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HomeMy WebLinkAbout1519 KIRPATRICKIn Re: James Kirpatrick, Respondent File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella 08 -022 Order No. 1519 7/8/09 7/10/09 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 allegation(s). Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was filed and a hearing was waived. The record is complete. This adjudication of the State Ethics Commission is issued under the Ethics Act and will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with the Ethics Act. Kirkpatrick, 08 -022 Page 2 I. ALLEGATIONS: That James Kirkpatrick, a (public official /public employee) in his capacity as Transportation Facilities Administrator I violated the following provisions of the State Ethics Act (Act 93 of 1998) when he used the authority of his public position for a private pecuniary benefit by directing that contractors for the Department of Transportation provide personal items to him at no cost at a time when he was reviewing and approving contracts for vendors who provided him with items used for his personal purposes; when he failed to file a Statement of Financial Interests for the 2007 calendar year by May 1, 2008; when he failed to disclose all direct /indirect sources of income on Statements of Financial Interests filed for 2004 and 2005 calendar years; and when he failed to disclose the identity of all creditors on a Statement of Financial Interests filed for the 2006 calendar year. § 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). § 1104. Statement of financial interests required to be filed (a) Public official or public employee. —Each public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the commission no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee or public official shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Persons who are full -time or part -time solicitors for political subdivisions are required to file under this section. 65 Pa.C.S. § 1104(a). § 1105. Statement of financial interests (b) Required information. —The statement shall include the following information for the prior calendar year with regard to the person required to file the statement: (4) The name and address of each creditor to whom is owed in excess of $6,500 and the interest rate thereon. However, loans or credit extended between members of the immediate family and mortgages Kirkpatrick, 08 -022 Page 3 (5) securing real property which is the principal or secondary residence of the person filing shall not be included. The name and address of any direct or indirect source of income totaling in the aggregate $1,300 or more. However, this provision shall not be construed to require the divulgence of confidential information protected by statute or existing professional codes of ethics or common law privileges. 65 Pa.C.S. § 1105(b)(4) -(5). § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa.C.S. § 1102. II. FINDINGS: Pleadings 1 The Investigative Division of the State Ethics Commission received information alleging that James Kirkpatrick violated provisions of the State Ethics Act (Act 93 of 1998). 2. Upon review of the information the Investigative Division initiated a preliminary inquiry on April 1, 2008. 3. The preliminary inquiry was completed within sixty days. 4. On May 28, 2008, a letter was forwarded to James Kirkpatrick by the Investigative Division of the State Ethics Commission informing him that a complaint against him was received by the Investigative Division and that a full investigation was being commenced. a. Said letter was forwarded by certified mail, no. 7007 0220 0001 4375 2952. b. The domestic return receipt bore the signature of James Kirkpatrick, with a delivery date of May 30, 2008. 5. On September 5, 2008, the Investigative Division of the State Ethics Commission Kirkpatrick, 08 -022 Page 4 filed an application for a ninety day extension of time to complete the Investigation. 6. The Commission issued an order on September 22, 2008, granting the ninety day extension. 7 On November 12, 2008, the Investigative Division of the State Ethics Commission filed an application for a second ninety day extension of time to complete the Investigation. 8. The Commission issued an order on December 4, 2008, granting the ninety day extension. 9. On March 26, 2009, an amended Notice of Investigation was forwarded to James Kirkpatrick by the Investigative Division of the State Ethics Commission informing him that the allegations contained in the May 28, 2008, Notice of Investigation were being amended. a. Said letter was forwarded by certified mail, no. 7006 2150 0002 5372 6840. b. The domestic return receipt bore the signature of C. Kirkpatrick, with a delivery date of March 30, 2009. 10. Periodic notice letters were forwarded to James Kirkpatrick in accordance with the provisions of the Ethics Act advising him of the general status of the investigation. 11. The Investigative Complaint /Findings Report was mailed to the Respondent on May 14, 2009. 12. James W. Kirkpatrick, Jr. was employed as a Transportation Facilities Administrator 1 with the Facilities Management Division (hereafter FMD), Bureau of Office Services, Deputate of Administration, Pennsylvania Department of Transportation (hereafter Department) from approximately July 13, 1999, through January 3, 2008. a. Kirkpatrick also held the following positions with the Department at various points over the time frame of August 1989 to July 1999 before his promotion to the position of Transportation Facilities Administrator 1: 1. Engineering Technician; 2. Bridge /Structural Design Technician; 3. Bridge /Structural Drafter; 4. Electrical Construction Inspector; 5. Transportation Construction Inspector Supervisor; 6. Transportation Construction Inspector Supervisor /Electrical Construction Inspector; and 7. Roadway Programs Specialist. b. Kirkpatrick's employment with the Department was not consecutive from 1989 to 2008. 1. Kirkpatrick was not employed with the Department from September 19, 1997, through January 24, 1999. Kirkpatrick, 08 -022 Page 5 c. Kirkpatrick submitted e-mail correspondence dated January 4, 2008, expressing a desire to separate from his regular status position as a Transportation Facilities Administrator I (hereafter TFA I). d. The Department accepted Kirkpatrick's resignation via letter dated January 18, 2008. 13. The Department's position description [for] the TFA I (a /k/a District Facilities Manager) for Engineering Districts 11 -0 and 12 -0 defines the position purpose as participation in the planning, assigning, directing, and coordinating of services associated with building design, maintenance, construction, and repair for all facilities within Transportation Engineering District 11 -0 and 12 -0 and notes, in part, the following duties and responsibilities: a. Maintenance and management of district four -year facilities plans; and budgets and ensures funding is spent wisely and effectively provides reports as needed; b. Planning and coordinating of services associated with building maintenance, design construction, and repair district wide; c. Performance and monitoring of data entry and updates to the facilities database as well as effective use of the database to ensure timely project delivery; d. Development of specifications and scope of work for facilities projects and services; e. Development and completion of initial contract bid documents and associated ITQ contract requirements involved in the competitive bidding process and ensures accuracy of all submissions; f. Direction of the preparation of facility design, construction, renovation, and demolition projects with input from agency consultative staff; Scheduling and conduction of required project management meetings, including pre -bid, pre -job, interim job, final inspection, and other meetings as required; h. Conduction of inspections of project work sites and ensuring contractor compliance and performance in accordance with contract specifications and scope of work; and Evaluation of project status and percentage of completion; processing of contractor invoices and associated departmental forms required for payment of invoices in a timely manner. g. 14. The FMD is part of the Bureau of Office Services, Deputate of Administration, of the Department. a. The FMD is responsible for providing technical support and infusion of money into individual districts and counties regarding new construction, building maintenance and remodeling, emergency repairs, paving, etc. b. Buildings supported by the FMD include, but are not limited to, employee staging areas, salt storage buildings (a /k/a huskies), roadside rest stations, Kirkpatrick, 08 -022 Page 6 county /district offices, weigh stations, driver's license centers, etc. 15. The Commonwealth is divided into four separate regions (Northern, Southern, Eastern, and Central) regarding FMD operations. a. Each region was overseen by a TFA 111 and was composed of specific Department districts during Bolinger's tenure with the exception of the Central region as shown below: Northern Southern Eastern Central District 1 District 8 District 4 District 2 District 9 District 5 District 3 District 11 District 6 District 10 District 12 Note: Represents regional /district alignment prior to Bolinger's separation. 1. The Central region primarily addresses the administration of the FMD and is not composed of specific districts. aa. The Central region is based in Harrisburg, Pa. 2. Each district is overseen by a TFA 1 or 11 (a /k/a District Facility Administrator) and is composed of various counties. 16. Craig Bolinger was assigned oversight of the Southern Region for the FMD in his position as a TFA 111. a. Counties composing the four districts in the Southern Region were as follows: District 8 District 9 District 11 District 12 Franklin Somerset Beaver Westmoreland Adams Cambria Allegheny Washington Cumberland Blair Greene Perry Huntingdon Fayette Dauphin Fulton Lebanon Bedford York Lancaster Note: Represents regional /district alignment prior to Kirkpatrick's separation. 1. Emmanuel Walker was the TFA assigned to District 8. 2. Jack Rice was the TFA assigned to District 9. 17. Kirkpatrick reported to Bolinger as his immediate supervisor. a. Kirkpatrick and Bolinger worked from the same office location at the Engineering District 11- 0/12 -0 compound. b. Kirkpatrick was the TFA assigned to Districts 11 and 12. 1. Kirkpatrick was initially assigned only District 11 but was assigned District 12 upon Bolinger's promotion to the Southern Regional Kirkpatrick, 08 -022 Page 7 Facilities Administrator. 2. Bolinger served as the District Facilities Administrator for District 12 prior to his promotion. 18. The FMD operates as a management /supervisory arm to ensure that Department projects undertaken are completed per the documented project scope, specifications, etc. a. The FMD has no laborers or field employees with the exception of Regional and District Facility Administrators. b. The majority of construction work which is managed by the FMD is performed under contract by an outside vendor. 19. The Department has invited contractors to respond to an Invitation To Qualify (ITQ) for Facility Construction, Renovation, and Inspection Services since at least October 24, 2001. a. The ITQ is assigned an actual contract number under which a specific scope of work may be completed. 1. From at least October 24, 2001, through December 31, 2005, the ITQ for FMD related projects /services was documented under Contract Number 359002. 2. From approximately January 1, 2006, through December 31, 2011, the ITQ for FMD related projects /services has been /will be documented under Contract Number 354102. b. The ITQ documents qualification requirements, contract terms and conditions, special requirements and specifications, service type and location information, etc., via various exhibits (i.e. Exhibit A, Exhibit B, etc.). 20. In order to qualify for the ITQ program, interested contractors are required to complete the contractor's signature page of the ITQ as well as any specific Exhibits as documented in the ITQ Table of Contents and return the documents to the Department's Bureau of Office Services located in Harrisburg, Pa. a. The ITQ requires that contractors complete a Service Type and Location Sheet on which the contractors identify the following: 1. Company or individual name and Federal Identification or Social Security Number; 2. The services the company or individual wishes to provide distinguished by category and sub - category (i.e. Architectural: General, Roofing, Windows, Doors, etc.; Mechanical: Heating /Air Conditioning, Plumbing, etc.; Inspection Services: General, Roofing, Masonry /Concrete, etc.). 3. The County /Counties where the company or individual wishes to provide services. 21. Contractors meeting all qualification requirements as contained in the ITQ are awarded a contract and added to the Department's list of approved contractors. Kirkpatrick, 08 -022 Page 8 a. Being qualified as an approved contractor on the ITQ does not guarantee the awarding of projects to the contractor under the ITQ contract number. 1. Being qualified as an approved contractor on the ITQ guarantees only the opportunity to bid on projects that require competitive bidding. 22. Projects planned by the FMD are governed by cost thresholds established by the PennDOT Procurement Manual and the Department of General Services Field Procurement Handbook. a. Cost threshold information is also documented in the ITQ in effect at the time of the project. 23. The ITQ under Contract Number 359002 noted cost thresholds in effect under Exhibit C — Special Requirements and Specifications, Sections 1 (General) and 2 (Procedure). a. Section 1 documented that services provided must cost less than $100,000.00 per project including both materials and labor. 1. All aviation projects, except vertical construction projects, were exempt from the dollar limit. b. Section 2 documented that any project costing less than $3,000.00 did not require competitive bidding. c. Section 2 documented that any project totaling over $3,000.00 including materials and labor required the invitation of a minimum of three contractors pre - qualified in the service type and county where the work was to be performed to bid on the project. 24. Any project requiring services, including both labor and materials, which totaled between $10,000.01 and $100,000.00 required the following of the competitive bid process. a. Any services /project totaling more than $100,000.00 required a Delegation from the Department of General Services in order for the Department to maintain control of the project. 1. The Department was specifically issued a Delegation from the Department of General Services, Bureau of Engineering and Architecture on December 2, 2003, relating to the design, bid, and construction of salt storage buildings with construction cost estimates not exceeding $500,000.00. 2. The Delegation granted for salt storage buildings was specifically incorporated into the ITQ under Contract Number 354102. 25. The ITQ under Contract Number 354102 also noted cost thresholds in effect under Exhibit C — Special Requirements and Specifications, Sections 1 (General) and 2 (Procedure). a. Section 1 documented that facility projects, including both materials and labor, must not exceed $100,000.00 per project and salt storage buildings must not exceed $500,000.00 per project. 1. All aviation projects, except vertical construction projects, were Kirkpatrick, 08 -022 Page 9 exempt from the dollar limit. b. Section 2 documented that any project costing less than $3,000.00 did not require competitive bidding. 1. Although not documented on the ITQ, currently any project totaling less than $5,000.00 does not require competitive bidding. c. Section 2 documented that any project totaling over $3,000.00 including materials and labor required the invitation of a minimum of three contractors pre - qualified in the service type and county where the work was to be performed to bid on the project. 1. Although not documented in the ITQ, the current cost threshold for a minimum of three quotes is set at $5,000.00. 26. Any project requiring services, including both labor and materials, which totaled between $10,000.01 and $100,000.00 required the following of the competitive bid process. a. Any project totaling more than $100,000.00 required a Delegation from the Department of General Services in order for the Department to maintain control of the project. 27. Exhibit C — Special Requirements and Specifications of the current ITQ and the prior ITQ both include a provision on contractor performance. a. Contractors who perform poor work, do not provide services on time, or engage in other unacceptable conduct are to be entered into the Commonwealth's Contractor Responsibility Program (CRP). 1. The purpose of the Contractor Responsibility Program is to ensure that the Commonwealth contracts only with responsible contractors and that the Commonwealth collects any obligations owed to it through offset review as documented in Management Directive 215.9 (amended). 2. "Other unacceptable conduct" is not defined in the past or current ITQ. b. Entries into the Contractor Responsibility Program may be considered in determining whether to exclude a contractor from award of assignments under the ITQ and may lead to termination of a Contractor's Contract. 28. Projects to be undertaken by the FMD within the four geographical regions of the Commonwealth are primarily determined via the development of a four -year plan for each District in each respective region. a. Four -year plans are normally generated by the DFA with the assistance of the County Manager from each county which composes the District. b. Four -year plans identify what the DFAs and County Managers desire to accomplish in the next four years relating to new construction, remodeling, etc. 1. Although developed for a four year period, the plans are constantly in a state of flux as a result of unplanned situations (i.e. Kirkpatrick, 08 -022 Page 10 emergency /unexpected repairs, maintenance, etc.). c. Once compiled, the four year plans are presented to the RFA for review and input. 29. The RFAs subsequently attend a budget meeting at the Bureau of Office Services central office in Harrisburg, PA with the Division Chief of the FMD to request a dollar amount regarding funding for the projects identified. a. The Division Chief subsequently allocates a lump sum funding figure to each RFA's region. 1. The RFA determines the amount of funds to be allocated to each district for upcoming projects. 2. Projects to be completed are prioritized based on available funds. 30. The general process by which an FMD project is created and bid is accomplished through a multi -step procedure as detailed below: a. Determination of the need for the project by the applicable DFA who then consults with the applicable RFA. b. Initial "building" of the project by the DFA via entry into the Penn State Facilities Engineering Institute database if the cost estimate is under $100,000.00 (based on prior projects, cost familiarity, etc.). 1. Initial building of the project requires the entry of a general scope of work and estimated cost for the project. c. Once entered, the database generates and assigns an FM Number (sequentially) to the project and sends an e-mail to the RFA to approve the project. 1. The e -mail documents the funding source for the project, what the project is, etc. d. Once the RFA approves the project, an e-mail documenting the approval is sent back to the DFA. e. After receiving approval from the RFA, the DFA continues to build the project via step -by -step entry fields in the database including but not limited to specifications, prevailing wage information, pre -bid meeting date, bid due date, routing slip information, submission to Graphics, etc. 1. Entry of the routing slip information informs the FMD purchasers at the Central Office to send the bids to all applicable contractors on the ITQ, the DFA, and the RFA. 2. Submission to Graphics indicates that the project has been submitted to Graphics and that all information entered by the DFA, including contractor names from the ITQ, is correct as verified by the purchaser. f. Graphics prints all of the required project information for each contractor identified and supplies it to the purchaser who subsequently mails the actual packet to the contractors. Kirkpatrick, 08 -022 Page 11 1 The packet provided includes a pre -bid meeting response document, a bid sheet, and project identification (i.e. scope of work, specifications, etc.). aa. The pre -bid meeting response document identifies the time and place of the pre -bid meeting as well as if the pre -bid meeting is or is not mandatory. 1. All pre -bid meetings are currently mandatory. bb. The pre -bid meeting response document is typically faxed to the DFA and serves as notification regarding those contractors planning on attending the meeting. 31. The DFA is required to attend the pre -bid meeting to provide clarification and explanation of the project, answer questions on the project, and detail the scope of work associated with the project. a. The DFA is to take minutes of the pre -bid meeting to include the time, date, those present, and notes of the meeting. b. Any modification or change in the scope of work as a result of the pre -bid meeting is required to be documented in the meeting minutes. 1. A written addendum of the changes is required to be provided to all contractors present at mandatory pre -bid meetings and to the applicable Purchasing Agent for inclusion in the project file. aa. If the pre -bid meeting is not mandatory, the addendum must be provided to all contractors invited to bid. 32. Contractors interested in the project must submit a written bid, based on the final scope of work and any changes in specifications, with all required bid documents. a. Bids are to be submitted on the bid sheet supplied in the project packet distributed. b. Bid[s] are to be submitted to the Purchasing Agents at the Bureau of Office Services Central Office in Harrisburg, PA via fax, mail, electronic transmission, or hand delivery prior to the specified due date. 1. The bid due date and time are specified on the bid sheet provided in the project packet. 33. Once the bid deadline has passed, bids received are reviewed by at least two Bureau of Office Services Purchasing Agents and the low bidder for the project is determined. a. Bids received are documented on a Summary of Bids form. 1. Information noted on the Summary of Bids includes all contractors (name, address, and contact information) to which project packets were distributed, actual bids submitted, the project (FM) number, the bid opening time and date, and the signature of the witnesses to the bid opening. Kirkpatrick, 08 -022 Page 12 b. The Purchasing Agent assigned to the project subsequently issues a Notice of Apparent Low Bidder to the contractor submitting the lowest bid. 1. The Notice of Apparent Low Bidder identifies the contractor name, address, and number; the date issued; the project (FM) number; the county, and district number. 34. The contractor in receipt of the Apparent Low Bid Notification is required to provide various documents to the Department, including a performance bond, payment bond, insurance certification listing the Commonwealth as additional insured, recycled content product provision, and /or a steel origination certification. a. If the information is not provided to the Department by the time and date indicated on the Apparent Low Bid Notification, the contractor's bid may be rejected. 35. Once the required documentation is received and reviewed by the Department, the Purchasing Agent assigned to the project issues the Notice to Proceed to the selected contractor. a. The Notice to Proceed is the actual purchase order for the project. 1. No contractor can be paid for work completed without an approved purchase order. b. No work is to begin on the project until the Notice to Proceed has been approved and issued. 36. A pre- construction conference is to be scheduled after the Notice to Proceed and prior to the beginning of any actual work. a. The DFA responsible for the project is required to be present at the pre - construction meeting. 1. The RFA for the region in which the project is occurring may also be present at the pre- construction meeting. b. Attendance by the contractor or authorized representative is mandatory at the pre- construction conference prior to the beginning of any work. 37. Progress meetings are to be scheduled throughout the progress of the work as deemed necessary. a. The DFA responsible for the project is required to attend the progress meetings. 1. The RFA for the region in which the project is occurring may also be present at the pre- construction meeting. b. The DFA or other Department representative may conduct periodic unscheduled visits to the sight. c. Contractors who perform poor work, do not provide services on time, or engage in other unacceptable conduct are to be entered into the Commonwealth's Contractor Responsibility Program. 38. A pre -final inspection is to be held two weeks prior to the termination date of the Kirkpatrick, 08 -022 Page 13 project. a. Items not completed regarding the project are to be placed on a punch list and reviewed at that time with the contractor. b. The contractor must complete all punch list items before the termination date of the project. c. A final inspection is to be performed at the end of the project period. 39. Once the project is complete, the DFA completes a goods receipt through SAP which is sent to the Purchasing Agent via e -mail transmission. a. Submission of the goods receipt through the SAP system signifies that the required work is completed, the final inspection has occurred, and all work was completed to required standards. 40. The Purchasing Agent subsequently matches the goods receipt to the purchase order issued and forwards the purchase order and goods receipt to the Comptrollers office. a. The Comptroller matches the invoice received from the contractor to the purchase order and goods receipt. b. Once the triple match occurs (purchase order, goods receipt, and invoice), payment due is authorized and released by the Comptroller's office. 41. Emergency work/repairs required for projects under the jurisdiction of the FMD do not follow procedures established for small, no bid procurement (under $5,000.00) or formal competitive sealed bids ([$10,000.01] to $100,000.00). a. Procedure regarding emergency work/repairs includes: 1. Notification of the applicable RFA of the need for emergency work/repairs. aa. The applicable DFA is normally the individual who informs the RFA of any emergency work/repairs required. 2. Obtaining of an Emergency Purchase Order Number from the Harrisburg Central Office. 3. Completion of an Emergency Procurement Approval request by the RFA (on behalf of Bureau Director) and forwarding of the request to the Manager of Operational Services, Bureau of Procurement, Department of General Services for approval. 4. Receipt of authorization to proceed with the Emergency Purchase Order. 5. Entering the project into the Penn State Facilities Engineering Institute database for assignment of a project (FM) number by the DFA. 6. Generation of a scope of work required for the emergency work/repairs by the DFA. Kirkpatrick, 08 -022 Page 14 7 Solicitation of bids from at least three qualified contractors to perform the work by the DFA. aa. Contractors solicited are routinely those on the ITQ in effect at that time. 8. Submission of bids by the contractors to the DFA at the DFA's office and completion of a Summary of Bids for forwarding to the Central Office. 9. Awarding the project by the Purchasing Agent to either the lowest qualified bidder or the lowest qualified bidder first available to complete the work. 10. Issuance of a purchase order (Notice to Proceed) for the project to the DFA and the RFA. 11. Project completion and contractor payment. b. There are no dollar value /threshold restrictions associated with emergency purchase orders. 42. The Department maintains varying numbers of Stockpiles strategically located throughout the counties which compose the separate districts in the Commonwealth. a. Stockpiles routinely have several structures on site which may include an employee staging area, a materials storage area, parking sheds for vehicles, a storage area for equipment and tools, etc. 43. On January 25, 2005, the Department issued project packets to various ITQ qualified vendors which included an invitation to bid regarding Facilities Project FM3221 and FM3222 under Contract No. 359002 to be located at the Searights Stockpile in Fayette County. a. The anticipated scope as documented on each invitation to bid called for the construction of one 36'x45' Husky to be reimbursed by the Pennsylvania Turnpike Commission. 1. The existing Department stockpile at Searights, PA was abandoned by the Department as a result of an agreement between the Pennsylvania Turnpike Commission and the Department. aa. The Department agreed to relocate the Stockpile in order for the Pennsylvania Turnpike Commission to extend a section of Toll Route 43 (the Mon - Fayette Expressway). bb. The Pennsylvania Turnpike Commission agreed to assist in financing the relocation of the Stockpile. b. The worksite for the projects was documented as, "Stockpile 22 District 12 Fayette County." 1. Stockpile 22 is located in Searights, Pa. c. The pre -bid meetings for the projects were initially scheduled simultaneously for February 28, 2005, at 10:00 a.m. at Stockpile 22. Kirkpatrick, 08 -022 Page 15 1 Attendance at the pre -bid meeting was not mandatory. 2. An Addendum to the bid package dated January 28, 2005, amended the pre -bid meeting for FM3221 and FM3222 to March 1, 2005, at 9:00 a.m. and 10:00 a.m. respectively. d. Kirkpatrick was documented as the Department contact on each invitation to bid 44. Clark Contractors, Inc. (hereafter Clark Contractors) was one of various vendors to receive project information related to FM3221 and FM3222. a. Clark Contractors is a general construction company located in Bedford, Pa. b. Clark Contractors was approved to bid on facilities design, construction, renovation and /or inspection work for the Department under Contract No. 359002. 1. Clark Contractors was an approved ITQ vendor. 45. Project information /specifications provided in the bid package specifically documented the construction of salt buildings (Huskies) for the Searights Stockpile, Fayette County, PA under FM3221 and FM3222. a. Noted was that the projects were for construction between July 1, 2005, and December 1, 2005, depending on the completion of site excavation. 46. Both Kirkpatrick and his immediate supervisor Craig Bolinger were present at the pre -bid meeting held on March 1, 2005. a. FM3221 and FM3222 as well as additional FM Numbers /projects to be associated with the relocated Stockpile 22 were scheduled throughout the day on March 1, 2005. b. The pre -bid meeting verified that the construction was to occur at the new location determined for Stockpile 22. c. Site preparation for the new location had not yet been completed at the time of the pre -bid meeting. 47. Purchase orders for various projects at the new Stockpile 22 location were approved although the site for the projects had not yet been completed. a. Purchase Order 4500215054 dated April 4, 2005, in association with FM3221 was approved and awarded to lark Contractors in the amount of $30,555.00. 1. Clark Contractors' bid of $30,555.00, submitted via facsimile transmission to the FMD on March 17, 2005, was the lowest of four bids received. b. Purchase Order 4500217069 dated April 12, 2005, in association with FM3222 was approved and awarded to Clark Contractors in the amount of $29,200.00. 1. Clark Contractors' bid of $29,200.00, submitted via facsimile Kirkpatrick, 08 -022 Page 16 transmission to the FMD on March 17, 2005, was the lowest of three bids received. 48. Project information provided to contractors in the bid packages for FM3221 and FM3222 specified that the Department was releasing the projects as "Design Build" projects. a. Design build projects are those in which the Department provides the contractor with project specifications and the contractor is responsible for designing the project. b. The ultimate design is submitted to the DFA for approval upon completion. 49. Although change orders are addressed in the ITQ, specifically documented in the explanation of "Design Build" as included in the bid packages issued for FM3221 and FM3222 is, "There will be no change orders on this project." Change orders are addressed in the ITQ for Contract No. 359002 under Exhibit C, Section 45, Advice of Change: "If, due to unforeseen circumstances, work is uncovered which is necessary for completion of the project, the Contractor shall submit to PennDOT, in writing, a letter detailing the additional work. The work defined in the letter must be within the original scope of work stated in the project specifications. Upon acceptance, PennDOT will issue an Advice of Change to the Order for the additional work. The Contractor shall not proceed with the additional work until the Advice of Change is executed by all parties." 50. Due to the fact that the new site for Stockpile 22 was not ready for construction, Bolinger approached Ronald Inks, Assistant County Manager, District 12 -1, Fayette County, and questioned Inks if a salt storage building could be utilized at Stockpile 21, District 12, Fayette County, Dinnerbell, Pa. a. Inks has supervisory responsibility over Stockpile 21 in his position as Assistant County Manager. 1. Stockpile 21 is located in Farmington, Pa. b. Bolinger also discussed additional modifications to Stockpile 21 with Inks. 1. Modifications to existing structures on site were discussed due to the fact that two Huskies would not fit in the available space in the stockpile compound. c. Inks' approval for changes in the scope of work was not required. 51. Bolinger contacted Clark Contractors representative /estimator Clair Corle via telephone regarding FM3221 and FM3222 after verifying that a new salt storage building and other modifications could be utilized at the Dinnerbell Stockpile. a. Bolinger informed Corle that the new Searights site was not ready. b. Bolinger questioned Corle if he had any objection to constructing one salt storage building and completing other renovations at the Dinnerbell Stockpile instead. a. 1. The scope of FM3221 did not change although the documented Kirkpatrick, 08 -022 Page 17 location did. 2. Both the documented scope and location of FM3222 changed. c. Corle did not object to the change in location for FM3221 or the change in scope and location for FM3222. 52. Sometime after April 4, 2005, Bolinger confirmed the changes in scope to FM3222 via fax issued to Corle at Clark Contractors' office in Bedford, Pa. a. The original fax sent to /received by Corle could not be located. b. The fax sent to Corle changed the scope to account for electrical service /lighting to an existing high arch salt storage building, lighting and installation of a truck plow pad in an existing three bay salt storage building (to be converted to truck parking), and installation of truck heaters as well as the supply of an air compressor, pressure washer, and concrete saw. 1. The fax generated by Bolinger specified the make and model of the air compressor, pressure washer, and concrete saw to be supplied. 53. Bolinger provided the list to Corle in order to determine if the new scope as determined by Bolinger could be completed for the same amount ($29,200.00) originally approved for FM3222. a. Bolinger and Corle spoke several times regarding the changes as initial estimates generated did not fall within the original amount approved for FM3222. 1. Changes made included Bolinger's changing the specific brands /models of equipment requested. 2. The brand names for the air compressor, pressure washer, and concrete saw initially specified by Bolinger were more expensive than the brands eventually agreed upon between Bolinger and Clark. 3. By Bolinger agreeing to accept less expensive brand names of equipment, Clark was able to complete the project at the initial $29,200.00 quote. 54. Although change orders were not authorized regarding design build projects under Contract No. 359002, RFAs and DFAs had the authority to approve slight changes in projects as long as the changes were in the same basic scope of the project and no cost increase resulted from the change. a. The ITQ requires that a change in a project location requires that a project be cancelled and re -bid. b. This project was authorized by Bolinger to move forward even though there was a change of location from Stockpile 22 to Stockpile 21. 55. Clark Contractors representative Dick Clark purchased tools requested by Bolinger in association with the revised scope of work under FM3222 at an approximate cost of $2,658.47. a. Clark purchased one 13 Horsepower Honda Concrete Saw with 18" guard, Serial Number 01280265 from Pitt Industrial Diamond Products on October Kirkpatrick, 08 -022 Page 18 20, 2005, in the amount of $2,161.34. 1. The $2,161.34 figure represents the cost of the saw and six percent sales tax. b. Clark purchased one Kobalt 22- gallon Digital Air Compressor Model No. 215914, Serial Number D19811299 from Lowe's Home Improvement Warehouse. 1. The approximate value of the air compressor was $295.74 with sales tax. aa. Clark Contractors could not locate any receipt or payment documentation for the purchase. bb. The value of the air compressor was obtained from jacksonville.travidia.com. c. Clark purchased one Karcher Pressure Washer, Model No. K3.86, Serial Number 387746. 1. The approximate value of the pressure washer was $201.39 with sales tax. aa. Clark Contractors could not locate any receipt or payment documentation for the purchase. bb. The value of the pressure washer was obtained from deerso.com. d. None of the tools Bolinger directed be purchased were needed in relation to this project. 56. Tools purchased by Clark/Clark Contractors were delivered /transported to Clark Contractors' main office in Bedford, PA. a. Equipment purchased by Clark/Clark Contractors was purchased in the same immediate time frame of mid - October 2005 to early November 2005. 57. Corle contacted Bolinger via telephone after obtaining the required equipment and finishing work at the Dinnerbell Stockpile. a. Corle advised Bolinger that the project was completed, that he had the equipment required, and questioned if Bolinger wished for Corle to deliver the equipment to the project site. 58. Bolinger declined Corle's offer to deliver the equipment to the Dinnerbell Site. a. Kirkpatrick and Bolinger drove to Clark Construction in Bedford, PA on an unidentified Friday and took possession of the equipment from Clark Contractors. b. Kirkpatrick and Bolinger drove to Clark Contractors' office in Bolinger's Commonwealth provided vehicle. 1. Bolinger was assigned a Chevrolet pick -up truck (Equipment No. 094- 3030) by the Commonwealth in late October 2005 in his position as Kirkpatrick, 08 -022 Page 19 an RFA. 59. Bolinger and Kirkpatrick subsequently returned to the District 12 -0 office location with the equipment. a. Although Bolinger and Kirkpatrick returned to their field office with the equipment, the tools were not provided to any Department personnel for custody or inventory purposes. 1. Bolinger did not notify or inform anyone at Engineering District 12 -0 or at Maintenance District 12 -1 of the equipment which had been obtained. b. No records could be located at Engineering District 12 -0 or at Maintenance District 12 -1 documenting the delivery of the equipment. 60. Clark Contractors submitted an invoice (number illegible) dated October 25, 2005, to the Department Comptroller's Office for payment in the amount of $30,555.00 for services performed in association with FM3221. a. The invoice referenced PO Number 4500215054. b. The invoice description referenced "PO #: 4500215054 Project FM3221 36'x45' Storage Building." 61. Clark Contractors submitted an additional invoice number illegible) dated November 9, 2005, to the Department Comptroller's Office for payment in the amount of $29,200.00 for services performed in association with FM3222. a. The invoice referenced PO Number 4500217069. b. The invoice description referenced "PO #: 4500217069 Project FM3222 36'x45' Storage Bldg." 62. The invoice submitted by Clark Contractors for payment was not reflective of the approved scope of work for FM3222 or the actual services performed in relation to payment requested. a. PO Number 4500217069/FM3222 documented approval for the construction of a 36'x45' salt storage building at the Searights Stockpile. b. Actual work performed included addition of electrical service and lighting to existing structures, installation of a truck plow pad, and installation of truck heaters at the Dinnerbell Stockpile location and equipment ultimately provided to Bolinger by Clark Contractors which was not related to any aspect of the project. 63. Clark Contractors submitted the invoice to the Department Comptroller's Office in November 2005 at Bolinger's direction referencing completion of the original scope of work at the original approved location rather than the actual services performed and the equipment directed to be provided by Bolinger. a. Clark Contractors submitted the invoice under the original scope of work associated with the approved Purchase Order in order to receive payment for services performed. b. Payment to contractors cannot occur without an approved Purchase Order. Kirkpatrick, 08 -022 Page 20 1. No Purchase Order was approved for repairs, upgrades, or additions to the Dinnerbell Stockpile. 64. Clark Contractors received payment for services under FM3221 and FM3222 in the original bid amounts of $30,555.00 and $29,200.00 respectively via Commonwealth check number 09246736, dated December 16, 2005, in the amount of $59,755.00. a. Payment received by Clark Contracting included payment for equipment which Kirkpatrick and Bolinger took possession of from Clark Contracting. b. Clark Contractors deposited Commonwealth check number 09246736 into its business account at First American Bank on December 19, 2005. 65. The Department requires an annual inventory to be completed regarding equipment and tools located at each Engineering and Maintenance District within the Commonwealth. a. The Department generally defines equipment as items which are operated to complete a task and can move under their own power. b. The Department generally defines tools as items which are used in order to complete a task (i.e. hand tools, jacks, etc.). c. The District Equipment Manager or his /her designee is responsible for completing the inventory of the Engineering District Office while the County Equipment Manager or his /her designee is responsible for completing the inventory of County Maintenance Districts. d. Inventories must be completed by May 15 annually. 66. Department equipment and tools are assigned specific numbers for identification purposes and to ensure that equipment /tools purchased are actually on -site at their assigned location. a. Items identified as equipment bear a seven digit number stenciled on the equipment in multiple locations. 1. Items identified as equipment originate from the Department in Harrisburg and are provided with the equipment number already in place. b. Items identified as tools bear a four digit number which is engraved, written in permanent marker, or noted on a brass tag which is affixed to the tool. 1. Tools purchased at the local level are marked with a sequential tool number upon arrival. 67. Inventories conducted at Engineering Districts and County Maintenance Districts are completed via the recording of equipment and tools by their applicable equipment /tool number. Any items discovered during the inventory process with no equipment /tool number are to be noted on the inventory report and researched. 68. Inventories for Engineering District 12 -0 and Maintenance Districts 12 -1, 12 -2, 12 -4, and 12 -5 were completed by Department personnel for 2005 -2006, 2006 -2007, and a. Kirkpatrick, 08 -022 Page 21 2007 -2008. a. None of the inventories conducted documented the presence of the concrete saw, air compressor, or pressure washer directed by Kirkpatrick and Bolinger that Clark provide to them. 1. The inventories documented no tool number assigned to any of the items received by Bolinger and Kirkpatrick. 2. The inventories documented no record of any concrete saw, air compressor, or pressure washer discovered without a tool number during the inventories. 69. Inventories conducted revealed the following tools of a similar nature present in District 12 Maintenance districts as early as late winter /early spring 2005. a. District 12 -1, Fayette County: Item 15 HP Air Compressor (2) Pressure Washer Pressure Washer Concrete Saw Item Air Compressor (2) Air Compressor Compressor, Shop 15 HP Concrete Saw, Hand- held Item Pressure Washer Pressure Washer (3) Pressure Washer -Hot Water Pressure Washer High Pressure Washer Air Compressor, 6HP60 Gal Air Compressor, 6HP60 Gal (5) Air Compressor Make Tool No. Year Purchased Cost Champion 0446/0447 1987 $5,000.00 NAPA CAT MK Diamond b. District 12 -2, Greene County: Make Emglo Hatfield - Campbell Ingersol Rand Stihl c. District 12 -4, Washington County: Make Hurrican Blador Alkota Blast Off Hots Model 4400 Charge Air Power Cambell Hausfield Emglo 0133 0205 0761 Tool No. 0040/0288 0308 0389 0588/0599 1 Tool Number 0040 was labeled as an Emglo compressor on the inventory completed in 2005 and as a Champion compressor on the inventory completed in 2006. Tool No. 0148 0493/0489 0488 0502 0528 0226 0578 0433/0437 0436/0435 0434 0088 1998 2002 2006 Year Purchased Unknown Unknown Unknown Unknown Unknown Year Purchased 1996 1989 2002 2002 1996 1996 1964 $1,498.00 $1,850.00 $1,340.00 Cost Unknown Unknown Unknown Cost $900.00 $900.00 $4,075.00 $1,500.00 $125.00 $480.00 $480.00 $433.00 Kirkpatrick, 08 -022 Page 22 d. Portable Air Compressor Item Senco District 12 -5, Westmoreland County: Compressor, 10 Ton Air Compressor Compressor Air Compressor Air Compressor Pressure Washer Ma ke Tool Ingersol Rand Emglo- Lincoln Emglot Gardner Denver Emglo Troy Buict 70. Inventories conducted revealed the following equipment of a similar nature present at the Engineering District 12 -0 main office as early as late winter /early spring 2006. a. Engineering District 12 -0, Uniontown, PA, Fayette County: Item Make Concrete Saws (4) Stihl 0176 2001 Year No. Purchased 0147 1977 0237 1980 0273 1981 0926 2003 0968 2005 0949 2004 Equipment Model No. Year 090 -4759 1990 091 -4759 1990 122 -4759 1997 146 -4759 2001 Concrete Saw Blazer Diamond 195 -4968 1999 Cost $1,700.00 $26.00 $1,900.00 $2,150.00 $2,000.00 $417.00 Acceptance Date 08/10/90 08/10/90 08/11/97 07/20/01 04/29/1999 71. The Department has the ability to borrow tools from surrounding districts /counties or purchase tools as needed in order to complete assigned tasks. a. The Department follows established procedures in relation to the purchase of equipment. 1. The Department does not solicit the FMD for provision of tools. 2. The FMD has no authority or responsibility to purchase or otherwise obtain tools for the Department. b. Bolinger's solicitation of the tools from Clark was contrary to Department policies and procedures. 72. Bolinger was observed bringing the concrete saw, air compressor, and pressure washer to the Engineering District 12 -0 Office in his Commonwealth issued vehicle in or about April 2007. a. Bolinger was suspended by PennDOT from his position in April 2007. b. Bolinger questioned Donald Lowry, District 12 -0 Building Maintenance Foreman, if the tools could be stored in the Lawn Maintenance Building. 1. The Lawn Maintenance Building is utilized to store large pieces of district lawn maintenance equipment, tools, and general building supplies. $229.00 Kirkpatrick, 08 -022 Page 23 aa. The County occasionally stores items in the Lawn Maintenance Building if necessary. 2. Lawn Maintenance Building keys were maintained by Lowry, Ronald Jones - Maintenance Repairman 11, and an intern. c. The appearance of the tools indicated that they had been used. d. Lowry did not assist in removing the items from the truck for storage in the Lawn Maintenance Building. 73. The tools were present in the Lawn Maintenance Building at the time of Kirkpatrick's suspension from the Department in April 2007. a. b. The tools were subsequently moved to the Dead Storage building located at the Engineering District 11- 0/12 -0 compound. The tools have remained in the Dead Storage building since that time. 74. During an interview with Commission investigators on March 12, 2009, Kirkpatrick stated the following: a. Several "gray areas" existed in FMD procedures which were not specific on how projects were to proceed (including change orders). b. Kirkpatrick was not intimately involved in the decision to move FM3221 and FM3222 from the Searights location to the Dinnerbell location. c. Kirkpatrick was not intimately involved in the decision to change the work associated with FM3222. d. Kirkpatrick was not involved in the decision to solicit tools from Clark Contractors in association with FM3222. e. Kirkpatrick did not utilize any of the tools obtained for any type of personal use. THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS THAT KIRKPATRICK FAILED TO DISCLOSE ALL DIRECT /INDIRECT SOURCES OF INCOME ON STATEMENTS OF FINANCIAL INTERESTS FILED FOR CALENDAR YEARS 2004 AND 2005, THAT HE FAILED TO DISCLOSE THE IDENTITY OF ALL CREDITORS ON HIS STATEMENT OF FINANCIAL INTERESTS FILED FOR CALENDAR YEAR 2006, AND WHEN HE FAILED TO FILE A STATEMENT OF FINANCIAL INTERESTS FOR THE 2007 CALENDAR YEAR BY MAY 1, 2008. 75. Statement of Financial Interests filing requirements for public officials and public employees are mandated by Section 1104 of the State Ethics Act. a. Section 1104(a) specifies that each public employee or public official of the Commonwealth must file an SFI for the preceding calendar year with the department, agency, body, or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. 1. Kirkpatrick was required to file Statements of Financial Interests by May 1 annually in his position as a DFA with the Department. Kirkpatrick, 08 -022 Page 24 76. Section 1105(b) subsections 1 -10 document specific information which must be noted on Statements of Financial Interests filed. a. Section 1105(b)(5) requires the disclosure of any direct or indirect source of income totaling $1,300.00 or more in the aggregate. b. Section 1105(b)(4) requires the disclosure of each creditor owed in excess of $6,500.00 and the interest rate in effect. 77. Statements of Financial Interests filed by Kirkpatrick as a public employee with the Department were requested by the Investigative Division from Attorney Heather Sharp, Assistant Counsel in Charge, Personnel Section, Office of Chief Council, Department of Transportation via correspondence dated May 12, 2008. a. Kirkpatrick's past five calendar years' Statements of Financial Interests were requested beginning with the SFI filed in 2008 for calendar year 2007. 78. Statements of Financial Interests on file with the Department regarding Kirkpatrick for calendar years 2002 through 2007 at the time of the request are dated as follows: Calendar Year Filing Date 2003 05/26/04 2004 04/20/05 2005 04/18/06 2006 04/10/07 2007 None 79. Kirkpatrick failed to disclose all direct /indirect sources of income on his SFI filed for calendar year 2005. a. Kirkpatrick was employed with Sony Technology of Pittsburgh from at least October 20, 2004, through April 20, 2005. b. Kirkpatrick did not disclose Sony Technology of Pittsburgh as a direct or indirect source of income on his 2005 calendar year SFI. 1. Kirkpatrick disclosed income in the amount of $5,500.00 from Sony Technology during the period of October 20, 2004, through April 20, 2005, on his Governor's Code of Conduct Statement of Financial Interest. 80. Kirkpatrick failed to disclose the identity of his automobile creditor on his SFI filed for calendar year 2006. a. Kirkpatrick's SFI documents only "Auto Loan," "Bal. 9300.00," and "6.5" (interest) under "Creditors" on his 2006 calendar year SFI. b. Kirkpatrick did not document the actual name of the creditor or the address of the creditor. 81. Kirkpatrick failed to file his 2007 calendar year SFI by May 1, 2008. a. Kirkpatrick was made aware of his failure to file an SFI for calendar year 2007 by PennDOT representatives after PennDOT's receipt of the May 12, 2008, correspondence from the Investigative Division requesting to provide Kirkpatrick, 08 -022 Page 25 copies of his Statements of Financial Interests. b. Kirkpatrick was additionally made aware of his failure to file upon receipt of the original Notice of Investigation letter dated May 28, 2008. 1. Kirkpatrick received the original Notice of Investigation letter on May 30, 2008. 82. Kirkpatrick did not file a Statement of Financial Interests for calendar year 2007 until April 15, 2009, when he also completed a Statement of Financial Interests for calendar year 2008. III. DISCUSSION: Respondent James Kirkpatrick (hereinafter also referred to as "Respondent," "Respondent Kirkpatrick," and "Kirkpatrick ") was employed as a Transportation Facilities Administrator 1 with the Pennsylvania Department of Transportation ( "PennDOT ") from approximately July 13, 1999, through January 3, 2008. Before addressing the allegations, we preliminarily note that in a Position Statement filed June 23, 2009, the Investigative Division has indicated that it is no longer pursuing the alleged violation of Section 1103(a) of the Ethics Act in this case. We conclude that there has been a not pros of the Section 1103(a) allegation, and we need not address it further. The remaining allegations are that Respondent violated Sections 1104(a) and 1105(b)(4) -(5) of the Ethics Act, 65 Pa.C.S. §§ 1104(a) and 1105(b)(4) -(5), when he, as a Transportation Facilities Administrator 1 for PennDOT, failed to file a Statement of Financial Interests for the 2007 calendar year by May 1, 2008; when he failed to disclose all direct /indirect sources of income on Statements of Financial Interests filed for the 2004 and 2005 calendar years; and when he failed to disclose the identity of all creditors on a Statement of Financial Interests filed for the 2006 calendar year. Section 1104(a) of the Ethics Act provides that each public official /public employee must file a Statement of Financial Interests for the preceding calendar year, each year that he holds the position and the year after he leaves it. The filing deadline is May 1. Section 1105(b) of the Ethics Act and its subsections detail the financial disclosure that a person required to file the Statement of Financial Interests form must provide. Subject to certain statutory exceptions not applicable to this matter, Section 1105(b)(4) of the Ethics Act requires the filer to disclose on the Statement of Financial Interests the name and address of each creditor to whom is owed in excess of $6,500 and the interest rate thereon. Subject to certain statutory exceptions not applicable to this matter, Section 1105(b)(5) of the Ethics Act requires the filer to disclose on the Statement of Financial Interests the name and address of any direct or indirect source of income totaling in the aggregate $1,300 or more. We shall now summarize the relevant facts. Respondent was employed by PennDOT as a Transportation Facilities Administrator !from approximately July 13, 1999, through January 3, 2008. Respondent was the Transportation Facilities Administrator I assigned to Engineering Districts 11 -0 and 12 -0. Kirkpatrick, 08 -022 Page 26 The Position Description for the Transportation Facilities Administrator I for Engineering Districts 11 -0 and 12 -0 defines the position purpose as participation in the planning, assigning, directing, and coordinating of services associated with building design, maintenance, construction, and repair for all facilities within Transportation Engineering District 11 -0 and 12 -0 and includes, inter alia, the following duties and responsibilities: (1) Maintaining and managing district four -year facilities plans and budgeting and ensuring that funding is spent wisely; (2) Planning and coordinating services associated with building maintenance, design construction, and repair district wide; Developing specifications and scope of work for facilities projects and services; (3) (4) Developing and completing initial contract bid documents and associated ITQ contract requirements involved in the competitive bidding process; (5) Directing the preparation of facility design, construction, renovation, and demolition projects with input from agency consultative staff; (6) Scheduling and conducting required project management meetings, including pre -bid, pre -job, interim job, final inspection, and other meetings as required; Conducting inspections of project work sites and ensuring contractor compliance and performance in accordance with contract specifications and scope of work; and (8) Evaluating project status and percentage of completion, and processing contractor invoices and associated departmental forms required for payment of invoices in a timely manner. (7) See, Fact Finding 13. Respondent filed Statements of Financial Interests with PennDOT as detailed in Fact Findings 78 -82. Respondent failed to file his 2007 calendar year Statement of Financial Interests with PennDOT by May 1, 2008. In May 2008 Respondent was made aware of his failure to file the form, but Respondent did not file a Statement of Financial Interests for calendar year 2007 until April 15, 2009. Respondent failed to disclose the identity of his automobile creditor on his Statement of Financial Interests filed for calendar year 2006. Respondent's Statement of Financial Interests for calendar year 2006 documents only "Auto Loan," "Bal. 9300.00," and "6.5" (interest) under "Creditors." Respondent did not disclose the actual name of the creditor or the address of the creditor as required by the Ethics Act. Respondent has admitted that he failed to disclose all direct /indirect sources of income on his Statement of Financial Interests filed for calendar year 2005. The admitted Findings include that Respondent was employed with Sony Technology of Pittsburgh from at least October 20, 2004, through April 20, 2005. Respondent disclosed income in the amount of $5,500.00 from Sony Technology during the period of October 20, 2004, through April 20, 2005, on another financial disclosure form required by the Governor's Kirkpatrick, 08 -022 Page 27 Code of Conduct. Respondent did not disclose Sony Technology of Pittsburgh as a direct or indirect source of income on his 2005 calendar year Statement of Financial Interests. Having summarized the above relevant facts, we must now determine whether the actions of Respondent Kirkpatrick violated Sections 1104(a) and 1105(b)(4) -(5) of the Ethics Act. We initially determine that as a Transportation Facilities Administrator I for PennDOT from approximately July 13, 1999, through January 3, 2008, Respondent was a public employee subject to the provisions of the Ethics Act, and in particular, the requirements for filing Statements of Financial Interests pursuant to the Ethics Act. This conclusion is based upon the job duties set forth at Fact Finding 13, which indicate clearly that Respondent had the power /authority to take or recommend official action of a non - ministerial nature with respect to activities where the official action had an economic impact that was greater than de minimis on the interests of another person. For example, Respondent had the power /authority to: manage district four -year facilities plans and budget and ensure that funding was spent wisely; develop contract specifications, scopes of work, initial contract bid documents, and contract requirements; conduct inspections of project work sites; and ensure contractor compliance and performance in accordance with contract specifications and scopes of work. Therefore, Respondent was a "public employee" subject to the Ethics Act, and he was required to file Statements of Financial Interests pursuant to the Ethics Act. In applying the allegations to the facts of record, we hold that Respondent violated Section 1104(a) of the Ethics Act when he failed to file a Statement of Financial Interests for calendar year 2007 with PennDOT by May 1, 2008. Despite being informed in May 2008 of the delinquency of the form, Respondent did not file a Statement of Financial Interests for calendar year 2007 until April 15, 2009. We hold that Respondent violated Section 1105(b)(4) of the Ethics Act when he failed to disclose the identity (name and address) of his automobile creditor on his Statement of Financial Interests filed for calendar year 2006. Respondent provided some information regarding the automobile loan, but he did not disclose the name or address of the creditor as required. Additionally, we hold that Respondent violated Section 1105(b)(5) of the Ethics Act when he failed to disclose all direct /indirect sources of income on his Statement of Financial Interests filed for calendar year 2005. As for the allegation that Respondent failed to disclose all direct /indirect sources of income on his Statement of Financial Interests filed for the 2004 calendar year, it appears that the Investigative Division in the exercise of its prosecutorial discretion has elected to non pros that particular allegation. To the extent he has not already done so, Respondent is directed to file amended Statements of Financial Interests with PennDOT for calendar years 2005 and 2006 disclosing all required information, and to forward copies of all such filings to this Commission for compliance verification purposes by no later than the thirtieth (30) day after the mailing date of this adjudication and Order. IV. CONCLUSIONS OF LAW: 1. As a Transportation Facilities Administrator I for the Pennsylvania Department of Transportation ( "PennDOT ") from approximately July 13, 1999, through January 3, 2008, Respondent James Kirkpatrick ( "Kirkpatrick ") was a public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Kirkpatrick, 08 -022 Page 28 2. Kirkpatrick violated Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), when he failed to file a Statement of Financial Interests for calendar year 2007 with PennDOT by May 1, 2008. 3. Kirkpatrick violated Section 1105(b)(4) of the Ethics Act, 65 Pa.C.S. § 1105(b)(4), when he failed to disclose the identity (name and address) of his automobile creditor on his Statement of Financial Interests filed for calendar year 2006. 4. Kirkpatrick violated Section 1105(b)(5) of the Ethics Act, 65 Pa.C.S. § 1105(b)(5), when he failed to disclose all direct /indirect sources of income on his Statement of Financial Interests filed for calendar year 2005. In Re: James Kirkpatrick, Respondent ORDER NO. 1519 File Docket: 08 -022 Date Decided: 7/8/09 Date Mailed: 7/10/09 1 Respondent James Kirkpatrick ( "Kirkpatrick "), a public employee in his capacity as a Transportation Facilities Administrator I for the Pennsylvania Department of Transportation ("PennDOT ") from approximately July 13, 1999, through January 3, 2008, violated Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), when he failed to file a Statement of Financial Interests for calendar year 2007 with PennDOT by May 1, 2008. 2. Kirkpatrick violated Section 1105(b)(4) of the Ethics Act, 65 Pa.C.S. § 1105(b)(4), when he failed to disclose the identity (name and address) of his automobile creditor on his Statement of Financial Interests filed for calendar year 2006. 3. Kirkpatrick violated Section 1105(b)(5) of the Ethics Act, 65 Pa.C.S. § 1105(b)(5), when he failed to disclose all direct /indirect sources of income on his Statement of Financial Interests filed for calendar year 2005. 4. To the extent he has not already done so, Kirkpatrick is directed to file amended Statements of Financial Interests with PennDOT for calendar years 2005 and 2006 disclosing all required information, and to forward copies of all such filings to thus Commission for compliance verification purposes by no later than the thirtieth (30 day after the mailing date of this Order. BY THE COMMISSION, Louis W. Fryman, Chair