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HomeMy WebLinkAbout1467-R VickeryIn Re: Tom Vickery, Respondent File Docket: 06 -065 X -Ref: Order No. 1467 -R Date Decided: 7/21/08 Date Mailed: 8/5/08 Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella The State Ethics Commission received a request for reconsideration on June 16, 2008, with respect to Order No. 1467 issued on May 15, 2008. Pursuant to Section 21.29 of the Regulations of the Commission, the discretion of the State Ethics Commission to grant reconsideration is properly invoked as follows: § 21.29. Finality; reconsideration. (b) Any party may ask the Commission to reconsider an order or opinion within 30 days of service of the order or opinion. The requestor shall present a detailed explanation setting forth the reason why the order or opinion should be reconsidered. (c) A request for reconsideration filed with the Commission will delay the public release of an order, but will not suspend the final order unless reconsideration is granted by the Commission. (d) A request for reconsideration may include a request for a hearing before the Commission. (e) Reconsideration may be granted at the discretion of the Commission if: (1) A material error of law has been made. (2) A material error of fact has been made. (3) New facts or evidence are provided which would lead to reversal or modification of the order or opinion and if these could not be or were not discovered by the exercise of due diligence. 51 Pa. Code § 21.29(b), (c), (d), (e). This adjudication of the Commission is hereby issued which sets forth the Discussion and Reconsideration Order. This Reconsideration Order is final and shall be made available with Order No.1467 as public documents on the fifth (5th) business day following the date of issuance of this Order. Vickery 06 -065 Page 2 DISCUSSION On May 15, 2008, we issued Vickery, Order No. 1467, following our review of the record in this case. The allegations were 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 Section 1103(a) 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 ( "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 applying the allegations to the facts of record, we found that: 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. In addition, we ordered Vickery 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 for processing. Following the issuance of Order No. 1467, this Commission received on June 16, 2008, Respondent Vickery's Request for Reconsideration. In the Request for Reconsideration, Vickery claims that the Commission's Conclusions of Law that Vickery violated Section 1103(a) of the Ethics Act as set forth above were not supported by clear and convincing evidence, and specifically: (1) that he used the authority of his public office to further a legal duty of the township to maintain a culvert on a township- maintained roadway; (2) that the Commission ignored the testimony of the township engineer that there was a defect with the culvert and that the engineer believed that re- routing the existing waterway would be the most cost - efficient way to cure the defect; (3) that there was no evidence that Vickery's conduct was done to eliminate the need and cost for him to privately perform work necessary to resolve issues as to the existing waterway; (4) that Vickery's testimony that the granting of the permit to re -route the existing waterway across a different part of the property would have resulted in a financial detriment to him was "uncontroverted "; and (5) that there was no evidence that Vickery 06 -065 Page 3 Vickery would have realized any pecuniary gain or that his actions would have resulted in enhancing the value of the property in question. Vickery further claims that the Commission made material errors of fact as follows: (1) by stating that by having the Permit Application submitted in the name of the township, Vickery avoided having to pay a filing fee to DEP, in that a private individual would not have had standing to apply for such a permit; (2) by ignoring the motive of Supervisor Donald Cummins in acting to rescind the DEP permit without a formal vote and without consulting Respondent or the Township Solicitor; (3) by placing reliance on the fact that the culvert and roadway have not collapsed; (4) by stating that Vickery misspent township funds for engineering fees for his own personal benefit, as to which Vickery references the need for repair of the culvert, the purported cheapest way to fix the problem, Vickery's authority under Township Resolution 88 -7, and payment by the township board of supervisors of the township engineer's fees; (5) by concluding that Vickery received a private pecuniary benefit in the amount of $979.00 for engineering fees paid by the township, with Vickery asserting that the fees were for fulfilling a township duty to maintain a culvert that needed repair; (6) by indicating, in various statements, that the re- routing project would have resulted in a financial benefit to Vickery, with Vickery referencing Township Engineer Vanderpoel's testimony that a problem existed with the culvert, Respondent's testimony that the re- routing of the water would have resulted in a detriment rather than a benefit to him, and Respondent's belief as to his authority under Resolution 88 -7; and (7) by stating 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 was contradicted by his own testimony that UWS could have required him to sluice both. The Investigative Division has filed an Answer and New Matter opposing Vickery's Request for Reconsideration, contending: (1) that the Commission's findings of fact are supported by substantial evidence; (2) that the Commission's findings of fact establish violations of Section 1103(a) of the Ethics Act by Vickery by clear and convincing proof; (3) that Vickery utilized his official position as a Township Supervisor to direct the township engineer to perform various services relating to the submission of an application for a permit to DEP, seeking to re -route an existing waterway on a parcel of property that he was attempting to sell privately; (4) that Vickery's actions in his official capacity satisfied the element of use of authority of office "; (5) that Vickery received an actual private pecuniary benefit consisting of $979.00 as to engineering services performed at township expense and $300.00 as to the waived DEP permit application fee; (6) that had Vickery's efforts as to the re- routing project succeeded, he would have received additional financial benefits through the Township's performance of construction work to re -route the existing waterway, thereby relieving Vickery of his obligation under the Sales Agreement with UWS to sluice the existing waterway at his own expense; (7) that Vickery made a one -day profit of $75,000.00 from the sale of the affected property to UWS, which sale was in part occasioned by the township's application to DEP for a permit to re -route the existing waterway; (8) that Vickery was lacking in credibility; (9) that Vickery's testimony was contradicted by nearly every witness and by documented evidence; (10) that appellate courts will not revisit an administrative agency's decisions regarding issues such as credibility, materiality and weight of evidence; (11) that where more than one possible explanation or scenario may arise from a given set of circumstances, a trier of fact may choose one over another; (12) that both Vickery and Vanderpoel testified that there was no immediate need to do work at the culvert; (13) that per the testimony of Vanderpoel and others, replacing the culvert in place would have been cheaper and quicker than the re- routing project; (14) that the Commission did not "rely" upon the fact that neither the culvert nor the roadway had collapsed but merely mentioned it as one of many factors leading to its decision; (15) that Vickery, not Vanderpoel, made all determinations in relation to the nature of the problem at the culvert and how it would be repaired; (16) that prior to meeting with Vanderpoel regarding the culvert, Vickery had already met with DEP representatives and advised them that the township would be re- routing the existing waterway; (17) that Resolution 88 -7 did not authorize Vickery to retain professional services for the filing of a Vickery 06 -065 Page 4 DEP permit application, and that a local ordinance that would conflict with the Ethics Act would be pre - empted by the Ethics Act; (18) that Vickery's financial detriment theory is contradicted by his own statements and the testimony of others, including UWS Manager of Corporate Development, Michael F. Kloecker ( "Kloecker "); (19) that DEP representative Edward Orris testified that with permission, an individual could have applied for the DEP permit in question, subject to paying the filing fee of $300.00; (20) that the Commission did not ignore, but rather, specifically noted evidence as to whether there was animosity between certain witnesses; (21) that regardless of potential animosity among witnesses, the Commission had sufficient evidence to find violations of the Ethics Act; and (22) that Vickery has failed to meet the regulatory criteria for the exercise of this Commission's discretion to grant reconsideration. Vickery has filed a Reply to the Investigative Division's New Matter, reiterating /asserting: (1) that any request Vickery made of Vanderpoel for services was in connection with the proposed repair and /or maintenance to a perceived defect in the culvert, which culvert the township was obligated to maintain and repair; (2) that at all times, Vickery was acting within the scope of his authority as a Township Supervisor and as head of the township's Roadway Department to address a township obligation under the Second Class Township Code; and (3) that regardless of which way the water was routed across the property, Vickery would have been obligated to sluice it, and that Vickery's testimony that the proposed re- routing of the existing waterway would have resulted in a financial detriment to him was "uncontroverted." In considering whether to grant reconsideration, we initially note that this Commission's Fact Findings must be supported by "substantial evidence," which is such relevant evidence as a reasonable person would consider adequate to support a finding." Bouch v. State Ethics Commission, 848 A.2d 1078, 1080 (Pa. Cmwlth. 2004) (Citations omitted). We note that "[t]he existence of conflicting evidence does not mean the evidence relied on is not substantial." Bouch, 848 A.2d at 1080 (Citations omitted). In Order No. 1467, this Commission reviewed an extensive record, which included some conflicting evidence. This Commission weighed the evidence, made Fact Findings based upon substantial evidence, applied the Ethics Act to the facts of record, and found two violations of Section 1103(a) of the Ethics Act based upon clear and convincing proof. See, 65 Pa.C.S. § 1108(g). Although Vickery may disagree with our view of the evidence, Vickery has failed to establish any material error of law or fact that would warrant reconsideration of Order No. 1467. As we noted in Order No. 1467, even if the culvert was in need of repair, Vickery was prohibited from using the authority of his public office with respect to the permit application for the re- routing project because of Vickery's private financial interest in the affected property. (See, Order No. 1467 at 60). To re -state the obvious, we determined that Vickery had a conflict of interest as to the permit application because the re- routing project would have financially benefited him. There was substantial evidence, including Vanderpoel's testimony, that the re- routing project ultimately would have cost the township more than replacing the culvert in place. But even if the re- routing project would have cost less than replacing the culvert, Vickery would still have been prohibited from using the authority of his public office as to the permit application for the re- routing project because of Vickery's personal financial interest in the affected property. With regard to the element of a "private pecuniary benefit," there was substantial evidence that Vickery realized an actual private pecuniary benefit as to the aforesaid engineering fees and that Vickery would have realized further financial gain had his efforts as to the re- routing project succeeded. Vickery 06 -065 Page 5 There was substantial evidence that the re- routing of the existing waterway was being pursued by Vickery because it was significant to the real estate transaction that he was pursuing with UWS. We considered the relevant testimony and documentary evidence, including but not limited to the Sales Agreement between Vickery and UWS. Based upon the evidence, we determined 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. Order No.1467 at 57 -58. We further determined that Vickery's assertion that the re- routing project would have resulted in a financial detriment to him by having to sluice the ditch along the western boundary of the property as compared to sluicing the existing waterway was contradicted by Vickery's following 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)). We stated that 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. Order No.1467 at 58. We noted that Kloecker testified that the ditch along the western boundary of the property was of no concern to UWS and never entered into the discussion. Order No.1467 at 57. We concluded 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. Order No.1467 at 58. We added that 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. Id. There was credible evidence, consisting of the testimony of DEP representative Edward Orris, that the Permit Application submitted in the name of the township could have been submitted by an individual, as long as the individual had permission and paid the DEP filing fee of $300.00. However, we did not include the amount of the waived DEP filing fee in our calculation of the financial gain that formed the basis for the treble penalty we imposed against Vickery. There is no merit to Vickery's claim that we committed a material error of fact by ignoring the motive of Supervisor Donald Cummins in acting to rescind the DEP permit without a formal vote and without consulting Respondent or the Township Solicitor. Any such motive would have had no relevance to our decision regarding Vickery's conduct that occurred before Supervisor Cummins took office. Finally, our decision did not "rely" on the fact that the culvert and roadway have not collapsed, but such fact had some relevance with regard to the lack of urgency as to any need to repair the culvert. Having reviewed the asserted bases for the Request for Reconsideration, our determination is as follows. No material error of law has been established. No material error of fact has been established. No new facts or evidence has been provided which would lead to a reversal or modification of Order No. 1467. Vickery has failed to meet his Vicker 06 -065 Page 6 burden of proof to establish any need for reconsideration. The Request for Reconsideration is denied. In Re: Tom Vickery, Respondent RECONSIDERATION ORDER NO. 1467 -R 1 The Request for Reconsideration of Vickery, Order No. 1467, is denied. BY THE COMMISSION, File Docket: 06 -065 Date Decided: 7/21/08 Date Mailed: 8/5/08 Louis W. Fryman, Chair