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HomeMy WebLinkAbout1493 JohnsonIn Re: Donald Johnson, Respondent File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella 07 -077 Order No. 1493 9/22/08 10/10/08 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 allegations. Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." A Stipulation of Findings and a Consent Agreement waiving an evidentiary hearing were subsequently submitted by the parties to the Commission for consideration. The Stipulated Findings are set forth as the Findings in this Order. The Consent Agreement has been approved. 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. Johnson, 07 -077 Page 2 I. ALLEGATIONS: That Donald Johnson, a public official /public employee in his capacity as a Supervisor of Honey Brook Township, Chester County, violated Section 1103(a) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. § 1103(a), when he used the authority of his office for the private pecuniary [benefit] of himself and /or a business with which he is associated by participating in discussions and actions of the Board of Supervisors resulting in contracts being awarded to Robert R. Pearson, Inc., a company where he is employed, and when he participated in the approval of payments issued to Robert R. Pearson, Inc.; and when he participated in actions and discussions of the Board of Supervisors to award contracts to Technicon Enterprises, Inc., an engineering firm which employs his wife, and when he participated in approving payments to Technicon. II. FINDINGS: 1. Donald Johnson has served as a Supervisor for Honey Brook Township, Chester County, since January 2000. a. Johnson previously served as a Supervisor for Honey Brook Township for approximately 12 years from approximately 1985 until 1997. b. Johnson has served as Vice - Chairman of the Board of Supervisors since 2006. 2. Johnson has been an employee of Honey Brook Township since 1974. a. Johnson held the position of township road laborer from 1974 until 1981. b. Johnson was appointed by the Board of Supervisors (Board) and held the position of Township Roadmaster from approximately 1981 until 2002. c. Johnson was appointed by the Board and has held the position of Director of Public Works since 2002. 3. Johnson held the position of Roadmaster for Honey Brook Township prior to being elected supervisor in 1985 and continued to hold the position after leaving office in 1997. 4. Johnson has also been employed by Robert R. Pearson, Inc. since approximately 1999 [sic]. [See, Fact Finding 4(g)(1)]. a. Donald Johnson has worked for Pearson on a part -time basis. b. Johnson's job description for Pearson is Truck Driver and Heavy Equipment Operator. c. Johnson has normally worked for Pearson either on a Friday or Saturday. 1. These are his [days off] from township employment. d. Johnson has not worked for Pearson on any projects for Honey Brook Township. e. Johnson does not serve as an officer nor has he had any financial interest in Pearson's business. f. Johnson continued to work on a full -time basis for Honey Brook Township Johnson, 07 -077 Page 3 g. while working for Pearson. Johnson's yearly salary from Pearson from 1999 through 2007 was as follows: YEAR SALARY 1999 $4,769.00 2000 $5,595.50 2005 $4,840.00 2006 $9,509.99 2007 $7,552.48 1. Johnson did not work for Pearson from 2001 through 2004 for personal and family considerations. 5. Honey Brook Township is a second class township governed by a three - member board of supervisors. a. Regular meetings are held once per month. b. Special meetings are held occasionally as needed. 6. Minutes of the reorganization meetings for the Honey Brook Township Board of Supervisors from 2002 through 2008 document the appointment of Donald Johnson as the Director of Public Works and the salary recommended. Date of Meeting January 7, 2002 January 6, 2003 January 5, 2004 January 3, 2005 January 3, 2006 January 2, 2007 January 7, 2008 Recommended Salary $22.12 per hour $50,500 per year $52,500 per year $54,600 per year $58,000 per year $60,600 per year $66,000 per year a. The minutes reflected that Johnson abstained from recommending a salary for himself except in 2007, when he was one of only two Supervisors present for the meeting. 7 Minutes of the reorganization meetings for the Honey Brook Township Board of Auditors from 2002 through 2008 reflected that the salary recommended by the Board of Supervisors for Donald Johnson as the Director of Public Works was approved by the Auditors. a. Compensation approved by the Auditors is the same as outlined in Finding No. 6. 8. The job description for the position of Director of Public Works included the following: a. An administrative /supervisory position. b. Responsible for the inspection, installation, operation, construction, planning, maintenance, and repair of the township's infrastructure, facilities, and equipment. c. Performs other assigned duties. Johnson, 07 -077 Page 4 9. The specific duties and skills of the Director of Public Works are as follows: a. Operate and maintain township property. b. Purchase equipment, tools and materials. c. Coordinate contractor /vendor support for maintenance of township property. d. Direct and schedule work for the Public Works [Department]. e. Operate department within budget. f. Implement evaluation procedures for Public Works employees. g. Coach and counsel employees. 10. On June 12, 2002, the Board of Supervisors of Honey Brook Township approved Resolution number 7 -2002, adopting the Honey Brook Township Personnel Policy Manual. a. The resolution contained the signature of all three supervisors, including Donald Johnson, adopting the Personnel Policy Manual. 11. Section 111.7 of the Personnel Manual had the following policy on Outside Employment for Honey Brook Township: a. Employees shall not engage in outside employment that might in any way hinder the objective and impartial performance of their duties, embarrass the township government, or impair their efficiency on the job. b. The Board of Supervisors was aware of Johnson's outside employment with Pearson and no record exists of any member of the Board questioning Johnson's ability to do his township job or [whether] a conflict existed between Johnson's part -time job with Pearson and his township position. 12. Section 111.13, Subsection C, of the Personnel Manual, involving Scheduled Work Hours, addressed the work performed by the Public Works Department of Honey Brook Township. a. The unique nature of work by the Public Works Department necessitates flexibility in scheduling and recall procedures to ensure public health, safety and welfare. 1. The department head shall establish regulations pertaining to daily starting times. The department head may, upon his /her discretion, adjust the daily work schedules to best utilize available work hours. 2. The department head shall establish procedures for calling -out employees under his /her jurisdiction for work under normal and extraordinary conditions. 3. During the months of April through October, the work week shall be four (4) ten (10) — hour days, unless modified by the department head. 4. During the months of October through April, the work week shall be Johnson, 07 -077 Page 5 five (5) eight (8) — hour days, unless modified by the department head. 5. Temporary or seasonal employees work on an as- needed basis as determined by the department head. 13. The practice of the Public Works Department of working four (4) ten (10) hour days during the summer months was informally adopted during the 1990s prior to the Personnel Policy Manual being established. a. Johnson, as the Director of Public Works, has the ability to change the schedule and hours for the Public Works Department if necessary in order to complete projects. 1. The working hours for the road crew have not changed while Johnson has supervised the department. 14. Robert R. Pearson, Inc. has been providing equipment rental to Honey Brook Township since approximately 1979. a. The work awarded to Robert R. Pearson, Inc. by the township was put out for bid, and Pearson was usually the lowest bidder. b. Township Manager Mike Brown and his assistant were responsible for advertising the specs that led to the award of the bids to Pearson by Honey Brook Township. 1. Johnson played no role in the development of the specs or their advertisement. 15. Articles of Incorporation for Robert R. Pearson, Inc. list Robert R. Pearson as President. a. The business was incorporated in the Commonwealth of Pennsylvania on January 5, 1979. b. The purpose of the business involved contracting, including but not limited to road and related services excavation [sic] and construction, residential and commercial; earth moving, and transportation; and miscellaneous general contracting work. 16. Robert R. Pearson, Inc. has provided equipment rental to other municipalities in Chester County. 17. Donald Johnson abstained from voting on contracts awarded to Pearson in 2002, 2004, 2007, and 2008. a. Johnson voted to award contracts to Pearson in 2003, 2005, and 2006. 1. Johnson voted during those years because he was one of two supervisors present during those meetings. 2. Johnson noted during the meetings when Pearson was [awarded contracts] that he abstains from such votes but because only two Board members were present, he was required to vote. 18. Minutes of the Honey Brook Township Board of Supervisors meetings from 2002 Johnson, 07 -077 Page 6 through 2007 document contracts awarded to Robert R. Pearson and Johnson's official actions as supervisor as follows: a. March 13, 2002 — A motion was made by Michal Jany, seconded by Wes Darby, to award the contract for equipment rental to Bob Pearson per the bid received and opened on March 12, 2002. In favor — Jany, Darby. Abstain — Johnson. b. March 12, 2003 — Supervisors Michal Jany and Don Johnson were present. The Board reviewed the bids received at the March 10 bid opening. The following bids were received for equipment rental: Tri -axle Dump Vendor w /operator Bob Pearson $55.00 Burkholder Paving $97.00 Paver w /operator $80.00 $174.00 Line painting: PSX, Inc. - $5,913.60 8 -10 ton 215 Cat roller Excavator w/o operator w /operator $25.00 $90.00 $60.00 No bid Motion by Don Johnson, seconded by Michal Jany to accept the low bids for each bid. All in favor. Motion carries. c. May 12, 2004 — Robert Pearson was the sole bidder for equipment rental. Motion by Greg Cary, seconded by Wes Darby, to award the equipment rental contract to Robert Pearson. In favor — Cary, Darby. Abstain — Johnson (conflict). d. April 13, 2005 — The township opened bids on April 12, 2005, at 1:15 p.m. The following bids were awarded: • Line painting — Interstate Road Management • Seal coating — Martin Paving • Equipment rental — Bob Pearson Equipment • Blacktop FOB — Burkholder Paving Delivered — Independence Construction Materials Mr. Johnson reported he normally abstains from voting on the equipment rental contract because he works for Pearson Equipment on a part -time basis. However, with only two board members present he had to vote so he disclosed the relationship and participated. All in favor. Motion carries. e. April 12, 2006 — Supervisors Don Johnson and Greg Cary were present. The township opened bids on April 7 after proper advertisement. Bids were received for road materials and equipment rental. Bob Pearson was the only bid for equipment rental. Motion by Don Johnson, seconded by Greg Cary, to accept the low bids. All in favor. Motion carries. f. April 11, 2007 — The township received bids for road materials and equipment rental. The Board opted to re- advertise the equipment rental and line painting bids as only one bidder responded to each. g. May 16, 2007 — The township opened bids on May 9 as received in a second advertisement for line painting, equipment rental and diesel fuel. Lowest bidder: Johnson, 07 -077 Page 7 Diesel Fuel: Johanna Oil (above rack price) w/o additive- -$.22, w /additive, $.25 Equipment rental: Robert Pearson (per hour) Triax dump - -$75, Paver - -$125, Excavator - -$120, D4 Dozer - -$90, Roller - -$30, Backhoe w /hammer - -$100, DM6 Dozer - -$115 Motion by Wes Darby, seconded by Greg Cary, to award contracts to the lowest bidder. In favor - Darby, Cary. Abstain - Johnson (potential conflict). Motion carries. h. February 13, 2008 — Bids were opened at 1:00 p.m. for asphalt, stone, mowing, and equipment rental. Asphalt and stone bids are still being reviewed. Mowing and equipment rental results are: Equipment Rental (per hour) Triax 315 04 0M6 320 602 Trac Dump Paver Excav Dozier Roller Dozier Escav Roller Loader Bob Pearson w/o Operator $70.00 $50.00 $30.00 $75.00 $80.00 $35.00 $75.00 with Operator $75.00 $125.00 $120.00 $115.00 Motion by Lew Wertly, seconded by Greg Cary, to award equipment bid to Bob Pearson and mowing to Greenview Lawn Service. In favor — Wertley, Cary. Abstain — Johnson (conflict). 19. Johnson abstained from votes to award contracts to Pearson because of his employment by Pearson [at certain times] since approximately 1999. a. Johnson was not employed by Pearson in 2001, 2002, 2003, and 2004. 20. After the [contracts] for equipment rental were awarded by the Board of Supervisors to Robert R. Pearson, Johnson, as the Director of Public Works /Roadmaster, made the arrangements with Pearson on requesting the type of equipment needed and when the equipment would be used for township projects. a. The Board of Supervisors, including Johnson, would informally determine the road projects to be completed by the road crew. 1. As Roadmaster, Johnson would identify necessary equipment. b. Johnson would contact Pearson and would identify the equipment needed for specific projects the Public Works Department was working on for the township. c. The equipment the township's Public Works Department used from Pearson included a triax dump truck, paver, excavator, dozer, roller, and backhoe. 21. Pearson would submit invoices to the township detailing the equipment, hourly rate and dates of services. a. The cost to the township for equipment rental was based upon hourly rates approved by the Board of Supervisors. 22. Johnson, as Public Works Director, would be provided the invoices submitted by Pearson for review. a. Johnson was asked by the township bookkeeper to review Pearson invoices Johnson, 07 -077 Page 8 to ensure billings were accurate. YEAR TOTAL 2005 $29,214.00 2006 $16,477.46 2007 $3,930.00 2008 $1,236.28 Johnson, 07 -077 Page 9 23. Pearson submitted invoices to the township between 2005 and 2008 as follows: a. Don Johnson, as the Director of Public Works, was responsible for verifying that the hours Pearson billed the township for the equipment rental were accurate. b. Johnson was not employed by Pearson as a part -time employee in 2001, 2002, 2003 and 2004. c. Johnson abstained from voting to award contracts to Pearson in 2002, 2004, 2007, and 2008. 24. Payment of bills at Honey Brook Township is approved on a monthly basis at the township meeting. a. The bills are approved as part of a consent agenda that includes the previous month's minutes, bills /receipts and the treasurer's report. 25. Voting at Honey Brook Township meetings occurs by an in favor /opposed vote. a. Voting on resolutions and routine monthly issues such as the approval of minutes, monthly bills and the treasurer's report occurs by a group in favor /opposed [vote]. 1. Any abstentions or objections made during the group vote are specifically noted in the minutes. 26. Signature authority over township checks lies with all three supervisors, the township manager and the township bookkeeper. a. Township checks require the signatures of at least two [of the above - referenced individuals]. b. Signatures on township checks are live signatures. 27. Johnson participated [as] a township supervisor [in] approving the payment of bills and signing checks from the Capital Reserve Fund, General Fund, and State Fund for payments made by Honey Brook Township to Robert R. Pearson for equipment rental. a. Johnson voted to approve 13 payments to Pearson in 2005 and 2006, [two of] the years he voted to award contracts to Pearson. b. In 2005 and 2006, Johnson signed 10 checks totaling $45,840.46 [that were] issued to Pearson by the township. THE FOLLOWING FINDINGS RELATE TO THE ALLEGATION REGARDING JOHNSON'S PARTICIPATION IN APPOINTING AS TOWNSHIP ENGINEER A FIRM THAT EMPLOYS HIS WIFE Johnson, 07 -077 Page 10 28. Technicon Enterprises, Inc. 11 has been serving as the Engineer and Code Enforcement Officer for Honey Brook Township since 2001. a. The services provided by Technicon Enterprises, Inc. 11 to Honey Brook Township were considered professional services and not subject to bid. b. Technicon Enterprises, Inc. 11 was appointed each year by the Board of Supervisors at the reorganization meeting. 29. Articles of Incorporation for Technicon Enterprises, Inc. 11 list Jeffrey Kerlin as the President. a. The business was incorporated on July 30, 2001. b. Technicon Enterprises, Inc. 11 acquired Technicon Enterprises, Inc. 1. Technicon Enterprises, Inc. was renamed Technicon Enterprises, Inc II. 30. Technicon Enterprises, Inc. 11 provides engineering consulting services and code enforcement to various municipalities. a. The code enforcement consists of building inspections and zoning [matters]. b. Technicon provides services to approximately 15 municipalities of Pennsylvania in the counties of Berks, Chester, Lancaster and Montgomery. 31. Technicon Enterprises, Inc. had previously served as the Engineer and Code Enforcement Officer for Honey Brook Township from 1994 until 2001, when the firm was purchased by Kerlin and renamed. 32. Minutes of the Honey Brook Township Board of Supervisors reorganization meetings from 2002 through 2008 document the appointment of Technicon Enterprises, Inc. 11 as the Engineer and Code Enforcement Officer. a. The appointments were made as part of the consent agenda for all professional services for the township. b. Donald Johnson abstained from voting each year, with the exception of 2007, for the consent agenda appointments. 1. Donald Johnson abstained, in part, because the consent agenda included his appointment as the Director of Public Works. 2. Donald Johnson voted for the consent agenda in 2007 because there were only two supervisors present. aa. Donald Johnson addressed the conflict and indicated he was voting because there were only two supervisors present. c. Johnson's abstentions were for all matters on the consent agendas, including the appointment of Technicon Enterprises, Inc. 11. 33. Nancy Johnson is the wife of Donald Johnson. 34. On October 8, 2001, Nancy Johnson was hired by Technicon Enterprises, Inc. II as a part -time Receptionist and Clerical Assistant to the Staff. Johnson, 07 -077 Page 11 a. Johnson was hired after submitting an application and being interviewed for the position by Jeffrey Kerlin. 35. Technicon Enterprises, Inc. II's appointment as the Engineer and Code Enforcement Officer for Honey Brook Township was not contingent upon Nancy Johnson being hired by Technicon Enterprises, Inc. II. 36. Nancy Johnson's job description as Receptionist and Clerical Assistant to the Staff was as follows: a. Receiving phone calls, taking messages and scheduling appointments and inspections. b. Word processing /typing of documents and preparing and delivering the mail on a daily basis. 37. Nancy Johnson became a full -time employee with Technicon Enterprises, Inc. II around January 2005. 38. In or around January 2007, Nancy Johnson's position with Technicon Enterprises, Inc. II was reclassified as Assistant Zoning Officer. 39. Nancy Johnson's job description as Assistant Zoning Officer was as follows: a. Assisting the code enforcement officers with all of their administrative duties. 1. This included the inspection and closeout of open, non - structural zoning permits. b. Johnson did not have any responsibility for taking any direct enforcement action on any resident within Technicon Enterprise, Inc. II's appointed municipalities. c. [Johnson] assisted code officers in preparing the documents necessary to initiate the enforcement process. 40. Nancy Johnson performed clerical work, as an employee of Technicon Enterprises, Inc. II, for Honey Brook Township that included typing up reports and letters from the actions that were taken by the code enforcement officer. 41. Nancy Johnson's yearly salary from Technicon Enterprises, Inc. II was as follows: YEAR SALARY 2001 $ 2,225.00 2002 $13,661.67 2003 $15,290.67 2004 $21,843.74 2005 $29,605.70 2006 $32,144.18 2007 $36,272.17 42. Technicon Enterprises, Inc. II billed Honey Brook Township on a monthly basis that listed the billable hours for each employee. a. The clerical work performed by Nancy Johnson was included in the monthly billing. Johnson, 07 -077 Page 12 43. Nancy Johnson's compensation from Technicon Enterprises, Inc. II for the clerical work she performed on matters involving Honey Brook Township from 2003 through 2007 was as follows: YEAR AMOUNT 2003 $ 55.02 2004 $ 71.27 2005 $1,947.00 2006 $ 418.00 2007 $ 404.81 Total - $2,896.10 44. Donald Johnson participated [as] a township supervisor [in] approving the payment of bills and signing checks from the Capital Reserve Fund and General Fund for payments made to Technicon Enterprises, Inc. II for serving as the Engineer and Code Enforcement Officer of Honey Brook Township. 45. Johnson, as a township supervisor, approved the payment of bills and signed checks, as a township signatory, to Technicon Enterprises, Inc. II at a time [when] his wife, Nancy Johnson, was an employee of Technicon Enterprises, Inc. II. a. In 2007, the year that Johnson did not abstain on the appointment of Technicon Enterprises, Inc. II, Nancy Johnson was paid $404.81 by Technicon Enterprises, Inc. II for services performed in relation to Honey Brook Township. 1. Nancy Johnson's total salary for 2007 was $36,272.17. b. Technicon Enterprises, Inc. II was paid $183,298.00 by the township in 2007. 46. In 2005 and 2006, when he voted for the township to contract with Pearson, Donald Johnson was paid a total of $14,349.99 by Robert R. Pearson as a heavy equipment operator. a. Johnson also approved (13) payments to Pearson and signed (10) checks totaling $45,840.46. III. DISCUSSION: As a Supervisor for Honey Brook Township ( "Township ") from approximately 1985 until 1997, and from January 2000 to the present, Respondent Donald Johnson (also referred to herein as "Respondent," "Respondent Johnson," or "Johnson ") has been 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 Johnson violated Section 1103(a) of the Ethics Act when he used the authority of his office for the private pecuniary benefit of himself and /or a business with which he is associated by participating in discussions and actions of the Township Board of Supervisors ( "Board ") resulting in contracts being awarded to Robert R. Pearson, Inc., a company with which Johnson is employed; when he participated in the approval of payments issued to Robert R. Pearson, Inc.; when he participated in actions and discussions of the Board to award contracts to Technicon Enterprises, Inc., an engineering firm that employs his wife; and when he participated in approving payments to Technicon. Johnson, 07 -077 Page 13 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: § 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). The following terms related to Section 1103(a) are 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. "Immediate family." A parent, spouse, child, brother or sister. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 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. As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are reproduced above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. Respondent Johnson has served as a Supervisor for the Township from January Johnson, 07 -077 Page 14 2000 to the present. Since 2006, Johnson has served as Vice - Chairman of the Board. Johnson previously served as a Township Supervisor from approximately 1985 until 1997. The Board consists of three members. The Board holds one regularly scheduled meeting per month and special meetings as necessary. At Board meetings, the Supervisors vote by a group in favor or opposed vote. Any abstentions or objections made during the vote are specifically noted in the minutes. Payment of bills is approved at the Board's regularly scheduled monthly meeting as part of a consent agenda that includes the previous month's minutes, monthly bills, receipts, and the Township Treasurer's report. All three Supervisors, the Township Manager, and the Township bookkeeper have authority to sign Township checks. Township checks require the live signatures of at least two of the aforesaid individuals. Johnson has been a Township employee since 1974. Johnson worked as a Township road laborer from 1974 until 1981 and as Township roadmaster from approximately 1981 until 2002. From 2002 until the present, Johnson has served in the appointed Township position of Director of Public Works. The position of Director of Public Works is an administrative /supervisory position with responsibilities that include, inter alia, coordinating contractor /vendor support for maintenance of township property and directing and scheduling work for the Public Works Department. Since approximately 1979, a business named "Robert R. Pearson, Inc." (also referred to herein as "Robert Pearson ") has provided equipment rental to the Township and other municipalities located in Chester County. From 2005 to the present, Respondent Johnson has been employed by Robert Pearson. Johnson was previously employed by Robert Pearson from 1999 to 2000. From 2001 to 2004, Johnson was not employed by Robert Pearson because of personal and family considerations. Johnson is employed with Robert Pearson on a part -time basis as a truck driver and heavy equipment operator. Johnson is not an officer of Robert Pearson, and he has not had any financial interest in said business. Johnson normally works for Robert Pearson on Fridays or Saturdays, his days off from his Township employment. Respondent Johnson, as a Supervisor, abstained from voting on Township contracts for equipment rental awarded to Robert Pearson in 2002, 2004, 2007, and 2008. Johnson abstained from the aforesaid votes because he was employed, or had previously been employed, with Robert Pearson. However, at Township meetings held on March 12, 2003, April 13, 2005, and April 12, 2006, Johnson voted to award Township contracts for equipment rental to Robert Pearson. During the meetings at which Johnson voted to award the aforesaid contracts to Robert Pearson, Johnson noted that he abstains from such votes, but because only two Board members were present, he was required to vote. The work awarded to by the Township to Robert Pearson was put out for bid, and Robert Pearson was usually the lowest bidder. Johnson played no role in the development of the bid specifications or their advertisement. After the Board awarded equipment rental contracts to Robert Pearson, Johnson, in his capacity as roadmaster and later as the Director of Public Works, would make arrangements with Robert Pearson regarding the type of equipment needed for Township projects and when such equipment would be used. Robert Pearson submitted invoices to the Township detailing the equipment supplied, hourly rate, and dates of services. The cost of the Township's equipment rental was based upon hourly rates approved by the Board. Johnson, 07 -077 Page 15 The Township bookkeeper asked Johnson to review invoices submitted by Robert Pearson for accuracy. Johnson, as the Director of Public Works, was provided the invoices submitted by Robert Pearson and was responsible for verifying the accuracy of the hours billed the Township for the equipment rental. Between 2005 and 2008, Robert Pearson submitted invoices to the Township as detailed in Fact Finding 23. In 2005 and 2006, Johnson voted to approve thirteen payments to Robert Pearson for equipment rental, and he signed, as a Township signatory, ten Township checks totaling $45,840.46 that were issued to Robert Pearson. We shall now review the stipulated Fact Findings relating to the allegations that Johnson participated in actions and discussions of the Board to award contracts to an engineering firm that employs his wife and participated in approving payments to such firm. Since 1994, a firm that currently operates under the name of "Technicon Enterprises, Inc. II" (also referred to herein as "Technicon" or "Technicon Enterprises, Inc. ") has served as the Engineer and Code Enforcement Officer for the Township. Technicon previously operated under the name of "Technicon Enterprises, Inc." Technicon provides engineering consulting services and code enforcement to various municipalities. Nancy Johnson ( "Mrs. Johnson ") is Johnson's spouse. On October 8, 2001, Mrs. Johnson was hired by Technicon as a part -time receptionist and clerical assistant to the staff. In or around January 2005, Mrs. Johnson became a full -time employee with Technicon. Mrs. Johnson's position with Technicon was reclassified to that of Assistant Zoning Officer in or around January 2007. As Assistant Zoning Officer, Mrs. Johnson's job responsibilities include assisting the code enforcement officers with all of their administrative duties. At each Township reorganization meeting from 2002 through 2008, the Board appointed Technicon as the Township Engineer and Code Enforcement Officer. The consent agenda for each year's Township reorganization meeting included Technicon's appointment to the aforesaid positions. With the exception of the 2007 Township reorganization meeting, Johnson abstained from voting on all matters on the consent agenda at each year's Township reorganization meeting from 2002 through 2008, including the appointment of Technicon as the Township Engineer and Code Enforcement Officer. Johnson abstained, in part, because the consent agendas included his appointment as the Director of Public Works. Johnson voted for the consent agenda in 2007 because only one other Supervisor was present at the reorganization meeting. Johnson addressed his conflict of interest and indicated he was voting because there were only two Supervisors present. Mrs. Johnson, as a Technicon employee, performed clerical work on matters involving the Township from 2003 through 2007, including typing up reports and letters from actions taken by the code enforcement officer. Technicon billed the Township on a monthly basis, and the billable hours for each employee, including clerical work performed on Township matters by Mrs. Johnson, were including in the monthly billings. At a time when Mrs. Johnson was a Technicon employee, Johnson, as a Supervisor, participated in approving the payment of bills submitted to the Township by Technicon and signing, as a Township signatory, such checks issued to Technicon. Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. Johnson, 07 -077 Page 16 The parties' Consent Agreement sets forth a proposed resolution of the allegations as follows: 3. The Investigative Division will recommend the following in relation to the above allegations: a. That no violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a) occurred in relation to Johnson participating in discussions and actions of the Board of Supervisors resulting in contracts being awarded to Robert R. Pearson, Inc. and [participating] in approving payments issued to Robert R. Pearson, Inc. during calendar year 2003, as Johnson was not employed by Robert R. Pearson, Inc. at that time. b. That a technical violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a) occurred in relation to Johnson participating in discussions and actions of the Board of Supervisors resulting in contracts being awarded to Robert R. Pearson, Inc., a company where he is employed, and [participating] in approving payments issued to Robert R. Pearson, Inc. in calendar years 2005 and 2006, [when] Johnson noted his conflict of interest, but failed to file the necessary abstention memorandum. c. That a technical violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a) occurred in relation to Johnson participating in discussions and actions of the Board of Supervisors resulting in contracts being awarded to Technicon Enterprises, Inc., an engineering firm which employs his wife, and [participating] in approving payments issued to Technicon Enterprises, Inc. in calendar year 2007, [when] Johnson noted his conflict of interest, but failed to file the necessary abstention memorandum. 4. The Investigative Division will recommend that the State Ethics Commission take no further action in this matter; and make no specific recommendations to any law enforcement or other authority to take action in this matter. Such, however, does not prohibit the Commission from initiating appropriate enforcement actions in the event of Respondent's failure to comply with this agreement or the Commission's order or cooperating with any other authority who may so choose to review this matter further. Consent Agreement, at 1 -2. In considering the Consent Agreement, we accept the parties' recommendation that under the stipulated Fact Findings, no violation of Section 1103(a) of the Ethics Act occurred in relation to Johnson participating in discussions and actions of the Board resulting in contracts being awarded to Robert Pearson and participating in approving payments issued to Robert Pearson during calendar year 2003. Johnson was employed by Robert Pearson from 1999 to 2000 and from 2005 to the present. Johnson was not employed by Robert Pearson from 2001 to 2004. There is no basis in the stipulated Fact Findings for concluding that Johnson was a director or officer of, or had any financial Johnson, 07 -077 Page 17 interest in, Robert Pearson in 2003, or that Johnson had any reasonable expectation in 2003 of again being employed with Robert Pearson. See, Amato, Opinion 89 -002. Accordingly, based upon the stipulated Fact Findings, we hold that no violation of Section 1103(a) of the Ethics Act occurred in relation to Johnson participating in discussions and actions of the Board resulting in contracts being awarded to Robert Pearson and participating in approving payments issued to Robert Pearson during calendar year 2003. We next consider the parties' recommendations that technical violations of Section 1103(a) of the Ethics Act occurred: (1) in relation to Johnson participating in discussions and actions of the Board resulting in contracts being awarded to Robert Pearson, a company where he is employed, and participating in approving payments issued to Robert Pearson in calendar years 2005 and 2006, when he failed to file the necessary abstention memorandum; and (2) in relation to Johnson participating in discussions and actions of the Board resulting in contracts being awarded to Technicon, an engineering firm that employs his wife, and participating in approving payments issued to Technicon in calendar year 2007, when he failed to file the necessary abstention memorandum. At Township meetings held April 13, 2005, and April 12, 2006, Johnson voted to award Township contracts for equipment rental to Robert Pearson. At the time of such meetings, Johnson was employed by Robert Pearson. During the meetings at which Johnson voted to award the aforesaid contracts to Robert Pearson, Johnson noted that he abstains from such votes but because only two Board members were present, he was required to vote. In 2005 and 2006, Johnson voted to approve payments to Robert Pearson. At the 2007 Township reorganization meeting, Johnson voted for the consent agenda that included the appointment of Technicon as the Township Engineer and Code Enforcement Officer. Johnson's spouse was a Technicon employee in 2007. Johnson addressed his conflict of interest and indicated he was voting because there were only two Supervisors present. The stipulated Fact Findings indicate that at a time when Mrs. Johnson was a Technicon employee, Johnson, as a Supervisor, participated in approving the payment of bills submitted to the Township by Technicon for serving as the Township Engineer and Code Enforcement Officer. There is no indication in the stipulated Fact Findings that Johnson noted a conflict of interest as to votes to approve payments to Robert Pearson or Technicon. However, based upon the Consent Agreement, it would appear that the parties recognize that such occurred. The stipulated Fact Findings do not specifically address whether Johnson filed any written memoranda disclosing the nature of his conflict of interest prior to voting to award the aforesaid contracts to Robert Pearson or Technicon or to approve payments to said businesses. However, based upon the Consent Agreement, it would appear that the parties are in agreement that such did not occur. Although the failure of a public official /public employee to file a written memorandum disclosing the nature of his conflict of interest prior to the vote being taken would ordinarily be reviewed in the context of a violation of Section 1103(j) of the Ethics Act, 65 Pa.C.S. § 1103(j), the parties, as part of the overall settlement of this case, have agreed to recommend that Johnson's failure to file such memoranda prior to voting be treated as a violation of Section 1103(a) of the Ethics Act. We recognize that when a Consent Agreement is negotiated, there is a give and take by both sides as part of the negotiation process. Therefore, we shall accept the parties' recommendation. We note that this determination in this case based upon the agreement of the parties should not be considered as precedent for other cases, which would be determined based upon their Johnson, 07 -077 Page 18 own facts and circumstances. Accordingly, we hold that a technical violation of Section 1103(a) of the Ethics Act occurred in relation to Johnson participating in discussions and actions of the Board resulting in contracts being awarded to Robert Pearson and participating in approving payments issued to Robert Pearson in calendar years 2005 and 2006, when he failed to file the necessary abstention memorandum. We further hold that a technical violation of Section 1103(a) of the Ethics Act occurred in relation to Johnson participating in discussions and actions of the Board resulting in contracts being awarded to Technicon and participating in approving payments issued to Technicon in calendar year 2007, when he failed to file the necessary abstention memorandum. We determine that the Consent Agreement submitted by the parties sets forth the proper disposition for this case, based upon our review as reflected in the above analysis and the totality of the facts and circumstances. IV. CONCLUSIONS OF LAW: 1. As a Supervisor for Honey Brook Township ( "Township ") from approximately 1985 until 1997, and from January 2000 to the present, Respondent Donald Johnson ( "Johnson ") has been 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. No violation of Section 1103(a) of the Ethics Act occurred in relation to Johnson participating in discussions and actions of the Board resulting in contracts being awarded to Robert R. Pearson, Inc. and participating in approving payments issued to Robert R. Pearson, Inc. during calendar year 2003 when he was not associated with that business. 3. A technical violation of Section 1103(a) of the Ethics Act occurred in relation to Johnson participating in discussions and actions of the Board resulting in contracts being awarded to Robert R. Pearson, Inc. and participating in approving payments issued to Robert R. Pearson, Inc. in calendar years 2005 and 2006, when he was associated with that business and he failed to file the necessary abstention memorandum. 4. A technical violation of Section 1103(a) of the Ethics Act occurred in relation to Johnson participating in discussions and actions of the Board resulting in contracts being awarded to Technicon Enterprises, Inc. 11 and participating in approving payments issued to Technicon Enterprises, Inc. 11 in calendar year 2007, when his spouse was associated with that business and he failed to file the necessary abstention memorandum. In Re: Donald Johnson, Respondent ORDER NO. 1493 File Docket: 07 -077 Date Decided: 9/22/08 Date Mailed: 10/10/08 1 Donald Johnson ( "Johnson "), a public official in his capacity as a Supervisor for Honey Brook Township ( "Township ") from approximately 1985 until 1997 and from January 2000 to the present, did not violate Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), in relation to participating in discussions and actions of the Township Board of Supervisors ( "Board of Supervisors ") resulting in contracts being awarded to Robert R. Pearson, Inc. and participating in approving payments issued to Robert R. Pearson, Inc. during calendar year 2003 when he was not associated with that business. 2. A technical violation of Section 1103(a) of the Ethics Act occurred in relation to Johnson participating in discussions and actions of the Board of Supervisors resulting in contracts being awarded to Robert R. Pearson, Inc. and participating in approving payments issued to Robert R. Pearson, Inc. in calendar years 2005 and 2006, when he was associated with that business and he failed to file the necessary abstention memorandum. 3. A technical violation of Section 1103(a) of the Ethics Act occurred in relation to Johnson participating in discussions and actions of the Board of Supervisors resulting in contracts being awarded to Technicon Enterprises, Inc. II and participating in approving payments issued to Technicon Enterprises, Inc. II in calendar year 2007, when his spouse was associated with that business and he failed to file the necessary abstention memorandum. BY THE COMMISSION, Louis W. Fryman, Chair