. ID 11, pages 1 -5 consist of a certification page and a copy of a deed dated July 7,
2006, by which Vickery d /b /a Vickery Enterprises conveyed the Property to UWS.
a. This deed was recorded with the McKean County Recorder of Deeds on July
7, 2006, at 11:36:37 a.m. (ID 11, page 1).
72. ID 11, pages 6 -11, consist of a certification page and a copy of a deed dated June
8, 2006, by which Walters, his wife, "Mary E. Walters," and his son, "James M.
Walters," conveyed the Property to Vickery d /b /a Vickery Enterprises.
a. This deed was recorded in the McKean County Recorder of Deeds Office on
July 7, 2006, at 11:23:16 a.m. (ID 11, page 6).
73. ID 12, pages 2 -5 consists of a chronology of events prepared by Kloecker relating
to UWS's purchase of the Property from Vickery.
a. On May 1, 2006, UWS representatives attended a meeting with Vickery and
DEP representatives regarding the Property.
(1) The issue of obtaining a DEP permit to re -route the water at the
Culvert site was discussed at this meeting.
(2) Kloecker's chronology includes the following entry for this meeting:
DEP raised the issue of the runoff from the culvert
under Rutherford Run Road. Vickery stated that this is
already being addressed by Bradford Township and
that he would shortly be eliminating the culvert and
Vickery 06 -065
Page 46
running the draining down the other side of the road.
This was a `done deal'.
(ID 12, page 3).
74. ID 12, pages 7 -10 consist of an Agreement dated June 8, 2006, between Walters
and Mary E. Walters and Vickery d /b /a Vickery Enterprises whereby the Walters
agreed to facilitate the mitigation and relocation, by Vickery or any of his assigns, of
any wetlands existing on Tax Parcel 17 -05 -204.
a. The Agreement permitted the relocation of wetlands from Tax Parcel 17 -05-
204 onto Tax Parcel 17- 005 -203.3 owned by Walters.
b. This Agreement was signed by Walters, Mary E. Walters, and Vickery.
75. ID 12, pages 14 -16 consist of a copy of the Sales Agreement between Vickery d /b /a
Vickery Enterprises and UWS for the sale of the Property to UWS.
a. The price of the Property was $150,000.
b. Paragraph 7 of the Sales Agreement provided, in part:
7. This Agreement is contingent upon the following:
(c) That if Seller's application to DEP for the re-
routing of the ditch along Rutherford Run is denied, and it is
necessary to re -route the water running through said ditch
across the subject parcel, Seller will, at his own expense, in
accordance with specifications acceptable to Buyer, and in a
time frame which will not unreasonably delay Buyer's
development of the subject parcel, sluice said water through
the subject parcel. This provision shall survive the closing on
the subject property; ...
(ID 12, page 15).
76. ID 12, pages 49 -56 consist of a letter dated April 30, 2007, from Kloecker to
Vickery, enclosing bid specifications and two bids that Kloecker had received from
other area contractors for sluicing the Existing Waterway.
a. The letter requested that Vickery inform Kloecker by May 2, 2007, as to
whether Vickery wanted to do the sluicing work himself or reimburse UWS
for the low bid amount.
b. The low bid was in the amount of $10,016.75 and was from "Duffy, Inc." (ID
12, page 56).
c. The high bid was in the amount of $10,297 and was from "Earth- Works." (ID
12, page 55).
77. ID 13, pages 2 -5 consist of a faxed transmission dated May 4, 2006, from
Vanderpoel to Orris.
Vickery 06 -065
Page 47
a. The faxed transmission included a cover sheet with the following request:
"Ed: Could you tell us what permit is needed to accomplish the following
work for Bradford Township, McKean County." (ID 13, page 2).
b. The proposed work was set forth on the remaining pages of the fax at ID 13,
pages 3 -5.
c. The faxed transmission included statements by Vanderpoel that the Culvert
was in poor condition and needed to be replaced, and that the most
economical solution would be to plug the Culvert and route the storm water
in the existing ditch along Rutherford Run Road. (ID 13, page 3).
78. ID 13 pages 8 -61 consist of the Permit Application submitted to DEP by Vanderpoel
for the Re- Routing Project, together with a cover letter from Vanderpoel dated May
11, 2006.
a. The Permit Application identified Bradford Township as the Applicant (ID 13,
pages 9, 39).
(1) The Permit Application identified Supervisor Tom Vickery as the
Appplicant's contact person (ID 13, page 39).
b. The Permit Application was signed by Vickery as a Bradford Township
Supervisor.
c. ID 13, pages 12 and 14 consist of notice letters to Bradford Township and
the McKean County Commissioners regarding the prospective filing of the
Permit Application.
(1) The letters identified the Township as the Applicant and Vickery as
the Applicant's contact person at the following address: 136 Hemlock
Street, Bradford, PA 16701.
d. ID 13, page 37 consists of the following Project Narrative:
Project Narrative
This project is the reconstruction of a township drainage
facility. The existing culvert under Rutherford Run Road is in
need of replacement. This culvert is buried approximately 8'
deep, and would require an extensive effort to replace. As an
alternative, the township has decided to route the stormwater
drainage down the existing (and adjacent) ditch along
Rutherford Run Road, which will discharge the stormwater to
Rutherford Run Creek (the same as the original discharge).
The site plan shows this alternate route.
The drainage area is less than 100 acres.
Rutherford Run Creek is a cold water fishery.
This permit is required to change the water flow in the existing
waterway.
(ID 13, page 37).
Vickery 06 -065
Page 48
79. ID 13, pages 99 -100 consist of a letter dated August 21, 2006, from Patrick G.
Williams, P.E. of DEP to Kloecker of UWS, regarding the Property, which letter
states, in part:
We became aware of the proposed development in April 2006
through Bradford Township Supervisor, Tom Vickery. Mr. Vickery
asked us if DEP Permit E42 -250, to enclose a portion of Rutherford
Run and impact wetland and floodway areas at the site, was still valid.
We informed Mr. Vickery that the permit expired in 2000, and that
development such as he had described would likely require: A Water
Obstruction and Encroachment Permit, an NPDES Construction
Stormwater Permit, and other DEP permits. On April 26, 2006, DEP
Engineer Edward Orris and Mr. Vickery met at the site and discussed
relevant permitting requirements. On the same day, Mr. Orris and Mr.
Vickery discussed permitting requirements for diverting a Rutherford
Run tributary that runs through the property. Mr. Vickery indicated
that the tributary would be diverted to the roadside ditch along
Rutherford Run Road and High Street.
On May 1, 2006, we met with representatives of your company,
your consultant (Art Kuholski of Lake Engineering), and Mr. Vickery at
our Northwest Regional Office to more formally discuss permitting
requirements for the site. We discussed the regulatory requirements
to avoid and minimize impacts to wetlands and to investigate other
properties as alternative locations for development. We also
discussed the importance of avoiding impacts to Rutherford Run, and
the adjacent floodway. Since this meeting, we have met and spoken
on the phone several times with representatives of your company to
discuss environmental permitting associated with development at the
site.
On May 16, 2006, we received Bradford Township's Permit
Application E42 -322 to divert the Rutherford Run tributary that runs
through the site, and we are currently reviewing the application....
(ID 13, pages 99 -100).
80. ID 13, pages 102 -102A consist of a letter dated August 24, 2006, from Patrick G.
Williams, P.E. of DEP to Vickery regarding the Permit Application, which letter
raised concerns including that the proposed watercourse realignment would
convert the drainage ditches along Rutherford Run Road and High Street into
Regulated Waters of the Commonwealth.
81. ID 14, pages 1 -106 consist of certified copies of Township Board meeting minutes
and Bradford Township Vacancy Board meeting minutes for meetings held between
January 3, 2006, and August 20, 2007.
82. ID 14, pages 1 -91 consist of certified copies of Township Board meeting minutes
and Bradford Township Vacancy Board meeting minutes taken by Auteri.
a. These minutes are for a Bradford Township Vacancy Board meeting held
August 24, 2006, and Township Board meetings held: January 3, 2006;
February 13, 2006; March 20, 2006; April 17, 2006; May 15, 2006; June 19,
2006; July 17, 2006; August 21, 2006; August 24, 2006; September 5, 2006;
September 18, 2006; September 26, 2006; October 16, 2006; November 20,
2006; December 27, 2006; January 2, 2007; January 19, 2007; and February
12, 2007.
Vickery 06 -065
Page 49
83. Vickery attended the August 24, 2006, Bradford Township Vacancy Board meeting
and all of the Township Board meetings from January 3, 2006, through and
including June 19, 2006.
84. None of the meeting minutes from January 3, 2006, through and including June 19,
2006, include any reference to the Re- Routing Project, the Permit Application, or
any problem with the Culvert or the Culvert site.
85. ID 14, pages 23 -26 consist of the minutes of the June 19, 2006, Regular Meeting of
the Township Board.
a. All three Bradford Township Supervisors, including Vickery, Frigo, and
Supervisor Mascho, were present at this meeting and voted to approve
payment of invoices totaling $44,357.91.
b. These minutes of the June 19, 2006, Regular Meeting of the Township
Board were approved by a unanimous vote of the Bradford Township
Supervisors. (ID 14, page 28).
86. ID 14, pages 28 -31 consist of the minutes of the July 17, 2006, Regular Meeting of
the Township Board.
a. All three Bradford Township Supervisors, including Vickery, Frigo, and
Supervisor Mascho, were present at this meeting.
b. The minutes of this meeting include the following under the heading,
"Citizens to be Heard ":
Mr. Yovichin asked why the township paid $700 to E & M
Engineers to look at water tributaries on a piece of land
located at Rutherford Run. Mr. Vickery explained that
Meadville's (DEP) position is, any water that comes from any
area with the exception of a public road, comes out of the bank
as a spring seep; comes off of a hill as a flow; comes from any
source, but the public road exclusively, it is a tributary. A
tributary is deemed to be a stream. A stream requires a
permitting process to alter clean drain maintain or otherwise.
Mr. Vickery said he brought the issue to the attention of State
Representative Causer and Senetor [sic] Scarnati also. When
the AT & T (now Verizon) and GPU (now Penelec) facilities
were created, drainage was established and was only for the
single purpose of those two facilities. It comes down between
those two facilities to Rutherford Run. Because of the
installation, they put in a concrete bell pipe across Rutherford
Run and then exit that pipe across an entire parcel of ground
to the Rutherford Run stream. That concrete pipe is
disconnected both in the roadway and in the township right -of-
way. Since the pipe has been disconnected the ground has
sunk. Mr. Vickery went on to explain that with the thoughts of
this being a tributary, it requires extensive permitting to
maintain it in the future or to correct it. Mr. Vickery discussed
options with Mr. Vanderpoel our engineer. To minimize our
costs, it was cheaper to raise the elevation of the pipe that
comes down through Verizon and Penelec and put that flow
into the ditch on that side of Rutherford Run; allow that ditch to
carry that water down to High Street which will allow it carry
Vickery 06 -065
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[sic] it down to the Rutherford Run Stream, along High Street.
It would eliminate a single crossing that we currently have.
Mr. Frigo asked Mr. Vanderpoel if he felt that was the cheapest
and best way to go as Mr. Vickery just explained. Mr. Frigo felt
that the ditch was pretty deep and should be able to handle
the water without being cleaned out. Mr. Vanderpoel said it
would depend how extensive the repairs would have to be. If
the road would need to be dug up, then yes it would be costly.
Steve Mascho asked Mr. Vanderpoel if he felt it was okay to
leave the pipe the way it is. Mr. Mascho and Mr. Vanderpoel
looked at the flow during heavy rains and it appeared to be
fine. Mr. Vanderpoel said it would depend how bad it was
under the road. Mr. Vickery interjected saying he had more of
a concern with the right -of -way where the collapse is.
(ID 14, page 29).
c. At this meeting, Frigo announced his resignation from the Township
Board effective July 19, 2006, and a motion to accept Frigo's
resignation was approved.
d. These minutes of the July 17, 2006, Regular Meeting of the Township
Board were approved by a unanimous vote of the Bradford Township
Supervisors, with Respondent seconding the motion to approve the
minutes. (ID 14, page 32).
87. ID 14, pages 32 -37 consist of the minutes of the August 21, 2006, Regular Meeting
of the Township Board.
a. Two Bradford Township Supervisors, Vickery and Supervisor Mascho, were
present at this meeting.
b. The minutes of this meeting indicate that both Vickery and Supervisor
Mascho voted to approve payment of invoices totaling $48,503.41.
c. These minutes of the August 21, 2006, Regular Meeting of the Township
Board were not approved, with Supervisor Mascho taking action to approve
the minutes and Respondent opposing the approval of the minutes. (ID 14,
page 54).
88. On August 24, 2006, Don Cummins was appointed to replace Frigo as a Bradford
Township Supervisor, following Frigo's resignation from the Township Board. (ID
14, pages 38 -48).
89. ID 14, pages 54 -62 consist of the minutes of the September 18, 2006, Regular
Meeting of the Township Board.
a. All three Bradford Township Supervisors, including Vickery, Supervisor
Cummins, and Supervisor Mascho, were present at this meeting.
b. Significant portions of the minutes of this meeting from ID 14, pages 56 -59
are quoted in other Fact Findings, infra.
c. The minutes of the September 18, 2006, Regular Meeting of the Township
Board were approved by a 2 -1 vote of the Bradford Township Supervisors,
Vickery 06 -065
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with Supervisor Mascho and Supervisor Cummins voting in favor of the
motion to approve the minutes, and Vickery voting against the motion to
approve the minutes. (ID 14, page 65).
90. ID 16, pages 1 -7 consist of billing and payment information regarding the work
performed by Vanderpoel in relation to the Permit Application.
a. ID 16, pages 1 -2 consist of Invoice Number 20796 dated June 12, 2006,
from E &M Engineers to Bradford Township, for the Billing Period from May 1,
2006, to June 1, 2006.
(1) This invoice includes the amounts of $188.00 (designated as Task
11- Field- Rutherford Run Catch Basin) and $771.00 (designated as
Task 11- Office - Rutherford Run Catch Basin), both of which amounts
were billed to Bradford Township for work related to the Permit
Application.
(2) ID 16, pages 4 -5 consist of Bradford Township check number 11942
and a carbon copy of the check with details indicating payment by
Bradford Township to E &M Engineers in the amount of $959.00 for
the amounts of $188.00 and $771.00 billed in relation to the Permit
Application.
b. ID 16, page 3 consists of Invoice Number 20878 dated July 17, 2006, from
E &M Engineers to Bradford Township, for the Billing Period from June 1,
2006, to July 2, 2006.
(1) This invoice includes the amount of $20.00 (designated as Task 11-
Office- Rutherford Run Catch Basin), which amount was billed to
Bradford Township for work related to the Permit Application.
(2) ID 16, pages 6 -7 consist of Bradford Township check number 12010
and a carbon copy of the check with details indicating payment by
Bradford Township to E &M Engineers in the amount of $20.00 for the
amount of $20.00 billed in relation to the Permit Application.
91. ID 17, page 3 consists of a real estate proposal dated March 31, 2006, from Vickery
to UWS regarding the Property.
92. ID 18 -47 consists of a certified copy of a drawing by E &M Engineers that is among
the official records of DEP, which drawing includes a portion of the Property and
erroneously indicates the placement of the existing ditch along High Street as being
along the west side of High Street.
93. Respondent's Exhibit N is an amended version of the drawing in evidence as ID 18,
page 47.
a. Respondent's Exhibit N bears the designation, "REVISED 1/24/08," and
correctly indicates the placement of the existing ditch along High Street as
being along the east side of High Street.
94. Respondent's Exhibit I consists of Resolution 88 -7 of the Bradford Township
Supervisors, adopted January 11, 1998, which provided as follows:
BE IT HEREBY RESOLVED, that all Departmental purchases,
amounting to or exceeding $2000 be discussed and approved by a
Vickery 06 -065
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quorum of the Bradford Township Supervisors before making the
purchase.
Purchase of any item lower than the $2000 limit must be
covered by a requisition approved by the Bradford Township
Supervisor in charge of the department.
Resolution 88 -7 shall supercede Resolution 87 -7 adopted on
the 26 day of January 1987.
(Respondent's Exhibit 1).
D. Other Findings
95. Vickery, acting in his capacity as a Bradford Township Supervisor, directed
Vanderpoel to apply for a permit for the Re- Routing Project, and no other Bradford
Township Supervisor authorized Vanderpoel to do so. (See, Fact Findings 59 r, 59
x(6), 59 y(1), 59 jj, 59 kk(3), 61 f, 61 g, 64 k, 67 x -y).
96. Vanderpoel was not present when Vickery and Orris were at the Property on April
26, 2006. (See, Fact Findings 59 d, 59 f(1), 59 h, 66 c, 66 c(8), 66 g(1), 67 s(3), 67
u).
97. Vanderpoel did not meet with Vickery at the Culvert site until May 4, 2006. (See,
Fact Findings 59 d, 59 f(1), 59 h, 66 c, 66 c(8), 66 g(1), 67 s(3), 67 u).
98. As of May 1, 2006, prior to meeting with or discussing with Vanderpoel the Culvert
site, Vickery had already determined that he would pursue the Re- Routing Project
in the name of Bradford Township. (See, Fact Findings 67 v(3), 73 a(2)).
99. It was Vickery, not Vanderpoel, who came up with the idea of the Re- Routing
Project. (See, Fact Findings 59 j(1), 59 k, 67 v(3), 73 a(2)).
100. Paragraph 7 (c) of the Sales Agreement between Vickery d /b /a Vickery Enterprises
and UWS (ID 12, page 15) is ambiguous.
III. DISCUSSION:
As a Bradford Township Supervisor from January 2002 to January 2008,
Respondent Tom Vickery (hereinafter also referred to as "Respondent," "Respondent
Vickery," or "Vickery ") was a public official subject to the provisions of the Public Official
and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq.
The allegations are that Vickery as a Member and Chairman of the Board of
Supervisors of Bradford Township violated Section 1103(a) of the Ethics Act when he used
the authority of his office for a private pecuniary benefit to enhance the value of property
he was selling by using the Township Engineer to perform services at a cost to the
Township to improve property Vickery was selling a private individual; and when Vickery
through the use of the authority of his public office, caused a permit application to be
submitted to the Pennsylvania Department of Environmental Protection in the name of the
Township, regarding the reconstruction of a catch basin, in an attempt to have the
Township perform such work thereby eliminating the need and cost for Vickery to privately
perform the work necessary to resolve water issues on property he was selling.
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:
Vickery 06 -065
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65 Pa.C.S. § 1103(a).
§ 1103. Restricted activities
(a) Conflict of interest. —No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
The term "conflict of interest" is defined in the Ethics Act as follows:
§ 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 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. The term 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.
We shall now summarize the relevant facts.
Respondent Vickery was elected to the office of Bradford Township Supervisor in
2001. Vickery served a six -year term as a Bradford Township Supervisor, from January
2002 until January 2008. In 2006, which is the year most relevant to this matter, Vickery
also served as Chairman of the Bradford Township Board of Supervisors ( "Township
Board "). The Township Board is a three - member board.
In his private capacity, Vickery develops real estate.
This matter pertains to certain real estate located at or in the vicinity of the
intersection of High Street and Rutherford Run Road in Bradford Township, which property
is more fully described in the deed in evidence as ID 11, pages 7 -11, and is also referred
to herein as the Property."
In or about November 2005, Vickery was in contact with representatives of a
company named "Universal Well Services, Inc." ( "UWS ") who were interested in relocating
a UWS facility located in Foster Township. Foster Township borders Bradford Township.
In initial contacts with UWS representatives, including UWS President Richard
Remington ( "Remington "), Vickery suggested as a possible site for relocation a property in
Bradford Township that had previously been used for the Corning Glassware factory and
Vickery 06 -065
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office and for Bradford Electronics, which property is also referred to herein as the
"Corning /Bradford Electronics Property."
On March 1, 2006, Vickery attended a special meeting of the Foster Township
Board of Supervisors at which Vickery publicly suggested that UWS representatives
examine the Corning /Bradford Electronics Property as an example of a potential site to
which UWS could relocate. Vickery subsequently contacted Remington and discussed
with Remington the requirements of UWS for a suitable location.
In March 2006, UWS representatives looked at numerous properties in Bradford
Township and considered only two such properties to be viable options for UWS,
specifically, the Corning /Bradford Electronics Property and the Property. However, after
walking through the Corning /Bradford Electronics Property, the UWS representatives felt
that it would not be acceptable and turned their attention to the Property. At or about the
same time, Vickery was in active negotiations with David Walters, one of the owners of the
Property, to purchase the Property.
Vickery submitted to UWS a real estate proposal dated March 31, 2006, regarding
the Property. In April 2006, Vickery informed UWS representatives that he had an
agreement with Walters to sell the Property for him. In actuality, by late April 2006,
Vickery had reached an understanding with Walters that Vickery would purchase the
Property for $75,000.
The Property had several delineated wetlands, but according to UWS Manager of
Corporate Development, Michael F. Kloecker ( "Kloecker "), there were only two courses of
water flowing across the Property that were of concern to UWS for purposes of site
development: (1) Rutherford Run Creek; and (2) a waterway designated on the drawing in
evidence as Respondent's Exhibit N as the "Existing waterway" (hereinafter, "Existing
Waterway "), which entered the Property after running through a culvert under Rutherford
Run Road (hereinafter also referred to as the "Culvert "), and then cut across the Property
to Rutherford Run Creek. The Existing Waterway was of concern to UWS because DEP
approval would be required to either sluice it or eliminate it.
There was also a ditch along the western boundary of the Property and east side of
High Street, which Kloecker testified was of no concern to UWS and never entered into
discussion.
On April 26, 2006, while acting in his capacity as a Bradford Township Supervisor,
Vickery met with Edward Orris ( "Orris "), a DEP Senior Civil Engineer, regarding a site that
is unrelated to this matter. While meeting with Orris regarding the unrelated site, Vickery
asked Orris to also look at the Property. Vickery and Orris then went to the Property.
Vickery claims that he telephoned Bradford Township Engineer Allan R. Vanderpoel
of "E &M Engineers and Surveyors PC" (hereinafter also referred to as "E &M Engineers ")
and asked him to meet Vickery and Orris at the Property. Vickery claims that Vanderpoel
did so. Orris has no recollection of Vanderpoel being present with Vickery and Orris on
April 26, 2006, at the Property. Vanderpoel testified that he met Vickery at the Property at
a later date, specifically May 4, 2006. Vickery has acknowledged that he only met
Vanderpoel at the Property once. Based upon the evidence, we have factually determined
that Vanderpoel was not present at the Property with Vickery and Orris on April 26, 2006.
(See, Fact Findings 96 -97).
While at the Property on April 26, 2006, Vickery asked Orris about the permitting
requirements that would be needed to allow UWS to develop the Property. Vickery also
inquired as to whether permits would be required to block the Culvert and re -route the
Existing Waterway. Vickery indicated that the Existing Waterway would be diverted to the
roadside ditches along the north side of Rutherford Run Road and the east side of High
Vickery 06 -065
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Street. Vickery told Orris that Bradford Township had maintenance issue(s) with the
Culvert, and that it would be better to block off the Culvert than deal with the maintenance
issue(s).
Vickery testified that in late April 2006, he had discovered problems with the Culvert
a few days prior to meeting with Orris (on April 26, 2006). Regarding the nature of the
problems with the Culvert, Vickery testified that he observed that the ground around a box
culvert near the Culvert was eroded and sunk, that there were indentations in the ground
on the north side of Rutherford Run Road and between the box culvert and ditch line, and
that the concrete in the Culvert was separating at the joints. Vickery testified that the
condition of the Culvert was such that it did not require immediate repair, but that it needed
a repair or correction to avoid continued deterioration, more extensive repairs, and
potential liabilities.
On May 1, 2006, Vickery, UWS representatives, and DEP representatives including
Orris participated in a meeting regarding the development of the Property. Although Orris
did not recall the issue of re- routing the Existing Waterway being discussed at this
meeting, Vickery acknowledged that the meeting did include the issue of the allegedly
blocked Culvert being a concern to UWS's development plans. (Fact Finding 67 v(2)). At
this meeting, Vickery told the representatives who were in attendance that the permit
application for re- routing the water coming through the Existing Waterway was being taken
care of by Bradford Township.
However, it was not until after the May 1, 2006, meeting among Vickery, UWS
representatives, and DEP representatives that Vickery for the first time raised issues
regarding the Culvert with someone involved with Bradford Township. Specifically, on May
4, 2006, Vickery telephoned Vanderpoel and asked him to meet Vickery at the Culvert site.
Vickery told Vanderpoel that the Culvert was in poor condition. Prior to receiving Vickery's
telephone call on May 4, 2006, Vanderpoel had not been aware of any problem at the
Culvert site.
It is clear that Bradford Township is responsible for maintaining the Culvert, and that
Vickery contacted Vanderpoel in Vickery's capacity as a Bradford Township Supervisor.
Vickery also served as head of the Bradford Township Roadway Department in 2006.
Vanderpoel met Vickery at the Culvert site on the morning of May 4, 2006.
Vanderpoel testified that there exists a depression in the ground over the location of the
Culvert and water is running under the Culvert to a degree, indicating that there is a joint
problem in the Culvert. Vanderpoel testified that he believes the Culvert has a separated
joint. Vanderpoel testified that at some future point in time, which point he could not
predict, work would be needed at the Culvert site. However, on May 4, 2006, the Culvert
site was not in immediate danger of collapsing.
Vanderpoel testified that there were two alternative methods for correcting the
perceived problem with the Culvert, which were: (1) to replace the Culvert in its current
location; or (2) to re -route the water and block the Culvert so that, instead of running
through the Culvert under Rutherford Run Road and across the Property in the Existing
Waterway, the water would instead run along Rutherford Run Road in the existing ditch
north of said road, then underneath Rutherford Run Road and through the existing ditch
along the edge of the Property on the east side of High Street and emptying into
Rutherford Run Creek.
It was Vickery who suggested to Vanderpoel using the re- routing alternative.
Vanderpoel testified that the re- routing alternative was not something that Vanderpoel
considered a normal practice, and it had not entered Vanderpoel's mind "until it was
brought up that that's what could be done." (January 29, 2008, Tr. at 156).
Vickery 06 -065
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On May 4, 2006, when Vanderpoel met with Vickery at the Culvert site, Vanderpoel
knew that there was some type of a connection between Vickery and the Property, but
Vanderpoel did not know what the connection was. Vickery did not disclose his connection
to the Property to Vanderpoel.
Vanderpoel testified that when he first analyzed the two alternatives for correcting
the problem at the Culvert site, he believed that the cheaper alternative was to re -route the
water. Vanderpoel was assuming that replacing the Culvert in place would require digging
up asphalt at Rutherford Run Road. Additionally, Vanderpoel did not realize that a permit
would be required for re- routing the water at the Culvert site. After contacting Orris,
Vanderpoel learned that a permit would be required.
On May 4, 2006, after meeting with Vickery at the Culvert site, Vanderpoel faxed to
Orris the documents in evidence as ID 13, pages 2 -5. The faxed transmission included a
cover sheet with the following request: "Ed: Could you tell us what permit is needed to
accomplish the following work for Bradford Township, McKean County." (ID 13, page 2).
The proposed work was set forth on the remaining pages of the fax, which included a
statement by Vanderpoel that the most economical solution for correcting the problem at
the Culvert site would be to plug the Culvert and route the storm water in the existing ditch
along Rutherford Run Road. (ID 13, page 3).
On May 5, 2006, Vanderpoel received a telephone call from Orris, who indicated
that a permit would be needed to accomplish the proposed work.
Vickery, acting in his capacity as a Bradford Township Supervisor, directed
Vanderpoel to apply for a permit to re -route the water at the Culvert site (which re- routing
is hereinafter also referred to as the "Re- Routing Project "). No Bradford Township
Supervisor other than Vickery approved the Re- Routing Project, authorized Vanderpoel to
apply for a permit for the Re- Routing Project, or even had knowledge of the Re- Routing
Project at that time. Vickery testified that based upon his discussions with Vanderpoel, his
knowledge of Bradford Township Resolution 88 -7 (which authorized Township department
heads to purchase items under $2,000 without first securing the consent of the other
Township Supervisors (see, Fact Finding 94)), and the potential dollar amount involved, he
(Vickery) believed that he had authority to take action on behalf of Bradford Township to
correct the issues with the Culvert without consulting with the other supervisors. Bradford
Township Resolution 88 -7 did not specifically address the purchase of professional
services or the submission of an application for a DEP permit, and it clearly did not
authorize the purchase of items at Bradford Township expense for personal purposes.
It is undisputed that the Re- Routing Project would have affected the Property by
drying up the "Existing Waterway." From the perspective of developing the Property, it
would have been more desirable to have the Existing Waterway re- routed as contemplated
by the Re- Routing Project, because that would have made more of the land in the middle
of the Property useable.
At Vickery's direction, and in his capacity as the Bradford Township Engineer,
Vanderpoel prepared and forwarded to DEP the "Joint Application for Pennsylvania Water
Obstruction and Encroachment Permit and U.S. Army Corps of Engineers Section 404
Permit" that is in evidence as ID 13, pages 9 -61 (hereinafter also referred to as the "Permit
Application "). Vanderpoel forwarded the Permit Application to DEP under cover letter
dated May 11, 2006 (ID 13, page 8). The Permit Application was to accomplish the Re-
Routing Project. The Permit Application identified Bradford Township as the Applicant and
Supervisor Tom Vickery as the Applicant's contact person. One Township Supervisor's
signature was required for the Permit Application. The Permit Application was signed by
Vickery as a Bradford Township Supervisor.
Vickery 06 -065
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Because the Permit Application was submitted to DEP in the name of Bradford
Township, there was no filing fee. Such filing fees are waived for political subdivisions of
the Commonwealth of Pennsylvania. If an individual or corporation would have submitted
the Permit Application to DEP, the filing fee would have been $300.
The Permit Application process required certain letters (ID 13, pages 12, 14) to be
sent to the municipality and the county, notifying them of the Permit Application. It is not
clear from the evidence when the other Bradford Township Supervisors became aware of
the notice letter to the Township.
From the submission of the Permit Application to DEP in mid -May 2006, through
August 2006, the Permit Application was moving through various stages of review.
The Army Corps of Engineers issued a letter dated July 27, 2006, to Vickery,
indicating its authorization of the Re- Routing Project, which letter is in evidence as ID 18,
pages 8 -9.
However, issues were raised by DEP as to the Permit Application. Initially, by letter
dated May 22, 2006, DEP notified Vickery that the Permit Application was administratively
incomplete because certain additional information was needed. Vanderpoel supplied the
required additional information under cover letter dated May 24, 2006. After the Permit
Application was deemed administratively complete, DEP issued a "technical deficiency
letter" dated August 24, 2006, to Vickery, raising certain technical deficiency issues with
the Permit Application that would have to be resolved before a permit could be issued.
The technical deficiency issues were raised just before other Bradford Township
Supervisors withdrew the Permit Application, as discussed more fully below.
Vanderpoel /E &M Engineers billed Bradford Township in the total amount of $979 for
the work related to the Permit Application. The invoices for such services are dated June
12, 2006, and July 17, 2006, and are within Exhibit 16.
Communications between UWS and Vickery in May 2006 establish that for UWS, it
was material to any agreement to purchase the Property that the necessary permits be
obtained to enable UWS to have enough usable acreage for its site development plans.
On May 23, 2006, during a telephone conversation, which included Vickery and Kloecker,
it was discussed that a sales agreement would have to include language about Bradford
Township relocating the Culvert underneath Rutherford Run Road. (ID 12, page 4). The
reference to relocating the Culvert underneath Rutherford Run Road pertained to the Re-
Routing Project.
On June 5, 2006, Vickery and UWS entered into the Sales Agreement that is in
evidence as ID 12, pages 14 -16 ( "Sales Agreement "). (See, Fact Finding 42). The Sales
Agreement provided for the sale of the Property by Vickery d /b /a Vickery Enterprises to
UWS for $150,000. Paragraph 7 of the Sales Agreement provided, in part:
7. This Agreement is contingent upon the following:
(c) That if Seller's application to DEP for the re- routing of the ditch along
Rutherford Run is denied, and it is necessary to re -route the water running
through said ditch across the subject parcel, Seller will, at his own expense,
in accordance with specifications acceptable to Buyer, and in a time frame
which will not unreasonably delay Buyer's development of the subject parcel,
sluice said water through the subject parcel. This provision shall survive the
closing on the subject property; ...
Vickery 06 -065
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(ID 12, page 15).
Kloecker and Vickery testified that Paragraph 7 (c) of the Sales Agreement
contained drafting errors. The reference in Paragraph 7 (c) to the term "Seller" was
incorrect and should instead have referred to the fact that the Permit Application was
submitted by Bradford Township. Additionally, Vickery acknowledged that the word "re-
route" should have been "routed" or "route." (January 31, 2008, Tr. at 49, 115).
Even with the aforesaid corrections, Paragraph 7 (c) of the Sales Agreement is
ambiguous. The testimony of Kloecker and Vickery differs as to whether Vickery had any
obligation to sluice the existing ditch along the western boundary of the Property.
Paragraph 7 (c) of the Sales Agreement does not specifically mention that ditch, and
Kloecker testified that such ditch was of no concern to UWS and never entered into the
discussion. In contrast, Vickery testified that per his discussions with UWS
representatives, if the Permit Application had been approved, and the water course of the
Existing Waterway had been re- routed through the existing ditches north of Rutherford
Run Road and east of High Street along the western boundary of the Property, he would
have considered it his obligation to sluice the ditch on the western boundary of the
Property. (January 31, 2008, Tr. at 50, 52 -53).
Significantly, Vickery further testified that UWS could have required him to sluice
both the Existing Waterway and the ditch along the western boundary of the Property:
I would have had to have sluiced whichever ditch Universal requested me to
after their permitting process had been approved. It could have been one or
two.
(January 31, 2008, Tr. at 113 (Emphasis added)).
Attorney Henry, who drafted the Sales Agreement as Vickery's attorney, testified
that the contractual language did not specifically address the situation of a withdrawal of
the Permit Application.
We note the following fundamental principles of contract interpretation:
The fundamental rule in contract interpretation is to ascertain the intent of
the contracting parties. Robert F. Felte, Inc. v. White, 451 Pa. 137, 302 A.2d
347, 351 (Pa. 1973). In cases of a written contract, the intent of the parties is
the writing itself. Pines Plaza Bowling, Inc. v. Rossview, Inc., 394 Pa. 124,
145 A.2d 672 (Pa. 1958). Under ordinary principles of contract
interpretation, the agreement is to be construed against its drafter. See
Shovel Transfer & Storage, Inc. v. PLCB, 559 Pa. 56, 739 A.2d 133, 139
(1999). When the terms of a contract are clear and unambiguous, the intent
of the parties is to be ascertained from the document itself. Hutchison v.
Sunbeam Coal Corp., 513 Pa. 192, 519 A.2d 385, 390 (Pa. 1986). When,
however, an ambiguity exists, parol evidence is admissible to explain or
clarify or resolve the ambiguity, irrespective of whether the ambiguity is
patent, created by the language of the instrument, or latent, created by
extrinsic or collateral circumstances. Steuart v. McChesney, 498 Pa. 45,
444 A.2d 659, 663 (Pa. 1982); In re Herr's Estate, 400 Pa. 90, 161 A.2d 32,
34 (Pa. 1960). A contract is ambiguous if it is reasonably susceptible of
different constructions and capable of being understood in more than one
sense. Kripp v. Kripp, 578 Pa. 82, 849 A.2d 1159, 1163 (Pa. 2004). While
unambiguous contracts are interpreted by the court as a matter of law,
ambiguous writings are interpreted by the finder of fact. Id.
Ins. Adjustment Bureau, Inc. v. Allstate Ins. Co., 588 Pa. 470, 480 -481, 905 A.2d 462, 468-
Vickery 06 -065
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469 (2006).
Based upon the evidence, we determine that it was clearly the intent of both UWS
and Vickery that if the water course of the Existing Waterway remained in place, Vickery
would have to sluice the Existing Waterway at his expense, regardless of whether that was
due to the Permit Application being withdrawn or denied. (January 30, 2008, Tr. at 175;
January 31, 2008, Tr. at 50).
We further determine that Vickery's assertion that the Re- Routing Project would
have resulted in a financial detriment to him as compared to sluicing the Existing
Waterway is contradicted by Vickery's own aforesaid testimony that UWS could have
required him to sluice both the Existing Waterway and the ditch along the western
boundary of the Property:
I would have had to have sluiced whichever ditch Universal requested me to
after their permitting process had been approved. It could have been one or
two.
(January 31, 2008, Tr. at 113 (Emphasis added)). Under Vickery's own asserted view of
his obligations, if the Re- Routing Project occurred, he would have, at most, only one ditch
to sluice, specifically, the ditch along the western boundary of the Property, but if the Re-
Routing Project did not occur, he would potentially have to sluice both the Existing
Waterway and the ditch along the western boundary of the Property, which would
obviously cost more than sluicing only one water course.
Thus, for purposes of this matter, the necessary conclusion based upon the
evidence before us is that under either Kloecker's or Vickery's testimony as to intent, the
Re- Routing Project would have resulted in a financial benefit to Vickery with respect to his
obligations to UWS as to the Property. To the extent that we, as fact - finder, would be
required to designate which version of the testimony as to intent was accurate, we would
find Kloecker's testimony to be the accurate version.
The remaining material facts may be briefly summarized as follows.
During the course of a single day —July 7, 2006 — Vickery completed the purchase
of the Property from the Walters family and sold the Property to UWS. The difference
between the price of the Property paid by UWS to Vickery ($150,000) and the price of the
Property paid by Vickery to Walters ($75,000) was $75,000.
In June or July 2006, the Bradford Township Secretary /Treasurer raised questions
with the other Bradford Township Supervisors regarding the bills from E &M Engineers for
work on the Rutherford Run catch basin. Following inquiries to Vanderpoel, the other
Township Supervisors learned the details of the Re- Routing Project. Although the
Township Board paid the E &M Engineers invoices, it was the view of the other Supervisors
that there was no need for the Re- Routing Project. In fact, at some point, it was
determined that the Re- Routing Project would have resulted in detrimental changes to the
existing ditches along the north side of Rutherford Run Road and the western border of the
Property, making them regulated waterways subject to DEP regulations.
In July- August 2006, the makeup of the Township Board changed when one of the
supervisors resigned and a new supervisor, Donald R. Cummins ( "Supervisor Cummins ")
was appointed to the Township Board. Shortly after Supervisor Cummins took office in
August 2006, he and Bradford Township Supervisor Steve Mascho issued a letter dated
August 31, 2006, to DEP, requesting that DEP discontinue processing the Permit
Application (ID 18, pages 4 -6). DEP issued a letter dated September 8, 2006, to
Supervisor Cummins and Supervisor Mascho, indicating that the Permit Application was
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considered withdrawn and the DEP file was closed (ID 18, page 3). Thus, DEP ceased
processing the Permit Application in September 2006.
In his private capacity, Supervisor Cummins is employed as a project manager for
"Bob Cummins Construction" and is a partner with his two brothers, Bob Cummins and
Nick Cummins, in "CBI, LLC," also known as "Cummins Brothers Industries." In 2006, CBI,
LLC owned the Corning /Bradford Electronics Property and had attempted to sell it to UWS
before UWS decided to buy the Property.
There was conflicting testimony as to whether there was animosity between
Supervisor Cummins and Vickery. There was also conflicting testimony as to whether
there was animosity between Supervisor Mascho and Vickery. There is a great deal of
evidence as to a certain hostile Township Board meeting on September 18, 2006, where
issues forming the basis of this matter were discussed.
After the Permit Application had been withdrawn, UWS obtained a DEP permit for
the construction of a 92- foot -long, 15 -inch diameter culvert in the Existing Waterway.
UWS obtained bids from two area contractors for sluicing the Existing Waterway, which
bids were both in excess of $10,000. (Fact Findings 55 c, 65 y, 76, 76 a -c). Vickery
sluiced the Existing Waterway himself.
UWS has not built on the Property. In January or February 2007, UWS purchased
from CBI, LLC a portion of the Corning /Bradford Electronics Property and relocated to that
site from Foster Township.
The Township has not taken any action to fix the Culvert or to re -route the water at
the Culvert site. The Culvert has not collapsed. Rutherford Run Road has not collapsed.
Having summarized the above relevant facts, we must now determine whether the
actions of Vickery violated Section 1103(a) of the Ethics Act. As we apply the facts to the
allegations, due process requires that we not depart from the allegations. Pennsy v.
Department of State, 594 A.2d 845 (Pa. Cmwlth. 1991). A violation of the Ethics Act must
be based upon clear and convincing proof. 65 Pa.C.S. § 1108(g). Clear and convincing
proof is "so `clear, direct, weighty, and convincing as to enable the trier of fact to come to a
clear conviction, without hesitance, of the truth of the precise facts in issue." In Re:
Charles E.D.M., 550 Pa. 595, 601, 708 A.2d 88, 91 (Pa. 1998) (Citation omitted).
The allegations are that Vickery as a Member and Chairman of the Board of
Supervisors of Bradford Township violated Section 1103(a) of the Ethics Act: (1) when he
used the authority of his office for a private pecuniary benefit to enhance the value of
property he was selling by using the Township Engineer to perform services at a cost to
the Township to improve property Vickery was selling a private individual; and (2) when
Vickery through the use of the authority of his public office, caused a permit application to
be submitted to DEP in the name of the Township, regarding the reconstruction of a catch
basin, in an attempt to have the Township perform such work thereby eliminating the need
and cost for Vickery to privately perform the work necessary to resolve water issues on
property he was selling.
In considering the first allegation, we find that each element of a violation of Section
1103(a) has been established. Vickery used the authority of his public office as a Bradford
Township Supervisor, serving as Chairman of the Township Board and head of the
Township Road Department, when he directed Vanderpoel to prepare and submit the
Permit Application to DEP. But for being in his public position, Vickery would not have
been able to direct the preparation and submission of the Permit Application in the name of
Bradford Township and at the expense of Bradford Township to re -route the Existing
Waterway. This instruction to Vanderpoel occurred in early May 2006 while Vickery was
actively pursuing a sales agreement for the Property with UWS and knew that in order for
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the transaction to occur, the Existing Waterway either had to be re- routed by the Township
or sluiced by Vickery at his own expense. By directing Vanderpoel to prepare and submit
the Permit Application, Vickery received a private pecuniary benefit consisting of $979
worth of professional services by Vanderpoel /E &M Engineers with regard to the Permit
Application. The fees for such services were paid by Bradford Township.
Fundamentally, even if the Culvert really needed repaired, and regardless of
whether Vickery as head of the Bradford Township Road Department ordinarily had the
authority to authorize the Township Engineer to submit a permit application to DEP,
pursuant to Section 1103(a) of the Ethics Act, Vickery was prohibited from authorizing the
Township Engineer to prepare and submit the Permit Application in the instant matter
because of Vickery's private financial interest in the Property.
We note that by having the Permit Application submitted in the name of Bradford
Township, Vickery also avoided having to pay a filing fee to DEP.
Based upon the evidence before us, we hold that Vickery violated Section 1103(a)
of the Ethics Act when, in 2006, he used the authority of his public office for a private
pecuniary benefit by using the Bradford Township Engineer to perform services at a cost to
Bradford Township in relation to a permit application prepared and submitted to DEP,
which permit application, if approved, would have improved /enhanced the value of
property Vickery was selling to UWS.
We shall now address the allegation that Vickery violated Section 1103(a) of the
Ethics Act when, through the use of the authority of his public office, he caused a permit
application to be submitted to DEP in the name of the Township, regarding the
reconstruction of a catch basin, in an attempt to have the Township perform such work
thereby eliminating the need and cost for Vickery to privately perform the work necessary
to resolve water issues on property he was selling.
As noted above, Vickery used the authority of his public office as a Bradford
Township Supervisor, serving as Chairman of the Township Board and head of the
Township Road Department, when he directed Vanderpoel to prepare and submit the
Permit Application to DEP. This instruction to Vanderpoel occurred in early May 2006
while Vickery was actively pursuing a sales agreement for the Property with UWS and
knew that in order for the transaction to occur, the Existing Waterway either had to be re-
routed by the Township or sluiced by Vickery at his own expense. But for being in his
public position, Vickery would not have been able to direct the preparation and submission
of the Permit Application in the name of Bradford Township at the Township's expense.
Vickery further used the authority of his public office by providing the required signature of
a Township Supervisor for the Permit Application and also by serving as the contact
person for the Permit Application. These actions by Vickery were an attempt by Vickery to
have Bradford Township perform the Re- Routing Project, and thereby eliminate the need
and cost for Vickery to privately perform the work necessary to sluice the Existing
Waterway on the Property he was selling to UWS.
It is clear that the cost of sluicing the Existing Waterway was not de minimis. UWS
obtained bids from two area contractors for sluicing the Existing Waterway, both of which
bids were in excess of $10,000. (Fact Findings 55 c, 65 y, 76, 76 a -c).
Although Vickery failed in his attempt to have Bradford Township perform the Re-
Routing Project, his use of authority of office in an attempt to obtain a private pecuniary
benefit through the Re- Routing Project is sufficient to support the finding of a violation of
Section 1103(a) of the Ethics Act. See, Barr, Order 1452; Santore, Order 1152; Metrick,
Order 1037; Taylor, Order 983. We find that all of the elements for a violation of Section
1103(a) of the Ethics Act have been established in this case.
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Therefore, we hold that Vickery violated Section 1103(a) of the Ethics Act when, in
2006, through the use of the authority of his public office, he caused a permit application to
be submitted to DEP in the name of Bradford Township regarding the reconstruction of the
Rutherford Run catch basin, in an attempt to have Bradford Township re -route the water at
the catch basin site and thereby eliminate an existing waterway on property Vickery was
selling to UWS, and consequently, the need and cost for Vickery to privately perform the
work necessary to resolve issues as to the said existing waterway on such property.
We reject as without merit the legal arguments that have been raised by Vickery.
In New Matter, Vickery contends that the Investigative Complaint /Amended
Investigative Complaint denied Respondent due process of law because it did not contain
a prayer for relief, to properly advise Vickery of the relief sought and the possible penalties
or sanctions that could be imposed against him, and because it did not attach the
documents to which it referred, such that Vickery did not have adequate notice /information
regarding the full nature of the charges (New Matter, paragraphs 29 -30). We reject these
arguments because neither the Ethics Act, this Commission's Regulations, nor due
process of law would require the Investigative Complaint/Amended Investigative Complaint
to: (1) contain a prayer for relief or to advise Respondent of possible penalties contained
within the Ethics Act, the latter of which he is presumed to know; or (2) to attach
documents.
Vickery argues that he did not engage in a conflict of interest because he did not
use the authority of his public office within the meaning of Section 1103 of the Ethics Act.
Vickery emphasizes that Bradford Township had a duty to repair the Culvert, that
Respondent was head of the Township Road Department, that Vanderpoel felt that the
Culvert had problems that could eventually threaten the integrity of Rutherford Run Road,
and that Vickery believed that Resolution 88 -7 authorized him to take action within the
scope of his authority as head of the Road Department. We reject this argument because
Vickery clearly used the authority of office, as detailed above; indeed, some of the very
points raised by Vickery in support of this argument merely serve to further establish the
element of use of the authority of public office.
Vickery argues that his actions were not an attempt to realize pecuniary gain from
the services of the Township Engineer or the enhancement of the value of the Property.
We reject these arguments because that is precisely what Vickery was attempting to do,
and for other reasons noted above with respect to our findings of violations of Section
1103(a) of the Ethics Act.
As for Vickery's assertions that he was being represented in his private capacity by
the same attorney who served as Solicitor for the Township, Gregory Henry, and that
Attorney Henry did not alert Respondent or the Township Supervisors that there was any
ethics violation, such argument is irrelevant. The silence of Attorney Henry has no bearing
on the findings of violations of Section 1103(a) of the Ethics Act by Vickery.
Vickery misspent Township funds for engineering fees for his own personal benefit.
Additionally, although Vickery's plans to re -route the water at the Culvert site failed, due to
the actions of Supervisor Cummins and Supervisor Mascho in withdrawing the Permit
Application, Vickery clearly used the authority of his public position as a Bradford
Township Supervisor in an attempt to have Bradford Township re -route the water at the
catch basin site and thereby eliminate the Existing Waterway on the Property, and
consequently, the need and cost for Vickery to privately perform the work necessary to
sluice the Existing Waterway.
As for the imposition of a financial penalty in this case, Section 1109(c) of the Ethics
Act, 65 Pa.C.S. § 1109(c), provides that any person who obtains financial gain from
violating the Ethics Act, in addition to any other penalty provided by law, shall pay a sum of
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money equal to three times the amount of the financial gain (hereinafter referred to as a
"treble penalty ") into the State Treasury or the treasury of the political subdivision. In the
instant matter, Respondent obtained a financial gain in the amount of $979 (the
engineering fees paid by Bradford Township in relation to the Permit Application) as a
result of his violation of Section 1103(a) of the Ethics Act as referenced herein. We shall
order Respondent to pay a treble penalty in the amount of $2,937, with such payment to be
made payable to Bradford Township and forwarded to this Commission within 30 days of
issuance of this Order, for processing.
Non - compliance will result in the institution of an order enforcement action.
IV. CONCLUSIONS OF LAW:
1. Respondent Tom Vickery ( "Vickery "), in his capacity as a Bradford Township
Supervisor from January 2002 to January 2008, was a public official subject to the
provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S.
§ 1101 et seq.
2. Vickery violated Section 1103(a) of the Ethics Act when, in 2006, he used the
authority of his public office for a private pecuniary benefit by using the Bradford
Township Engineer to perform services at a cost to Bradford Township in relation to
a permit application prepared and submitted to DEP, which permit application, if
approved, would have improved /enhanced the value of property Vickery was selling
to Universal Well Services, Inc. ( "UWS ").
3. Vickery violated Section 1103(a) of the Ethics Act when, in 2006, through the use of
the authority of his public office, he caused a permit application to be submitted to
DEP in the name of Bradford Township regarding the reconstruction of the
Rutherford Run catch basin, in an attempt to have Bradford Township re -route the
water at the catch basin site and thereby eliminate an existing waterway on property
Vickery was selling to UWS, and consequently, the need and cost for Vickery to
privately perform the work necessary to resolve issues as to the said existing
waterway on such property.
In Re: Tom Vickery,
Respondent
ORDER NO. 1467
File Docket: 06 -065
Date Decided: 4/28/08
Date Mailed: 5/15/08
1 Respondent Tom Vickery ( "Vickery "), a public official in his capacity as a Bradford
Township Supervisor from January 2002 to January 2008, violated Section 1103(a)
of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(a),
when, in 2006, he used the authority of his public office for a private pecuniary
benefit by using the Bradford Township Engineer to perform services at a cost to
Bradford Township in relation to a permit application prepared and submitted to
DEP, which permit application, if approved, would have improved /enhanced the
value of property Vickery was selling to Universal Well Services, Inc. ( "UWS ").
2. Vickery violated Section 1103(a) of the Ethics Act when, in 2006, through the use of
the authority of his public office, he caused a permit application to be submitted to
DEP in the name of Bradford Township regarding the reconstruction of the
Rutherford Run catch basin, in an attempt to have Bradford Township re -route the
water at the catch basin site and thereby eliminate an existing waterway on property
Vickery was selling to UWS, and consequently, the need and cost for Vickery to
privately perform the work necessary to resolve issues as to the said existing
waterway on such property.
3. Vickery is ordered to pay a treble penalty in the amount of $2,937, with such
payment to be made payable to Bradford Township and forwarded to this
Commission within 30 days of issuance of this Order, for processing.
a. Non - compliance will result in the institution of an order enforcement action.
BY THE COMMISSION,
Louis W. Fryman, Chair