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HomeMy WebLinkAbout1507 HimmelbergerIn Re: David Himmelberger, 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 -109 Order No. 1507 3/12/09 3/27/09 This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding possible violation(s) 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. Himmelberger, 07 -109 Page 2 I. ALLEGATIONS: That David Himmelberger, a public official /public employee in his capacity as a Supervisor for Penn Township, Berks County, violated Sections 1103(a) and 1103(f) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. § §1103(a) and 1103(f), when a business with which he is associated, David Himmelberger Construction, entered into contracts with the Township in excess of $500.00 without an open and public process; when he participated in discussions and actions of the Board of Supervisors to enter into contracts with his company and when he subsequently participated in actions of the Board of Supervisors to issue payments to his company including approving bills lists which included payments to Himmelberger Construction and signing checks issued to David Himmelberger Construction. II. FINDINGS: 1. David Himmelberger has served as a Supervisor of Penn Township, Berks County since approximately September 19, 2006. a. Himmelberger has served as Vice - Chairman of the Board since January 2008. 2. Penn Township is a second class Township governed by a three (3) member Board of Supervisors. a. David Himmelberger, Kyle Loder, and Sarah Mathias currently serve as the Township's Board of Supervisors. 1. Todd Leonhard served as a member of the Board from 2001 through 2007 and was replaced by Mathias. b. Penn Township Supervisors are elected to six (6) year terms. 3. As a member of the Board of Supervisors for Penn Township, David Himmelberger is responsible for duties and responsibilities, including, but not limited to, the following: a. Attend monthly Board of Supervisors meetings. b. Attend workshop meetings. c. Approve expenditures of Township funds. d. Sign Township checks for bills. 4. Penn Township holds one public Board of Supervisors meeting per month. a. Board of Supervisors meetings are held the last Monday of the month. b. Public workshop meetings are held once a month on an as needed basis, the week prior to the Board of Supervisors meeting. 5. Minutes from the Penn Township Board of Supervisors meetings reflect that the following generally occurs at a public meeting: a. The minutes from the previous meeting or meetings are approved. b. The bills are presented and approved for payment. Himmelberger, 07 -109 Page 3 c. Unfinished business is heard, discussed, and voted upon. d. New business is heard, discussed and voted upon. e. Public comment is heard. f. The Engineer's report is given. g. The Solicitor's report is given. 6. The bills are presented by way of list, which is prepared monthly, and presented to the Board of Supervisors for approval. a. The bill lists are prepared by Sharon D. Harrison, Township Secretary /Treasurer and Manager. b. Harrison prepares the bill list and checks for payment. 1. The invoices and checks are attached to the bill list for review by the Board of Supervisors. 2. Prior to 2007, the invoices were not attached to the bill list for review by the Board of Supervisors. c. The bill list is reviewed by [the] Board of Supervisors either prior to or during the public meeting. d. The Board of Supervisors vote to approve the bill list by way of a single motion. 1. If all members vote to approve the payment of the bills, the minutes will reflect that the motion was unanimously carried. 2. If there is a less than unanimous vote, the minutes will reflect individual votes. 7 Township checks are prepared by Harrison and are signed by the Supervisors once the bills are approved for payment during the monthly Board of Supervisors Meeting. a. Since 2007, all township checks must be signed by Harrison and two (2) members of the three (3) member Board of Supervisors. 1. Prior to approximately 2007, only one Supervisor's signature was required on Township checks in addition to Harrison's. 2. Prior to 2007, it was common practice for the Township Supervisors to sign checks in advance for the Township Manager /Secretary/ Treasurer to disburse as needed. b. All three (3) Supervisors have the authority to sign Township checks. c. Supervisors may sign checks between public Board of Supervisors meetings if needed. 1. The bills are then reviewed and approved during the next public Himmelberger, 07 -109 Page 4 meeting. 8. The Township procedures for purchasing goods and services include the following: a. Roadmaster Loder is authorized to purchase goods and services up to $200.00 without Board approval. b. Township Manager Harrison is authorized to make purchases up to $2,000.00. c. Purchases between $2,000.00 and $4,000.00 must be authorized by the Board of Supervisors. d. Purchases between $4,000.00 and $10,000.00 require obtaining quotes. e. Purchases over $10,000.00 require competitive sealed bids. 9. Kyle Loder serves as a Township Supervisor and Roadmaster. a. Loder has been a full -time Township employee for approximately 14 years. b. Loder has served as the Roadmaster and a Township Supervisor since approximately January 2006. c. As Roadmaster, Loder is authorized to make purchases up to $200.00. 10. Loder's duties as Roadmaster include contacting local companies to obtain prices /quotes for the goods and services costing up to $200.00. a. Loder contacts companies on an as needed basis to provide services /goods for the Township. b. Generally, the types of services authorized by Loder include hauling of antiskid and /or other materials and the rental of equipment not owned by the Township. 11. Professionally, David Himmelberger is the owner of Dave Himmelberger Construction, Inc. (DHC). 12. Articles of Incorporation on file with the Pennsylvania Department of State reflect David Himmelberger Construction, Inc. was incorporated on June 8, 1995, with its registered office as R.D. #3, Box 116, Bernville, PA 19506. a. On June 15, 1995, the registered address was changed to 7 Zerbe Drive, Bernville, PA 19506. b. On June 23, 1995, the name of the company was changed to Dave Himmelberger Construction, Inc. c. David B. Himmelberger is listed as the sole officer, director, and shareholder for Dave Himmelberger Construction, Inc. d. Dave Himmelberger Construction has approximately 5 -10 employees depending on the time of year. 13. Dave Himmelberger Construction, Inc. is a custom home building business DATE INVOICE NO. AMOUNT DESCRIPTION OF WORK 09/30/1991 N/A $5,894.26 Roof quote, labor, and supplies. 11/4/2002 863 $4,975.00 First payment, 1/2 due for office and meeting room make over. 1/13/2003 880 $4,975.00 Balance due for office and meeting room make over. 1/13/2003 881 $3,648.00 Cabinets and countertops installation. 1/13/2003 882 $848.00 Building and installation of cabinets. 4/1/2003 901 $528.66 Installation of heating unit. 8/12/2003 938 $150.00 Labor and materials to check roof. 11/26/2003 997 $101.37 Labor and materials to repair shingle damage. 4/28/2005 1158 $1,206.88 Miscellaneous labor and materials to install TV cable and repairing shingles. 4/25/2006 1321 $290.91 Hauling of Antiskid and other miscellaneous work for the township. 5/30/2006 1338 $90.00 Hauled stone on 5/22/2006 to Ridge Drive. 7/28/2006 1359 $210.00 Hauling of the stone on 7/13/06 and 7/17/06. Himmelberger, 07 -109 Page 5 specializing in new home construction, remodeling, and excavating. a. Other services offered by the business include loading and hauling stone, fill, and other materials to and from the job sites. b. Dave Himmelberger Construction, Inc. utilizes the following pieces of equipment during the normal course of business activities: • Small Single Axle Dump Truck • Large Single Axle Dump Truck • Tandem Axle Dump Truck • Tri -Axle Dump Truck • Skid Loader with Attachments • John Deere with Brush Hog • John Deere 310 Backhoe • John Deere 655 Loader • John Deere 160 Trackhoe 14. Dave Himmelberger Construction (DHC) has provided services to Penn Township since approximately the late 1980's or early 1990's. a. Himmelberger's work for Penn Township predated his tenure on the Board of Supervisors. b. Himmelberger's prior work for Penn Township included roofing, remodeling of the shop lunch room (approximately 15 -20 years ago), and hauling services. c. Beginning in or about April 2006, Township Roadmaster Loder began utilizing DHC to haul antiskid material and stone for the township. 1. Loder began Roadmaster duties in January 2006. 15. Business records of Dave Himmelberger Construction, Inc., confirm work completed for Penn Township totaling $22,918.08 between 1991 and July 2006 as noted below: Himmelberger, 07 -109 Page 6 16. Dave Himmelberger Construction, Inc.'s business relationship with Penn Township continued after Himmelberger took a seat on the Township's Board of Supervisors in September 2006. a. Work/services provided by DHC included loading and hauling of fill, hauling antiskid, hauling stone, and providing equipment for a reconstruction project of South Garfield Road. b. DHC did not initiate any contracts with the Township. 1. All work performed by DHC was initiated by Roadmaster Kyle Loder. 2. Loder would contact Himmelberger requesting rates and availability of equipment for use on Township projects. aa. Loder would also contact other companies with similar equipment seeking quotes and has authorized the use of other vendors. 3. Loder, as a Supervisor and Roadmaster, has sought verbal quotes prior to authorizing work by DHC or any vendor. 17. Penn Township never formally solicited bids from or awarded any contracts to, Dave Himmelberger Construction, Inc. or any other company if the cost of the work was less than $10,000. a. Supervisor /Roadmaster Kyle Loder verbally requested prices for hauling and equipment rental from Dave Himmelberger Construction, Inc. 1 Loder also solicited quotes for hauling and equipment rental from other vendors in the area. b. David Himmelberger was the company representative who provided Loder with price quotes. c. There were no votes by the Board of Supervisors to authorize work performed by Dave Himmelberger Construction, Inc. or other vendors for hauling or equipment rental prior to work being performed. 18. Between November 2006 and July 2007, Dave Himmelberger Construction, Inc. also performed general hauling work for the Township and services in relation to the reconstruction of a portion of South Garfield Road. a. The bulk of the services provided by DHC was for the hauling of antiskid material and stone. b. DHC also provided a tri -axle dump truck and trackhoe for Township use doing the repairs to South Garfield Road. 19. In 2006 and 2007, as the Township Roadmaster, Loder would obtain prices from companies to haul antiskid and stone to the Township building. 20. On various occasions prior to September 2006, Penn Township used both D.A.T. Excavation Construction Company and DHC for the hauling of stone, antiskid, and other materials needed for the Township. a. D.A.T. Excavation Construction Company was used 4 times since 2006. EQUIPMENT 2006 RATES 2007 RATES 2008 RATES Small axle dump truck $55.00 $60.00 $65.00 Large single axle dump truck $60.00 $65.00 N/A Tandem axle dump truck $65.00 $70.00 N/A Tri -axle dump truck $70.00 $75.00 $80.00 Skid loader with attachments $55.00 $60.00 $65.00 John Deere with brush hog $55.00 $60.00 N/A John Deere 310 backhoe $70.00 $75.00 $80.00 John Deere 655 loader $100.00 $105.00 $105.00 John Deere 160 trackhoe $100.00 $105.00 $105.00 Move equipment $75.00 $80.00 $80.00 Manual labor $35.00 $40.00 $45.00 Himmelberger, 07 -109 Page 7 b. Loder authorized the use of DHC more frequently than D.A.T. due to DHC's lower rates for such services. 1. DHC discounted the rates it charged the township by $10.00 to $15.00 per hour. aa. For the use of a tri -axle dump truck for hauling antiskid material, DHC charged the Township a rate of $60.00 /hour in 2007, while [its] standard rate was $75.00 /hour. 2. The decision to use DHC was made by Roadmaster Loder after obtaining quotes from both DHC and D.A.T. c. Loder also favored DHC because he believed the Township was getting more accurate billing due to DHC's method of billing. 1. DHC's equipment has key fobs used to track hours worked so that the customer is only charged for the amount of time a piece of equipment was actually used on a particular project. 2. D.A.T. charges per hour regardless of the portion of the hour that may not have been used. 21. Dave Himmelberger Construction, Inc. charged the following standard rates for equipment /hauling between 2006 and 2008: a. Dave Himmelberger Construction, Inc. provided Penn Township with a discount of ten (10) to fifteen (15) dollars off [its] regular hourly rates. 22. D.A.T.'s rates for equipment /services provided to Penn Township included the following: a. Equipment Case Loader, Backhoe, Extend Hoe (580 Super L) 943 Caterpillar Track Loader 1985 International 10 wheel dump truck 1999 Tag along trailer 1994 Kenworth Truck/Tractor Detachable Gooseneck Trailer Rate 85.00 - $88.00 per hour $110.00- $115.00 per hour $75.00 per hour Rate included in equipment rates Rate included in equipment rates Rate included in equipment rates 23. Since September 2006, when Penn Township needed antiskid or stone hauled, Roadmaster Kyle Loder would contact DHC and D.A.T. for the current rates and would use the company with the best rate. DATE OF INVOICE INVOICE DESCRIPTION OF WORK INVOICE NO. AMOUNT 12/19/06 1410 $1,994.30 Total Trackhoe time $15.62 x 85.00 /hr Total Tri -Axle time $11.11 x $60.00 /hr 12/11/07 1551 $6,368.10 160 Trackhoe with ripper 33.79 hrs at $90.00 /hr 655 Trackloader 21.3 hrs at $90.00 /hr Tri -Axle dump truck 23.50 hrs at $60.00 /hr 04/17/07 1469 $236.58 Hauling 23 tons of stone to the Township building ($70.80) and for 23 tons of PennDOT 2A stone ($165.78). 01/30/07 1434 $120.00 Hauling of 45 tons of antiskid to the Township building during two (2) hauling loads. Himmelberger, 07 -109 Page 8 a. Loder would contact Himmelberger and D.A.T. directly for price quotes. b. Quotes received by Loder were not provided to the Board of Supervisors for review and approval. c. Neither Loder nor Himmelberger believed that the quotes less than $4,000.00 required prior Board approval. 24. From September 2006 to present, Dave Himmelberger Construction, Inc. submitted nine (9) invoices totaling approximately $17,075.34 for materials, labor and /or hauling services provided by the company to the Township. a. Dave Himmelberger was the point of contact at Dave Himmelberger Construction, Inc. to initiate the work. b. Supervisor /Roadmaster Kyle Loder was the Township representative who contacted Himmelberger to initiate the work. c. The work consisted of general work for road maintenance, winter road care, and work related to a Dirt and Gravel Road Grant (South Garfield Road). 25. Invoices from Dave Himmelberger Construction, Inc. to Penn Township include charges for services provided by the company along with charges for any products obtained by the company to complete the project. a. Himmelberger charged Penn Township for all products on the invoices at the actual cost they were billed to his company. b. Invoices are itemized by the periods of time when services were provided. 1. Invoices include charges for services provided on multiple days. c. All services provided by DHC came as a result of quotes solicited by Loder. d. Himmelberger was a member of the Board of Supervisors when work was authorized for his company by Loder. 1. Himmelberger also was physically performing some of the labor on behalf of Dave Himmelberger Construction, Inc. 26. Between 2006 and 2007, Himmelberger submitted invoices for work including, but not limited to: hauling and loading of shale, antiskid, and stone for Penn Township. 02/07/07 1438 $176.40 Haul 22.35 tons of antiskid to Township building on February 1, 2007, $63.60 Haul 46 tons of antiskid to Township building on February 7, 2007, $112.80 02/27/07 1450 $141.00 Hauling of 45 tons of antiskid to the Township building. 03/26/07 1462 $60.00 Hauling of 22.75 tons of antiskid to the Township building. 12/31/07 1560 $12.80 2.03 hours of hauling antiskid to the Township [sic] building at $60.00 /hr Himmelberger, 07 -109 Page 9 27. In or about November 2006, Himmelberger advised Loder that he had available to him, a large quantity of shale that could be used for repairs to Township roads. a. Himmelberger's company was building a home on Grange Road and the owners wanted a large quantity of shale removed from the site in order to have a suitable location for the home. b. The owners of the property advised Himmelberger that he could have the shale at no cost. c. Himmelberger informed Loder of the availability of the shale for use on Township roads as a result of informal discussions among members of the Board of Supervisors of the need for material to repair and maintain dirt roads in the township. 1. The Township would be responsible for the shale removal. 28. Penn Township began removal of the shale from Grange Road on or about November 21, 2006. a. Township trucks were being used to haul the shale to a Township site. 1. A DHC trackloader was used to load the Township trucks. aa. The Township did not have the necessary equipment to dig the shale and load the trucks. b. Dave Himmelberger Construction, Inc.'s trackhoe was to be used to load the Penn Township trucks. 1. One of the Township trucks broke down during the hauling, and as a result, the Township trucks could not keep up with the Dave Himmelberger Construction, Inc. employees loading the trucks. c. Loder asked Himmelberger if DHC had a truck available to make the job more efficient. 1. A Dave Himmelberger Construction, Inc. truck was made available and added to the job. 2. Loder was aware from prior quotes that rates charged by DHC were lower than D.A.T. for the use of a tri -axle dump truck for transporting shale. Himmelberger, 07 -109 Page 10 aa. DHC charged $60.00 /hour while D.A.T. rates were $75.00 /hour. 29. On December 19, 2006 *, Dave Himmelberger Construction submitted invoice no. 1410 to Penn Township in the amount of $1,994.30 for hauling and equipment rental services related to shale removal for the time period of November 21, 2006, through December 1, 2006. a. Invoice Date Invoice Amount Description 12/19/06* $1,994.30 Total Trackhoe time 15.62 hrs x 85.00 /hr Total Tri -Axle time 11.11 hrs x $60.00 /hr b. Included with invoice no. 1410 is a time by job detail report," which reflects that Himmelberger operated the trackhoe for 2 hours of the total time. *[Cf., Fact Findings 30 and 30 b. Although the invoice was dated December 19, 2006, it appears that the invoice was submitted to the Township prior to December 19, 2006.] 30. Invoice no. 1410 was approved for payment by the Penn Township Board of Supervisors by a 3 -0 vote on December 18, 2006, with Himmelberger participating in the vote. a. Invoice no. 1410 was included as part of a listing of bills approved by the Board. b. Township check no. 3604 was issued to DHC on December 18, 2006, in the amount of $1,994.30. 1. Himmelberger did not sign check no. 3604 as an authorized township signature. 31. DHC again removed shale from the Grange Road site in October 2007. a. Work was authorized by Roadmaster Kyle Loder. b. There was no vote of the Board of Supervisors. 32. On December 11, 2007, Dave Himmelberger Construction, Inc. submitted invoice no. 1551 to Penn Township for the time period of October 9, 2007, through October 17, 2007, for the removal, loading of trucks, and hauling of shale from the Grange Road property in Bern Township to various sites in Penn Township for future road projects. a. Invoice Date Invoice Amount Description 12/11/07 $6,368.10 160 Trackhoe with ripper 33.79 hrs at $90.00 per hour, total $3,041.10 655 Trackloader 21.3 hrs at $90.00 per hour, total $1,917.00 Tri -Axle dump truck 23.50 hrs at $60.00 per hour, total $1,410.00 b. The work was authorized by Loder after discussions with Himmelberger when Loder approved DHC doing the work. c. No bids were submitted by Dave Himmelberger Construction, Inc. for this work. Himmelberger, 07 -109 Page 11 1. Loder was aware of rates for such work from D.A.T. and DHC prior to authorizing DHC. d. No vote of the Board of Supervisors was taken to authorize the work. 33. Included with invoice no. 1551 is an "Activity Report," which details the following work completed by DHC: Equipment Dates Total Hours Loader 10/8/07 21.3 10/9/07 10/10/07 Trackhoe 10/8/07 33.79 10/9/07 10/10/07 10/11/07 10/16/07 10/17/07 Tri -Axle 10/9/07 23.48 10/16/07 10/17/07 34. The invoice was approved for payment by the Penn Township Board of Supervisors by a 2 -0 vote, on December 19, 2007, with Himmelberger participating in the vote. a. There was no third Supervisor present at the December 19, 2007, Board of Supervisors meeting. b. Township check no. 4125 was issued to DHC on December 21, 2007, in the amount of $6,368.10. 35. Between January and March 2007, and December 2007, Penn Township needed antiskid material and stone for township roads. a. Roadmaster Kyle Loder contacted David Himmelberger for his company to haul stone from Berks Products to the Township building. b. Loder also considered using either D.A.T. or Berks Products for this hauling. 1. D.A.T. charged $75.00 /load while Berks Products charged $3.36 /ton delivery fee plus a fuel surcharge (approximately $75.00 /load based on 22.5 tons). 2. DHC rates were $60.00 - $70.00 per load. 36. Dave Himmelberger Construction, Inc. submitted invoice no. 1469 to Penn Township dated April 17, 2007, in the amount of $236.58.* a. The invoice included the following: 23 tons PennDOT 2A stone $165.78 Hauling fee $ 70.80 Total $235.58* Himmelberger, 07 -109 Page 12 b. Included with invoice no. 1469 is a "jobsite time report," which confirms a charge of 1.17 hours for use of a tri -axle dump truck. c. Berks Products submitted the bill for the stone ($165.78) to Dave Himmelberger Construction, Inc. instead of the Township. 1. Dave Himmelberger Construction, Inc. included the $165.78 cost of the stone on [its] invoice to the township. *[There is a minor disparity in these amounts, which does not affect the outcome of this case.] 37. Invoice no. 1469 was approved for payment by the Penn Township Board of Supervisors by a 3 -0 vote on April 30, 2007, with Himmelberger participating in the vote. a. Township check no. 3770 was issued to DHC on May 2, 2007, in the amount of $235.58. b. Himmelberger signed check no. 3770 as an authorized Township signatory. 38. During the winter months of 2006 and 2007, Penn Township had a need for antiskid material obtained to treat Township roads during bad weather. a. In or about January 2007, Roadmaster Kyle Loder contacted David Himmelberger of Dave Himmelberger Construction, Inc. when the antiskid was needed by the Township. 1. Loder was aware from price lists he maintains that DHC offered the Township a discount making DHC's prices lower than other vendors. b. DHC provided hauling from the supplier, Berks Products, to Penn Township. 39. Dave Himmelberger Construction, Inc. submitted invoice no. 1434 to Penn Township dated January 30, 2007, in the amount of $120.00 for the hauling of 45 tons of antiskid to the Township building. a. Included with invoice no. 1434 is a time by job detail report," which confirms that DHC charged the township for 2.0 hours for the use of a tri -axle dump truck on January 24, 2007. b. Attached to the invoice were two stone delivery tickets from Berks Products to Penn Township, confirming that two loads of stone totaling 45 tons was hauled. 1. Loder placed the order for the material with Berks Products. 2. The Township issued a separate payment to Berks products. 40. Invoice no. 1434 from DHC to the Township was approved for payment by the Penn Township Board of Supervisors by a 3 -0 vote on March 26, 2007, with Himmelberger participating in the vote. a. Township Check no. 3669 in the amount of $120.00 was received by Dave Himmelberger Construction, Inc. on February 8, 2007. 1. Himmelberger signed check no. 3669 as one of the Township's Himmelberger, 07 -109 Page 13 authorized signatories. 41. DHC hauled antiskid material for the Township in February and March 2007. a. DHC would be notified by Kyle Loder that material needed to be picked -up at Berks Products. 1. Loder would place orders and advise DHC of the amount to be picked -up and delivered to the Township. b. At the time Loder notified DHC of the pick -up, Loder was aware that DHC's rates were cheaper than other vendors in the area. 1. D.A.T.'s delivery rates were $75.00 /hour. 2. Berks Products delivery rates were $3.36 /ton plus a fuel surcharge. 42. On February 7, 2007, Dave Himmelberger Construction, Inc. submitted invoice no. 1438 to Penn Township in the amount of $176.40 for hauling of antiskid for the time period of February 1, 2007, through February 7, 2007. a. Invoice Date Invoice Amount Description 02/07/07 $176.40 Haul 22.35 tons of antiskid to Township Building on February 1, 2007, $63.60 Haul 46 tons (2 loads) of antiskid to Township Building on February 7, 2007 $112.80 b. The hauling was arranged by Loder who contacted Himmelberger. c. Included with the DHC invoice no. 1438 is an "activity report," which confirms the following: February 1, 2007: Tri -axle 1.06 hours February 7, 2007: Tri -axle 1.88 hours Total 2.94 hours d. Also included with the invoice were invoices from Berks Products to Penn Township for the products. 43. The DHC invoice (no. 1438) was approved for payment by the Penn Township Board of Supervisors by a 3 -0 vote on March 26, 2007, with Himmelberger participating in the vote. a Township check no. 3683 in the amount of $176.40 was issued to Dave Himmelberger Construction, Inc. on February 26, 2007. b. Himmelberger signed check no. 3683 as one of the Township signatories. 44. Dave Himmelberger Construction, Inc. submitted invoice no. 1450 to Penn Township dated February 23, 2007, in the amount of $141.00 for hauling of 45 tons of antiskid to the Township building. a. The hauling was arranged by Loder. b. Included with invoice no. 1450 is a "timecard report," which confirms use of a tri -axle dump truck for 2.35 hours on February 20, 2007. Himmelberger, 07 -109 Page 14 c. Attached to invoice no. 1450 were invoices from Berks Products to Penn Township, for the cost of the antiskid material. 1. The Township paid that bill separate from the DHC bill. 45. Invoice no. 1450 was approved for payment by the Penn Township Board of Supervisors by a 3 -0 vote on March 26, 2007, with Himmelberger participating in the vote. a. The bill was approved as part of a bill listing. b. Township Check no. 3700 was issued to Dave Himmelberger Construction, Inc. on March 17, 2007, in the amount of $141.00. c. Himmelberger signed check no. 3700 as one of the Township signatories. 46. Dave Himmelberger Construction, Inc. submitted invoice no. 1462 to Penn Township dated March 26, 2007, in the amount of $60.00 for the hauling of 22.75 tons of antiskid to the Township Building. a. The work was arranged by Loder, who contacted Himmelberger. b. Included with invoice no. 1462 is a "job site time report," which confirms 1.01 hours of hauling a tri -axle dump truck on March 15, 2007. c. Attached to the invoice were invoices from Berks Products to Penn Township, which were paid by the Township by separate check. 47. Invoice no. 1462 was approved for payment by the Penn Township Board of Supervisors by a 3 -0 vote on April 30, 2007, with Himmelberger participating in the vote. a. The invoice was part of a listing of bills approved by the motion. b. Township Check no. 3737 was issued to Dave Himmelberger Construction, Inc. on April 5, 2007. c. Himmelberger signed the check as a Township Supervisor authorizing payment. 48. Dave Himmelberger Construction, Inc. submitted invoice no. 1560 to Penn Township dated December 31, 2007, in the amount of $121.80. a. The invoice was for 2.03 hours of hauling antiskid to the Township Building at $60.00 per hour on December 14, 2007. b. The hauling was authorized by Loder who contacted Himmelberger. c. Attached to the invoice were invoices from Berks Products to Penn Township, for the material. 49. Invoice no. 1560 was approved for payment by the Penn Township Board of Supervisors by a 2 -0 -1 vote on January 28, 2008, with Himmelberger participating in the vote. a. Supervisor Sarah Mathias abstained, as she was not a Supervisor in Himmelberger, 07 -109 Page 15 December 2007. b. Township Check no. 4147 was issued to Dave Himmelberger Construction, Inc. on January 24, 2007. 1. The date was incorrect[ly] noted as 2007 and should have been marked as January 24, 2008. THE FOLLOWING FINDINGS RELATE TO THE ALLEGATION THAT DHC PROVIDED SERVICES IN EXCESS OF $500.00 WITHOUT PUBLIC BID IN RELATION TO THE DIRT AND GRAVEL ROAD GRANT RECEIVED BY PENN TOWNSHIP AND [THAT RESPONDENT] VOTED TO ISSUE PAYMENTS TO DHC. 50. On April 17, 1997, the PA General Assembly approved House Bill 67 as amended, the Transportation Revenue Bill, which was signed into law as Act 3 of 1997. a. Included in this law is $5 million annually earmarked for Dirt and Gravel Roads Maintenance. 1. $4 million goes directly to the State Conservation Commission for distribution to County Conservation Districts. 2. $1 million goes to the Department of Conservation and Natural Resources for maintenance on state forestry roads. 51. The law was enacted to provide funding for the maintenance of the twenty -eight thousand miles of unpaved roads for Pennsylvania's rural residents and the major enterprises of agriculture, tourism, mining /mineral industries, and forest products. a. If not properly maintained, these roads can become sources of runoff and pollution to neighboring streams and waterways. b. Members of Pennsylvania Trout raised concerns over problems caused by sediment pollution from unpaved roads in the State's premier trout streams. 52. In January 2001, the Center for Dirt and Gravel Road Studies was established at Penn State University. a. The Center works closely with the State Conservation Commission, Conservation Districts, Quality Assurance Boards, and local municipalities to research improved maintenance techniques, provide "hands -on" technical assistance and training, appropriate maintenance practices and products, and broaden the impact of this pollution prevention effort. b. The State Conservation Commission apportions Dirt and Gravel Road Maintenance funds to the County Conservation Districts. 1. A Quality Assurance Board (QAB) has been created in Berks County by the Berks County Conservation District to establish and administer the grant program. 2. The QAB is responsible to encourage local cooperation with environmental quality goals, to provide adequate opportunity for public input, and to ensure participation amongst a wide spectrum of environmental expertise at all levels of government. 53. Local municipalities and state agencies responsible for maintaining dirt and gravel Himmelberger, 07 -109 Page 16 roads are eligible to receive funding. a. To be eligible for the program, the participant must first attend a two -day training session for "Environmentally Sensitive Maintenance of Dirt and Gravel Roads." b. To request funding, applicants submit a one -page application to the local Quality Assurance Board (QAB). 1. The QAB, in turn, reviews the applications. 2. To ensure equal access to the funds, the QAB establishes local priorities to prevent pollution. 3. To be eligible, projects must employ "environmentally sound" maintenance practices and products to correct pollution problems related to the roadway. 54. Once a grant has been awarded, the project participant is generally given 50% of the grant amount to begin the project and 50% of the grant is held by the Conservation District and QAB until the QAB and /or Conservation District staff has conducted a final inspection of the project. a. Once the project is completed and the QAB and Conservation District has determined that the project was completed in an environmentally sound way and according [to] the program guidelines, the remainder of the money is then awarded to the project participant. 55. In or around the latter part of 2006, the Penn Township Board of Supervisors informally discussed seeking funding from Dirt and Gravel Road Maintenance Programs. a. b. Loder took the required "Environmentally Sensitive Maintenance of Dirt and Gravel Roads" training in or about October 2003. No formal vote of the Board occurred regarding applying for funding. 56. On or about March 30, 2007, Supervisor /Roadmaster Kyle Loder submitted a Dirt and Gravel Roads Grant Application to the Berks County Conservation District seeking funding for repairs to South Garfield Road in Penn Township. a. Loder signed as the applicant from Penn Township. b. The application sought funding for work being complet[ed] on the dirt road portion of South Garfield Road including filling in eroded ditches and road banks, installing adequate cross pipes, and stabilizing the road. 57. The application filed by Penn Township lists total expected costs for the projects as follows: Grant Requested In -Kind Contributions Total project value a. In -kind contributions included the following: Materials $32,280.00 $17,236.00 $49,516.00 Equipment Labor Himmelberger, 07 -109 Page 17 Shale $2,000.00 Backhoe $1,576.00 (Township) $7,200.00 Fuel $1,500.00 Truck $4,960.00 b. Other project expenditures included the following: Materials Equipment Shale $2,000.00 Trackloader $4,000.00 5" BPSB $2,520.00 Dozer $3,720.00 8" BPSB $400.00 Excavator $2,500.00 ZRC $1,600.00 Excavator (with op) $4,000.00 Fabric /Staples $1,000.00 Tri -Axle $6,000.00 Flagstone $750.00 Roller $3,790.00 c. The Berks County Conservation District assisted Loder with preparing estimates. d. Loder obtained quotes for the amount of shale based on the cost the Township would pay if actually purchasing the material. 58. On April 18, 2007, Penn Township was notified in writing by the Berks County Conservation District that Penn Township was awarded a grant in the amount of $32,280.00. a. The letter was directed to Supervisor Kyle Loder. b. Attached to the letter was a Dirt and Gravel Road Maintenance Project Agreement. 59. The Dirt and Gravel Road Maintenance Project Agreement (Agreement) between the Township and the BCCD included the following: a. The Conservation District agrees to fund the eligible costs for this project in an amount up to, but not to exceed $32,280.00. b. The Agreement provides that the Township will provide an in -kind contribution in the amount of $17,236.00. c. The project participant shall ensure that this contract and all other arrangements entered into pursuant to the implementation of this contract are in conformance [with] all applicable local, state, and federal laws, rules and regulations. 60. Attachment C of the "Agreement" contains General Contract provisions which include a conflict of interest clause (Section F) as follows: a. Interest of members of the Commonwealth and others — No officer, Member, or employee of the Commonwealth who exercises any function or responsibilities under this Agreement, shall participate in any decision relating to this Agreement which affects his personal interest of [sic] the interest of any corporation, partnership, or association in which he is directly or indirectly interests [sic]; nor shall any such officer, member, or employee of the Commonwealth, and no member of its governing body, have any interest, direct or indirect, in this Agreement or the proceeds thereof. b. Interest of Contractor — The Contractor covenants that is [sic] presently has no interest and shall not acquire any interest, direct or indirect, which would Himmelberger, 07 -109 Page 18 conflict in any manner of [sic] degree with the performance of its services hereunder. The contractor further covenants that in the performance of this Agreement, it shall not knowingly employ any person having such interest. Contractor further certifies that no member of the Board of Directors of the Contractor or any of its officers have such adverse interest. c. Contractor in these provisions refers to Penn Township. 61. The minutes from the April 18, 2007, Penn Township Board of Supervisors meeting confirm that the Board discussed the Agreement between Penn Township and the Berks County Conservation District regarding the grant for the road maintenance project on the dirt road portion of South Garfield Road. a. Himmelberger was part of the 3 -0 vote that approved the Dirt and Gravel Road contract for the road maintenance project on South Garfield Road. b. On May 3, 2007, Sharon Harrison, Township Manager sent the fully executed contract between Penn Township and Berks County Conservation District to Bryon Ruhl of Berks County Conservation District. 1. The executed contract was signed on April 30, 2007, by Kyle P. Loder, Chairman, Board of Supervisors, and on April 25, 2007, by Glenn R. Seidel of Berks County Conservation District. 62. At the time he voted to approve the Agreement, Himmelberger's Company, DHC, had performed services in relation to providing materials (shale) and equipment in relation to the road project. a. DHC had hauled shale to the South Garfield Road site in November 2006. (Finding Nos. 27 -29). 63. Penn Township served as the Contractor for the project as most of the labor and equipment was provided by the Township. a. In cases where the Township need[ed] another provider for a specific job, Roadmaster Kyle Loder contacted companies for the work to be completed. 64. Companies used by Penn Township for the South Garfield Road project included the following: Company Equipment Cost Plasterer or Equipment OT Bucket $210.00 Rental Company 30 "C & P 120C Bucket JD Excavator $3,800.00 Soil Roller $3,370.00 JD Dozer 650T $2,640.00 S.E.I. JD Tractor w /TR350C $633.33 Mower Tiger 6640 w /Boom $2,145.00 Flat mower D.A.T. Excavating 943 Trackloader $4,995.00 10 Wheel Dump Truck $2,430.00 Himmelberger, 07 -109 Page 19 DHC Bern Township Tri -axle Dump Truck $6,348.20 Trackhoe Grader $480.00 65. From approximately April 10, 2007, through July 2007, Dave Himmelberger Construction, Inc. provided equipment, employees, and materials needed for Penn Township to complete the project. a. DHC billed Penn Township in August 2007, once the project was completed for services related to shale hauling. 66. All services provided by DHC were not public[ly] bid or advertised. a. All work was authorized by Roadmaster /Supervisor Kyle Loder. 67. On August 9, 2007, Dave Himmelberger Construction, Inc. submitted invoice no. 1514 to Penn Township in the amount of $7,857.16 for equipment and materials supplied from the South Garfield Road project for the time period of April 10, 2007, through July 16, 2007. a. Invoice Date Invoice Amount Description 08/09/07 $6,348.20 South Garfield Road Project: All tri -axle trucking and trackhoe loading of fill and stone for the entire project to date Berks Products $1,508.96 stone bills Total $7,857.16 b. No bids were submitted by Dave Himmelberger Construction, Inc. for the work. 68. Included with invoice no. 1514 were three (3) "Activity Reports," which reflect work performed by employees of DHC utilizing a trackhoe and tri -axle dump truck as follows: Equipment Dates of Use Total Hours Trackhoe 4/10/07, 4/11/07 30.85 5/2/07, 5/3/07 5/15/07, 5/17/07 5/22/07, 5/23/07 Tri -axle 5/3/07, 5/17/07 52.62 Dump Truck 7/9/07, 7/10/07 7/11/07, 7/12/07 7/13/07, 7/16/07 5/23/07 69. Also included with invoice no. 1514 were invoices from Berks Products to Dave Himmelberger Construction, Inc. for materials used on [the] Penn Township South Garfield Road Project. a. Dave Himmelberger Construction, Inc. passed on the actual cost of the stone, $1,508.96, to the Township. 70. Invoice no. 1514 from DHC was approved for payment by the Penn Township Board of Supervisors by a 2 -0 vote, during the August 27, 2007, Board of Supervisors meeting, with Himmelberger participating in the vote. DATE OF CHECK CHECK NO AMOUNT MOTION MADE BY MOTION SECONDED BY HIMMELBERGER VOTES TO PAY BILL HIMMELBERGER SIGNS CHECK INVOICE NO 12/27/06 3604 $1,994.30 Leonhard Himmelberger Yes No 1410 02/08/07 3669 $120.00 Leonhard Himmelberger Yes Yes 1434 02/22/07 3683 $176.40 Leonhard Himmelberger Yes Yes 1438 03/14/07 3700 $141.00 Leonhard Himmelberger Yes Yes 1450 04/02/07 3737 $60.00 Himmelberger Loder Yes Yes 1462 04/30/07 3770 $236.58 Himmelberger Loder Yes Yes 1469 08/09/07 3928 $7,857.16 Loder Himmelberger Yes Yes 1514 12/19/07 4125 $6,368.10 Loder Himmelberger Yes Yes 1551 12/31/07 4147 $121.80 Himmelberger Loder Yes Yes 1560 Himmelberger, 07 -109 Page 20 a. Only two Supervisors were present at the August 27, 2007, Board of Supervisors meeting. 71. Township check no. 3928 was issued to DHC on August 11, 2007, in the amount of $7,857.16. a. Himmelberger signed check no. 3928 in his capacity as a Township Supervisor. 72. In his official capacity as a Penn Township Supervisor, Himmelberger approved payments for bills, and signed checks that were issued to his company, Dave Himmelberger Construction, Inc. totaling $17,075.34. a. The following chart illustrates actions taken by Himmelberger in approving payments to Dave Himmelberger Construction between December2006, and December 2007. 73. As a member of the Penn Township Board of Supervisors, Himmelberger approved payment on (9) occasions between December 2006 and December 2007 to his company, Dave Himmelberger Construction, Inc., during Penn Township Board of Supervisors meetings and signed eight checks issued to Dave Himmelberger Construction, Inc. as a Township Supervisor. III. DISCUSSION: As a Supervisor of Penn Township ( "Township "), Berks County, from approximately September 19, 2006, to the present, Respondent David Himmelberger, hereinafter also referred to as "Respondent," "Respondent Himmelberger," and "Himmelberger," 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 Respondent Himmelberger violated Sections 1103(a) and 1103(f) of the Ethics Act: (1) when a business with which he is associated, David Himmelberger Construction, entered into contracts with the Township in excess of $500.00 without an open and public process; (2) when he participated in discussions and actions of the Board of Supervisors ( "Board ") to enter into contracts with his company; and (3) when he subsequently participated in actions of the Board to issue payments to his company including approving bills lists which included payments to Himmelberger Construction and signing checks issued to David Himmelberger Construction. 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 Himmelberger, 07 -109 Page 21 65 Pa.C.S. § 1103(a). (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. Section 1103(f) of the Ethics Act imposes certain restrictions as to contracting: § 1103. Restricted activities (f) Contract. —No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. § 1103(f). Himmelberger, 07 -109 Page 22 Section 1103(f) of the Ethics Act provides in part that no public official /public employee or his spouse or child or business with which the public official /public employee or his spouse or child is associated may enter into a contract with his governmental body valued at five hundred dollars or more or any subcontract valued at five hundred dollars or more with any person who has been awarded a contract with the governmental body with which the public official /public employee is associated unless the contract is awarded through an open and public process including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are set forth above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. Respondent has served as a Township Supervisor since approximately September 19, 2006. Respondent has served as Vice - Chairman of the Board since January 2008. The Board consists of three Members. Currently, Respondent, Kyle Loder ( "Loder "), and Sarah Mathias serve as Township Supervisors. Loder has served as both a Township Supervisor and as Township Roadmaster since approximately January 2006. Township bills are approved by the Board at public meetings through the approval of monthly bill lists. Sharon D. Harrison ( "Harrison "), Township Secretary /Treasurer and Manager, prepares the bill lists and checks for payment. All three Supervisors have the authority to sign Township checks. Prior to approximately 2007, Township checks required the signatures of Harrison and one Supervisor. Since 2007, Township checks have required the signatures of Harrison and two Supervisors. Township purchasing procedures include the following. As Roadmaster, Loder is authorized to purchase goods and services up to $200.00 without Board approval. Harrison is authorized to make purchases up to $2,000.00. Purchases between $2,000.00 and $4,000.00 must be authorized by the Board. Purchases between $4,000.00 and $10,000.00 require obtaining quotes. Purchases over $10,000.00 require competitive sealed bids. Respondent is the owner of a business named "Dave Himmelberger Construction, Inc." (DHC). Articles of Incorporation on file with the Pennsylvania Department of State list David B. Himmelberger as the sole officer, director, and shareholder of DHC. DHC has provided services to the Township since approximately the late 1980's or early 1990's. DHC's business relationship with the Township continued after Respondent became a Supervisor in September 2006. DHC did not initiate any contracts with the Township. All work performed by DHC for the Township was initiated by Loder. The Township never formally solicited bids from, or awarded contracts to, DHC or any other company if the cost of the work was less than $10,000. Loder sought verbal quotes prior to authorizing work by DHC or any vendor. Respondent was the DHC representative who provided Loder with price quotes. There were no votes by the Board to authorize work performed by DHC or other vendors for hauling or equipment rental prior to work being performed. On various occasions prior to September 2006, the Township used both D.A.T. Excavation Construction Company ( "D.A.T. ") and DHC for the hauling of stone, antiskid, and other materials needed for the Township. D.A.T. was used four times since 2006. The decision to use DHC was made by Loder after obtaining quotes from both DHC and D.A.T. Loder authorized the use of DHC more frequently than D.A.T. due to DHC's lower rates and method of billing. Himmelberger, 07 -109 Page 23 Since September 2006, when the Township needed antiskid or stone hauled, Loder would contact DHC and D.A.T. for the current rates and would use the company with the best rate. Loder would contact Respondent and D.A.T. directly for price quotes. Quotes received by Loder were not provided to the Board for review and approval. Neither Loder nor Respondent believed that quotes less than $4,000.00 required prior Board approval. From September 2006 to present, DHC submitted nine invoices totaling approximately $17,075.34 for materials, labor and /or hauling services provided by DHC to the Township. Respondent was the point of contact at DHC to initiate the work. Loder was the Township representative who contacted Respondent to initiate the work. All services provided by DHC came as a result of quotes solicited by Loder. In or about November 2006, Respondent advised Loder that he had available to him a large quantity of shale, located at a property on Grange Road, which could be used for repairs to Township roads. The Township would be responsible for the shale removal. The Township began removal of the shale on or about November 21, 2006. DHC equipment was used to load the shale onto Township trucks. Township trucks hauled the shale to a Township site. At Loder's request, a DHC truck also was added to the job when a Township truck broke down. Loder was aware from prior quotes that rates charged by DHC were lower than those of D.A.T. for the use of a tri -axle dump truck for transporting shale. DHC submitted to the Township invoice number 1410 in the amount of $1,994.30 for hauling and equipment rental services related to shale removal for the time period of November 21, 2006, through December 1, 2006. Invoice number 1410 was approved for payment by the Board by a 3 -0 vote on December 18, 2006, with Respondent participating in the vote. Township check number 3604 was issued to DHC on December 18, 2006, in the amount of $1,994.30. Respondent did not sign check number 3604 as an authorized Township signatory. In October 2007, DHC removed, loaded, and hauled shale for the Township. The work was authorized by Loder after discussions with Respondent. No bids were submitted by DHC for this work. Loder was aware of rates for such work from D.A.T. and DHC prior to authorizing DHC to do the work. On December 11, 2007, DHC submitted to the Township invoice number 1551 in the total amount of $6,368.10 for the time period of October 9, 2007, through October 17, 2007, for the work. Invoice number 1551 was approved for payment by the Board by a 2 -0 vote, on December 19, 2007, with Respondent participating in the vote. There was no third Supervisor present at the December 19, 2007, Board meeting. Township check number 4125 was issued to DHC on December 21, 2007, in the amount of $6,368.10. In 2007, the Township needed antiskid material and stone for Township roads. Loder contacted Respondent to have DHC haul antiskid and stone from the supplier, Berks Products, to the Township. DHC submitted to the Township invoice number 1434 dated January 30, 2007, in the amount of $120.00 for hauling antiskid to the Township building. Berks Products separately charged the Township for the material. DHC invoice number 1434 was approved for payment by the Board by a 3 -0 vote on March 26, 2007, with Respondent participating in the vote. Township check number 3669 in the amount of $120.00 was received by DHC on February 8, 2007. Respondent signed check number 3669 as one of the Township's authorized signatories. On February 7, 2007, DHC submitted to the Township invoice number 1438 in the amount of $176.40 for hauling antiskid for the time period of February 1, 2007, through February 7, 2007. The hauling was arranged by Loder, who contacted Respondent. Berks Products separately invoiced the Township for the material. DHC invoice number 1438 Himmelberger, 07 -109 Page 24 was approved for payment by the Board by a 3 -0 vote on March 26, 2007, with Respondent participating in the vote. Township check number 3683 in the amount of $176.40 was issued to DHC on February 26, 2007. Respondent signed check number 3683 as one of the Township signatories. DHC submitted to the Township invoice number 1450 dated February 23, 2007, in the amount of $141.00 for hauling antiskid to the Township building. Berks Products separately invoiced the Township for the material. Invoice number 1450 was approved for payment by the Board by a 3 -0 vote on March 26, 2007, with Respondent participating in the vote. Township check number 3700 was issued to DHC on March 17, 2007, in the amount of $141.00. Respondent signed check number 3700 as one of the Township signatories. DHC submitted to the Township invoice number 1462 dated March 26, 2007, in the amount of $60.00 for hauling antiskid to the Township Building. Berks Products separately invoiced the Township for the material. The work was arranged by Loder, who contacted Respondent. Invoice number 1462 was approved for payment by the Board by a 3 -0 vote on April 30, 2007, with Respondent participating in the vote. Township check number 3737 was issued to DHC on April 5, 2007. Respondent signed the check as a Township Supervisor authorizing payment. DHC submitted to the Township invoice number 1469 dated April 17, 2007, in the amount of $236.58 consisting of a hauling fee of $70.80 plus the actual cost of the stone that was hauled for the Township. Invoice number 1469 was approved for payment by the Board by a 3 -0 vote on April 30, 2007, with Respondent participating in the vote. Township check number 3770 was issued to DHC on May 2, 2007, in payment of invoice number 1469. Respondent signed check number 3770 as an authorized Township signatory. DHC submitted to the Township invoice number 1560 dated December 31, 2007, in the amount of $121.80. The invoice was for hauling antiskid to the Township Building on December 14, 2007. The hauling was authorized by Loder who contacted Respondent. Berks Products separately invoiced the Township for the material. Invoice number 1560 was approved for payment by the Board by a 2 -0 -1 vote on January 28, 2008, with Respondent participating in the vote. Supervisor Sarah Mathias abstained, as she was not a Supervisor in December 2007. Township check number 4147 dated December 31, 2007, was issued to DHC in the amount of $121.80. Respondent signed check number 4147 as an authorized Township signatory. On or about March 30, 2007, Loder submitted a Dirt and Gravel Roads Grant Application to the Berks County Conservation District seeking funding for repairs to South Garfield Road in the Township. The grant application listed total expected costs for the project as $49,516.00, with $32,280.00 of such costs to be paid by grant money and the remaining $17,236.00 consisting of in -kind contributions. The materials needed for the project included shale. Loder signed the grant application as the applicant from the Township. On April 18, 2007, the Township was notified that it had been awarded a grant in the amount of $32,280.00. Attached to the notice letter was a Dirt and Gravel Road Maintenance Project Agreement ( "Agreement "). The Agreement required the Township to ensure that the Agreement and all other arrangements entered into pursuant to the implementation of the Agreement were in conformance with all applicable local, state, and federal laws, rules and regulations. Attachment C of the "Agreement" included a conflict of interest clause (see, Fact Finding 60). At the April 18, 2007, Board meeting, the Board voted 3 -0 to approve the Agreement, with Respondent participating in the vote. The Agreement was executed by Himmelberger, 07 -109 Page 25 Loder and by Glenn R. Seidel of the Berks County Conservation District. At the time Respondent voted to approve the Agreement, DHC had already performed services in relation to providing materials (shale) and equipment for the road project. DHC had hauled shale to the South Garfield Road site in November 2006. From approximately April 10, 2007, through July 2007, DHC provided equipment, employees, and materials to the Township for the project. All services provided by DHC were not publicly bid or advertised. All work was authorized by Loder. On August 9, 2007, DHC submitted to the Township invoice number 1514 in the total amount of $7,857.16 for equipment and materials supplied for the South Garfield Road project for the time period of April 10, 2007, through July 16, 2007. Of the total amount billed by DHC for the project, $6,348.20 was for charges by DHC and $1,508.96 was for charges by Berks Products for stone. During the August 27, 2007, Board meeting, DHC invoice number 1514 was approved for payment by the Board by a 2 -0 vote, with Respondent participating in the vote. Only two Supervisors were present at the August 27, 2007, Board meeting. Township check number 3928 was issued to DHC on August 11, 2007, in the amount of $7,857.16. Respondent signed check number 3928 in his capacity as a Township Supervisor. On nine occasions between December 2006 and December 2007, Respondent participated in Board votes to approve payments for DHC bills totaling $17,075.34. Additionally, Respondent signed, as an authorized signatory for the Township, eight of the nine Township checks by which those payments were made to DHC. (Fact Findings 72- 73). Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. 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 an unintentional violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a) occurred when Himmelberger voted to approve payments and sign checks issued to his business, David Himmelberger Construction; and b. That no violation of Section 1103(f) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(f) occurred because he played no role in the contracts awarded to his company. 4. Himmelberger agrees to make payment in the amount of $500.00 in settlement of this matter payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. 5. The Investigative Division will recommend that the State Ethics Commission take no further action in this matter; and make no Himmelberger, 07 -109 Page 26 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 allegations and the recommendations of the Consent Agreement, it appears that the Investigative Division in the exercise of its prosecutorial discretion has elected to non pros the allegation that Respondent violated Section 1103(a) of the Ethics Act when he participated in discussions and actions of the Board of Supervisors to enter into contracts with his company. We therefore need not address that particular allegation. As for the allegation that Respondent violated Section 1103(a) of the Ethics Act when he participated in actions of the Board of Supervisors to issue payments to his company, including approving bills lists which included payments to DHC and signing checks issued to DHC, we accept the recommendation of the Consent Agreement for the finding of an unintentional violation of Section 1103(a). Each element of the recommended unintentional violation has been established. Respondent used the authority of his public position by voting to approve Township payments to DHC and signing, as an authorized signatory, Township checks issued to DHC. As noted above, the parties have stipulated that on nine occasions between December 2006 and December 2007, Respondent participated in Board votes to approve payments for DHC bills totaling $17,075.34. Additionally, Respondent signed, as an authorized signatory for the Township, eight of the nine Township checks by which those payments were made to DHC. But for being a Township Supervisor, Respondent would not have been in a position to take such actions financially benefiting his business, DHC. Cf., Kehoe, Order 1413; Martinelli, Order 1368; Heichel, Order 1281. Per the Consent Agreement, the parties are in agreement that Respondent did not intend to violate the Ethics Act in taking the above actions. Although intent is not a requisite element for a violation of the Ethics Act, Yocabet v. State Ethics Commission, 531 A.2d 536 (Pa. Cmwlth. 1987), it is one of the factors that this Commission may consider in determining the proper disposition of a case. We conclude that the application of the law to the facts before us supports the recommended finding of an unintentional violation of Section 1103(a) of the Ethics Act. Accordingly, we hold that an unintentional violation of Section 1103(a) of the Ethics Act occurred when Respondent voted to approve Township payments and signed Township checks issued to his business, DHC. The remaining allegation is that Respondent violated Section 1103(f) of the Ethics Act when DHC entered into contracts with the Township in excess of $500.00 without an open and public process. The parties have recommended a finding that no violation of Section 1103(f) of the Ethics Act occurred for the proffered reason that Respondent played no role in the contracts awarded to his company. However, the Stipulated Findings establish that Respondent was the owner of DHC (Fact Findings 11, 12 c), Respondent was the DHC representative who provided quotes to Loder (Fact Findings 16 b 2, 17 b, 23 a), and Respondent was the point of contact at DHC to initiate work for the Township (Fact Finding 24 a). Some of the contracts between DHC and the Township were valued in excess of $500.00. Such contracts do not appear to have been awarded through an open and public process. Himmelberger, 07 -109 Page 27 Although a disposition of this case potentially could have included a finding of a transgression of Section 1103(f) 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 will treat the Section 1103(f) allegation as a "non pros" by the Investigative Division. Accordingly, we hold that Respondent did not violate Section 1103(f) of the Ethics Act in relation to the allegation that DHC entered into contracts with the Township in excess of $500.00 without an open and public process, based upon a non pros by the Investigative Division. As part of the Consent Agreement, Respondent has agreed to make payment in the amount of $500.00 in settlement of this matter, payable to the Commonwealth of Pennsylvania and forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter. 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. Accordingly, Respondent is directed to make payment in the amount of $500.00 payable to the Commonwealth of Pennsylvania and forwarded to this Commission by no later than the thirtieth (30 day after the mailing date of this adjudication and Order. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. As a Supervisor of Penn Township ( "Township "), Berks County, from approximately September 19, 2006, to the present, Respondent David Himmelberger ( "Himmelberger ") 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. Himmelberger unintentionally violated Section 1103(a) of the Ethics Act when he voted to approve Township payments and signed Township checks issued to his business, "Dave Himmelberger Construction, Inc." ( "DHC'). 3. Himmelberger did not violate Section 1103(f) of the Ethics Act in relation to the allegation that DHC entered into contracts with the Township in excess of $500.00 without an open and public process, based upon a non pros by the Investigative Division. In Re: David Himmelberger, Respondent ORDER NO. 1507 File Docket: 07 -109 Date Decided: 3/12/09 Date Mailed: 3/27/09 1 David Himmelberger ( "Himmelberger "), a public official in his capacity as a Supervisor of Penn Township ( "Township "), Berks County, unintentionally violated Section 1103(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(a), when he voted to approve Township payments and signed Township checks issued to his business, "Dave Himmelberger Construction, Inc." ( "DHC"). 2. Himmelberger did not violate Section 1103(f) of the Ethics Act in relation to the allegation that DHC entered into contracts with the Township in excess of $500.00 without an open and public process, based upon a non pros by the Investigative Division. 3. Per the Consent Agreement of the parties, Himmelberger is directed to make payment in the amount of $500.00 payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission by no later than the thirtieth (30 day after the mailing date of this Order. a. Compliance will result in the closing of this case with no further action by this Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair