HomeMy WebLinkAbout1576 Obernier
In Re: Josef G. Obernier, : File Docket: 09-040
Respondent : X-ref: Order No. 1576
: Date Decided: 12/15/10
: Date Mailed: 12/20/10
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Raquel K. Bergen
Nicholas A. Colafella
Mark Volk
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.
Obernier, 09-040
Page 2
I.ALLEGATIONS:
That Josef G. Obernier, a public official/public employee in his capacity as a
Supervisor for West Brandywine Township, Chester County, violated Sections 1103(a),
1103(f), and 1105(b) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §§ 1103(a),
1103(f) and 1105(b), when the Township awarded contracts in excess of $500.00 to a
business with which he is associated, OAC Network Solutions, without an open and public
process; when he approved payments to OAC Network Solutions; and when he failed to
disclose all sources of income on Statements of Financial interests filed for the 2006, 2007
and 2008 calendar year[s].
II.FINDINGS:
1. Josef Obernier has served as a Supervisor for West Brandywine Township
(Township), Chester County since January 6, 1992.
a. Obernier has served as Chairman and Vice-Chairman of the Board of
Supervisors (Board) at various times since serving as a Township
Supervisor.
2. Obernier served as the Tax Collector for West Brandywine Township from 1988
until January 6, 1992.
a. Obernier resigned upon taking office as Township Supervisor.
3. West Brandywine Township is a second-class township governed by a three
Member Board of Supervisors.
a. The Board of Supervisors rotates the Chairmanship, Vice-Chairmanship and
Chairmanship of the Municipal Authority each year.
b. The Board of Supervisors holds two (2) regular monthly meetings.
c. Occasional special meetings are held throughout the year.
4. Voting at West Brandywine Township meetings occurs by a yes/no vote.
a. Voting on routine monthly issues such as the approval of the payment of bills
occurs in a group yes/no fashion.
1. Any abstentions or objections made during the group vote are
specifically noted in the minutes.
5. The Township Manager and all three Supervisors have signature authority on all
Township accounts.
a. Township checks require the signatures of the Township Manager and at
least two of the Supervisors.
b. Checks are executed with original signatures.
6. Josef Obernier has operated a computer software business since on or around
1979.
Obernier is the sole proprietor of the business.
Obernier, 09-040
Page 3
7. At the time when Obernier established the computer business, it was known as
Obernier Applied Computing.
a. Obernier changed the name to OAC Network Solutions in 1999.
b. The number of employees has varied over the years from 3 to 6 employees.
1. Obernier’s spouse, Nancy Obernier, serves as the Managing Partner
and Project Coordinator.
8. A Fictitious Name Registration was filed with the Pennsylvania Department of State
for OAC Network Solutions on October 25, 1999.
a. Josef G. Obernier, Sr. was listed as the agent of the business.
b. The nature of the business was computer and network installation and
support.
9. OAC Network Solutions is a full service computer/network consulting firm
specializing in the design and implementation of new server systems.
a. OAC also provides maintenance of current IT architecture that also offers
programming services for multiple platforms.
10. Josef Obernier has been providing computer consulting work to West Brandywine
Township through Obernier Applied Computing and later OAC Network Solutions
since on or around 1986.
a. Obernier provided computer services to the Township prior to his election to
the Board.
b. Obernier’s company provides computer services to other municipalities in
the Chester County area.
11. After Obernier became a Township Supervisor in 1992, quotes were obtained by
the West Brandywine Township Board of Supervisors for computer consulting work
at which time Obernier disclosed to the other Supervisors that he had a possible
conflict of interest so he would not take part in actions or discussions of the Board
of Supervisors regarding this matter.
a. Obernier made the disclosure because his company had been providing
computer services to the Township prior to his election to the Board.
b. Between 1992 and 1999, Obernier did not participate in Board discussions
and actions regarding computer consulting contracts.
12. In or around 1999 West Brandywine Township began participating in the COSTARS
Program to purchase products and services.
a. The Township used the program in an effort to save money because of the
various costs involved with the advertising and soliciting of bids and to
receive more competitive pricing when making purchases.
b. The Township purchased various items that included equipment, services,
supplies and vehicles through the program.
Obernier, 09-040
Page 4
c. The decision to use the COSTARS Program was discussed by West
Brandywine Township Manager Ron Rambo along with the Board of
Supervisors.
1. Obernier participated in these discussions as a Township Supervisor
and participated in the decision to participate in COSTARS.
13. COSTARS is the Commonwealth of Pennsylvania’s cooperative purchasing
program.
a. The COSTARS approach to cooperative purchasing uses the purchasing
power of local entities to obtain more competitive pricing and choice than
individual purchasers might be able to obtain on their own.
14. The passage of the Commonwealth Procurement Code, Act 57 of 1998, permitted
local public procurement units and state-affiliated entities to engage in cooperative
purchasing with the Commonwealth of Pennsylvania.
a. COSTARS is to be used by only registered local municipalities.
1. West Brandywine Township is a registered local municipality with the
ability to purchase products and services.
b. COSTARS Contracts differ from statewide contracts in that statewide
contracts are available to the entire Commonwealth while COSTARS
Contracts are available only to registered municipalities.
1. Companies on Statewide Contract are authorized to allow local
municipalities to “piggyback” off of their contracts.
15. Municipalities purchasing off a COSTARS Contract are not required to bid
purchases because the company is on the COSTARS Contract.
16. The COSTARS Program includes Information Technology (IT) Services Invitation to
Qualify (ITQ) Statewide Contracts.
a. Local Public Procurement Units such as municipalities may use this contract
in accordance with the COSTARS Program.
1. As a registered local municipality, West Brandywine Township has
the ability to purchase IT Services ITQ Contracts.
b. The Department of General Services (DGS) Bureau of Procurement acts as
the facilitator for the purchasers who participate in this contract.
17. Companies interested in participating in the Master IT Services ITQ Contract
required the following:
a. Submit a complete proposal to the ITQ Program office.
b. Have a minimum of two (2) years in business prior to the proposal submittal
date for the ITQ.
c. Have, or had, a contracting role in at least three (3) projects relevant to each
service category for which you are attempting to pre-qualify.
Obernier, 09-040
Page 5
d. Achieve an acceptable score, regarding project performance, as determined
by the Commonwealth, for each of the three (3) required client references
submitted for each service category for which you are attempting to pre-
qualify.
18. The IT Services ITQ Contract was a fixed price deliverables based project.
a. Time and materials type of services can be included as part of the
deliverables-based project under the following circumstances:
1. The project involves updating and maintaining software.
2. The project involves a portion of work that has no definitive timeline or
deliverable that can be realistically projected.
3. The project involves the use of alternative maintenance or
development that is not amenable to deliverable-based format.
19. OAC Network Solutions first applied to become an IT Services ITQ Supplier in or
around 2000.
a. Obernier submitted an application on April 20, 2000, listing himself as the
owner of OAC Network Solutions.
20. On June 16, 2000, OAC was approved by the Commonwealth as a state approved
vendor of IT Services for LAN development and upgrades.
a. The contract number was ME 2081366-68.
b. The period of the contract was from July 1, 2000, until June 30, 2003.
21. After being authorized as an approved vendor by the Commonwealth under the IT
Services ITQ Contract, OAC Network Solutions began performing computer
consulting services for West Brandywine Township under the COSTARS Program.
a. OAC performed the computer consulting work without bids or quotes as a
result of West Brandywine Township using the COSTARS Program.
1. One other company, Softmart, located in Downingtown, Pennsylvania,
was a COSTARS vendor but not selected.
2. Softmart did not provide a quote when requested by Rambo in 2009.
(See, Finding No. 35).
b. OAC Network Solutions was contacted by Township Manager Rambo
whenever computer problems arose or services were needed.
22. The decision to use OAC Network Solutions by West Brandywine Township was
made by Township Manager Ron Rambo.
a. Rambo’s decision was based on OAC being an approved COSTARS vendor
located in close proximity to the Township.
b. Obernier did not solicit or request the business from West Brandywine
Township.
Obernier, 09-040
Page 6
c. The decision to utilize OAC through the COSTARS Program was not
discussed or approved by the Board.
23. In June 2004 [the] DGS Bureau of Procurement created a new IT Services ITQ
Contract.
a. The contract number was 481350.
b. The period of the contract was from July 1, 2004, until June 30, 2009.
24. On June 24, 2005, OAC Network Solutions submitted a proposal under Master IT
Services ITQ Contract # 481350 to be an approved vendor.
a. The service category was Consulting Services- LANs/WANs.
1. This includes, but is not limited to the development of planning
documents pertinent to the building of a new LAN system, the
upgrading of an existing LAN system or the integration of two or more
LANs, or the integration of two or more LANs via a WAN. The
definition of user requirements, outlining possible alternatives, and
the recommendation of a solution may be included in this activity. The
Commonwealth may require any of the following areas to be
addressed: LAN business and technical requirements, connectivity
and interoperability, feasibility and constraints, cost/benefit analysis,
workforce requirements, organizational impact on business
processes, security requirements, etc. In addition, this includes the
development of design documents pertinent to the building of a new
LAN, the upgrading of an existing LAN, the integration of two or more
LANs, or the integration of two or more LANs via a WAN.
Determination of logical relationships and physical specifications are
to be included in this activity.
b. The contract was approved by the Bureau of Procurement for DGS on July
20, 2005.
The contract number was ME 481350 9J.
The contract period was from July 1, 2004, through June 30, 2009.
The contract signature page was signed by Josef Obernier as the sole
proprietor of OAC Network Solutions.
25. OAC Network Solutions performed computer consulting work from July 1, 2004,
until July 20, 2005, under Contract # 481350, even though the company had not yet
been approved by DGS under IT Services ITQ Contract #481350.
a. During this time period, OAC performed computer consulting work for West
Brandywine Township.
1. OAC also performed services for other municipalities through
COSTARS during this period.
b. The decision to use OAC Network Solutions during this period was made by
Township Manager Ron Rambo.
26. On March 11, 2009, DGS created a new IT Services ITQ Contract to replace
Contract # 481350.
Obernier, 09-040
Page 7
a. The new IT Services ITQ Contract number was 4400004480.
b. The contract period was from July 1, 2009, until June 30, 2014.
27. OAC Network Solutions initially did not renew its IT Services ITQ Contract with DGS
under Contract 4400004480.
a. DGS Bureau of Procurement permits a transition period of six (6) months
that allows vendors to renew their contract[s].
28. On October 14, 2009, Nancy Obernier sent an e-mail to Donald Bauer, ITQ
Administrator for the Bureau of Procurement of DGS, regarding the IT Services ITQ
Contract, stating as follows:
Don,
Attached is the Contract Signature Page for Contract Number 4400004480. Please
put a rush on it, as we had not been aware that our previous contract had expired in
June and are currently performing work for a municipality.
Thank you for all assistance in this matter.
Nancy Obernier
OAC Network Solutions
a. The contract signature page was signed by Josef Obernier.
b. The municipality Nancy Obernier was referring to was West Brandywine
Township.
29. OAC Network Solutions was approved by DGS Bureau of Procurement under IT
Services ITQ Contract # 4400004480 on May 10, 2010.
30. In October 2009 Rambo became aware that the OAC Network Solutions COSTARS
contract with DGS Bureau of Procurement had expired.
31. At the West Brandywine Township Supervisors meeting on October 15, 2009,
Rambo solicited input from the Board on how to proceed with computer services.
a. The Board of Supervisors suggested that if the current vendor did not regain
certification to go with an RFP that included travel time.
32. On November 3, 2009, Rambo prepared an RFP for computer services that was as
follows:
a. General Support for West Brandywine Township.
1. Network Administration
2. Management of network Resources
3. Administration of Internet connectivity and hardware software
4. Maintenance and support of e-mail system
5. Maintenance and support of backup system
Obernier, 09-040
Page 8
6. Troubleshooting of hardware/software problems
7. Installation and configuration of new hardware/software
8. Intruder security
9. Development of procedures for database maintenance and security
10. Maintenance of Township wide intranet Police, Administration, Road
Department
11. Staff training and education of the network system
12. Full Blackberry support
b. Administration Server
File Server
Mail/Scan & Backup Server
1 Firewall
All computers running Linux
8 stations Windows 2000
c. Police Server
File Server Windows 2003 & wireless network
4 stations win XP
Backup Server-Linux
d. All proposals were to include applicable billing rates, i.e., onsite billing rate,
remote billing rate and travel time.
33. The RFP for computer support was sent to the following businesses by West
Brandywine Township Manager Ron Rambo on November 13, 2009:
a. OAC Applied Computing, Malvern, PA
b. Omega Systems, West Lawn, PA
c. SSD, Inc., New Castle, DE
d. Miles Technologies, Inc., Kimberton, PA
e. Custom Computer, Ephrata, PA
f. Softmart, Downingtown, PA
34. At the West Brandywine Township Supervisors meeting on December 3, 2009,
Josef Obernier read the following statement regarding the RFP’s for computer
services:
Chairman Obernier read a statement out loud that being the owner of
OAC Network Solutions, [sic] responded to an advertisement for
computer services and submitted a bid. This submission represents a
conflict of interest as a WBT Supervisor and is abstaining from
discussing or voting on this item unless a tie vote requires his vote to
break the tie.
Obernier, 09-040
Page 9
35. The following quotes were received by the Township:
VendorQuote
OAC Network Solutions, Inc $125/hr, no travel time 24/7
Miles Technologies, Inc. $3,200 per month
Softmart Provided no quote
SSD Technology, Inc. $120/hr, travel time if 1 hour each time
Custom Computer $1,600 per month received late, not accepted
Omega Systems $95/hr between 8-5, time and half during other
hours and $35 travel time
a. Township Manager Rambo’s recommendation to the Board of Supervisors
was to utilize OAC Network Solutions because there was a greater need for
onsite work which would be less expensive if utilizing OAC Network
Solutions.
36. At the West Brandywine Township Supervisors meeting on December 17, 2009, the
Township Supervisors voted to select OAC Network Solutions to perform the
computer services. Minutes confirm the following:
Vice-Chairman Thomas McCaffery motioned to stay with OAC
Network Solutions for the next year noting that the township could
also call somebody else. Supervisor Carl Lindborg seconded the
motion. Board members McCaffrey and Lindborg voted aye.
Chairman Obernier abstained being he is the owner of OAC Network
Solutions and it would be a conflict of interest.
37. The type of computer services provided by OAC to West Brandywine Township as
a COSTARS vendor from 2004 through 2009 included setting up a wireless
network, setting up e-mail, installing anti-virus programs and resolving spam issues.
38. The following invoices were submitted to West Brandywine Township by OAC
Network Solutions for computer services that were provided from 2004 through
2009:
Date Invoice Number Amount
10/04/04 962831 $726.00
11/01/04 962853 $1,001.00
01/07/05 962905 $1,221.00
02/04/05 962914 $1,763.00
03/28/05 962953 $3,146.00
05/02/05 962982 $385.00
06/01/05 963013 $1,298.00
07/13/05 963063 $1,243.00
07/26/05 963076 $308.00
09/02/05 963115 $330.00
01/19/06 963223 $418.00
01/30/06 963235 $363.00
03/31/06 963288 $1,573.00
05/01/06 963312 $726.00
06/30/06 963366 $979.00
08/01/06 963383 $1,606.00
09/01/06 963406 $803.00
11/30/06 963483 $839.00
01/02/07 963528 $1,892.00
02/08/07 963551 $2,420.00
Obernier, 09-040
Page 10
03/13/07 963575 $1,870.70
04/03/07 963610 $251.00
05/04/07 963645 $88.00
06/01/07 963672 $2,684.00
06/21/07 963706 $209.00
09/01/07 963760 $1,925.00
12/04/07 963860 $220.00
01/08/08 963904 $22.00
03/05/08 964010 $22.00
05/23/08 964099 $450.00
07/25/08 964183 $846.00
08/30/08 964227 $492.00
10/01/08 964251 $216.50
01/05/09 964368 $521.50
01/19/09 964388 $718.75
02/02/09 964410 $1,093.75
05/01/09 964483 $625.00
05/27/09 964504 $937.50
07/28/09 964622 $31.25
08/17/09 964629 $1,187.50
08/24/09 964655 $968.75
10/01/09 964695 $348.00
11/02/09 964710 $437.50
12/07/09 964736 $1,750.00
12/29/09 964783 $218.75
39. Between September 2004 and September 2009, Obernier participated in actions as
a West Brandywine Township Supervisor to approve the payment of bill lists that
included the payments made to OAC Network Solutions and signed Township
checks issued to OAC Network Solutions in his capacity as a Township Supervisor:
Check Date Check Check Amount Obernier’s Vote Approving Obernier’s Sign
Number Payment of Bills as Signatory
09/16/04 10195 $2,779.50 Yes Yes
10/21/04 10293 $726.00 Yes Yes
01/20/05 10476 $1,221.00 Yes Yes
02/17/05 10566 $1,763.00 Yes Yes
05/19/05 10869 $385.00 Yes Yes
06/02/05 10919 $3,146.00 Yes Yes
06/16/05 10951 $1,298.00 Yes No
07/21/05 11042 $1,243.00 Yes Yes
08/18/05 11095 $308.00 Yes Yes
09/15/05 11233 $330.00 Yes Yes
12/15/05 11489 $1,175.00 Yes No
02/16/06 11615 $781.00 Yes No
04/06/06 11762 $1,573.00 Yes Yes
04/20/06 11811 $1,804.00 Yes No
05/04/06 11927 $726.00 Yes No
06/15/06 12052 $1,639.00 Yes No
08/17/06 12169 $2,585.00 Yes No
Obernier, 09-040
Page 11
09/21/06 12257 $803.00 Yes No
11/02/06 12356 $88.00 Yes No
11/16/06 12398 $1,749.00 Yes Yes
12/07/06 12440 $165.00 Yes No
12/21/06 12474 $839.00 Yes Yes
02/01/07 12541 $1,892.00 Absent No
03/01/07 12628 $2,420.00 Yes Yes
04/05/07 12718 $1,870.00 Yes Yes
04/19/07 12761 $251.00 Yes Yes
05/17/07 12849 $88.00 Yes Yes
06/07/07 12902 $2,684.00 Yes Yes
07/19/07 12960 $209.00 Yes Yes
09/20/07 13103 $1,925.00 Yes Yes
01/17/08 13317 $242.00 Yes Yes
03/20/08 13486 $22.00 Yes Yes
06/05/08 13724 $450.00 Yes Yes
08/21/08 13862 $846.00 Yes Yes
09/18/08 13906 $492.00 Yes Yes
10/16/08 13982 $216.50 Yes Yes
02/05/09 14124 $2,334.00 Yes No
06/04/09 14368 $937.50 Absent No
06/18/09 14396 $625.00 Yes Yes
08/06/09 14473 $31.25 Yes No
09/03/09 14521 $1,187.50 Yes No
40. The following payments were made to OAC Network Solutions by West Brandywine
Township from September 2004 through October 2009 for computer services:
YearAmount
2004 $ 3,505.50
2005 $10,869.00
2006 $12,752.00
2007 $11,339.00
2008 $ 2,268.50
2009 $ 5,115.25
Total $45,849.25
41. Beginning in November 2009 and continuing to the present time, Obernier has
abstained from voting to approve the payment of bills for OAC Network Solutions,
and he has not signed any Township checks for payments made to OAC Network
Solutions.
42. Obernier realized profit percentages for OAC Network Solutions for the years 2004
through 2009 as follows:
a. 2004: Gross Profit $319,216
Percent Profit .7 %
b. 2005: Gross Profit $270,697
Percent Profit 1.8 %
Obernier, 09-040
Page 12
c. 2006: Gross Profit $260,352
Percent Profit 10 %
d. 2007: Gross Profit $259,531
Percent Profit .2 %
e. 2008: Gross Profit $307,778
Percent Profit 7 %
f. 2009: Gross Profit $237,266
Percent Profit -.2 %
43. Based on the percent of profit, OAC Network Solution’s net profit on the business
received from West Brandywine Township from 2004 through 2009 in which Josef
Obernier participated in approving the payment of bills that included payments
made to OAC Network Solutions totaled $1,456.68 as follows:
Amount made from WestProfit
YearBrandywine TownshipPercent ProfitAmount
2006 $12,752.00 10 % $ 1,275.20
2007 $11,339.00 .2 % $ 22.68
2008 $ 2,268.50 7 % $ 158.80
2009 $ 5,115.25 -.2% $ 0
Total $ 1,456.68
44. Josef Obernier realized a private pecuniary gain of $1,676.71 as a result of
approving payments to OAC Network Solutions for performing computer consulting
work for West Brandywine Township.
The following findings relate to Obernier’s failure to disclose all sources of
income in excess of $1,300.00 on his Statements of Financial Interests filed
for the calendar years 2006, 2007 and 2008.
45. As a West Brandywine Township Supervisor, Josef Obernier is required to file
annually a Statement of Financial Interests (SFI) by May 1st of each year disclosing
financial interests for the prior calendar year.
46. Obernier filed SFIs for calendar years 2005, 2006, 2007, 2008 and 2009 with West
Brandywine Township which included the following disclosures:
a. Calendar Year: 2005
Filed: 2/10/06 on SEC-1 REV 01/06
Public Position: Township Supervisor
Political Subdivision: West Brandywine Township
Occupation or Profession: Computer Consultant/Self-employed
Direct/indirect sources of income: OAC Network Solutions
Office, Directorship, or employment in any business: OAC Network
Solutions/Owner
Financial interests in any legal entity and business for profit: OAC
Network Solutions 100% interest held
b. Calendar Year: 2006
Filed: 1/15/2007 on SEC-1 REV. 01/07
Public Position: Township Supervisor
Political Subdivision: West Brandywine Township
Occupation or Profession: Computer Consultant/Self-employed
Obernier, 09-040
Page 13
Direct/indirect sources of income: OAC Network Solutions
Office, Directorship, or employment in any business: OAC Network
Solutions/Owner
Financial interests in any legal entity and business for profit: OAC
Network Solutions 100% interest held
c. Calendar Year: 2007
Filed: 1/19/2008 on SEC-1 REV. 01/08
Occupation or Profession: Computer Consultant/Self-employed
Direct/indirect sources of income: OAC Network Solutions
Office, Directorship, or employment in any business: OAC Network
Solutions/Owner
Financial interests in any legal entity and business for profit: OAC
Network Solutions 100% interests held
d. Calendar Year: 2008
Filed: 1/14/2009 on SEC-1 REV. 01/09
Occupation or Profession: Computer Consultant/Self-employed
Direct/indirect sources of income: OAC Network Solutions
Office, Directorship, or employment in any business: OAC Network
Solutions/Owner
Financial interests in any legal entity and business for profit: OAC
Network Solutions 100% interests held
e. Calendar Year: 2009
Filed: 1/16/10 on SEC-1 REV. 01/10
Occupation or Profession: Computer Consultant/Self-employed
Direct/indirect sources of income: OAC Network Solutions
Office, Directorship, or employment in any business: OAC Network
Solutions/Owner
Financial interests in any legal entity and business for profit: OAC
Network Solutions 100% interests held
47. As a West Brandywine Township Supervisor, Obernier earned the following
wages as reported on W-2 Wage and Tax Statements:
a. 2005: $2,500.16
b. 2006: $2,500.16
c. 2007: $7,007.04
d. 2008: $2,596.00
e. 2009: $2,499.90
48. Obernier did not include income he made as a Member of the Board of Supervisors
of West Brandywine Township for calendar years 2005 through 2009.
49. On September 28, 2010, Obernier filed amended SFIs for calendar years 2004
through 2009 on Form SEC-1 REV. 01/10.
a. Obernier disclosed West Brandywine Township as a direct or indirect source
of income for each year on the amended forms for the calendar years 2004
through 2009.
III.DISCUSSION:
Obernier, 09-040
Page 14
As a Supervisor for West Brandywine Township (“Township”), Chester County,
since January 6, 1992, Respondent Josef G. Obernier (hereinafter also referred to as
“Respondent,” “Respondent Obernier,” and “Obernier”) 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 Obernier violated Sections 1103(a), 1103(f), and 1105(b) of
the Ethics Act, 65 Pa.C.S. §§ 1103(a), 1103(f) and 1105(b): (1) when the Township
awarded contracts in excess of $500.00 to a business with which he is associated, “OAC
Network Solutions” (“OAC”), without an open and public process; (2) when he approved
payments to OAC; and (3) when he failed to disclose all sources of income on Statements
of Financial interests (“SFIs”) filed for the 2006, 2007 and 2008 calendar years.
Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is
prohibited from engaging in conduct that constitutes a conflict of interest:
§ 1103. Restricted activities
(a)Conflict of interest.—
No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
65 Pa.C.S. § 1103(a).
The 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
Obernier, 09-040
Page 15
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).
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.
Section 1105(b) of the Ethics Act and its subsections detail the financial disclosure
that a person required to file the SFI form must provide.
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 SFI the name and address
of any direct or indirect source of income totaling in the aggregate $1,300 or more.
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 Obernier has served as a Township Supervisor since January 6, 1992.
Obernier has served as Chairman and Vice-Chairman of the Township Board of
Supervisors (“Board”) at various times while serving as a Township Supervisor.
The Board consists of three Members. The Township Manager and all three
Supervisors have signature authority on all Township accounts. Township checks require
the signatures of the Township Manager and at least two of the Supervisors.
In a private capacity, Obernier is the sole proprietor of OAC, a computer/network
consulting firm. Obernier’s spouse, Nancy Obernier, serves as the Managing Partner and
Project Coordinator of OAC. Obernier has operated the business since on or around
1979. Prior to 1999, the business was named “Obernier Applied Computing.”
Through his aforesaid business, Obernier has been providing computer consulting
work to the Township since on or around 1986. After Obernier became a Township
Supervisor in 1992, quotes were obtained by the Board for computer consulting work. At
that time, Obernier disclosed to the other Supervisors that he had a possible conflict of
interest and would not take part in actions or discussions of the Board regarding the
Obernier, 09-040
Page 16
matter. Between 1992 and 1999, Obernier did not participate in Board discussions and
actions regarding computer consulting contracts.
The Commonwealth of Pennsylvania has a cooperative purchasing program named
“COSTARS.” Under the COSTARS program, companies on statewide contracts may
permit registered local municipalities to “piggyback” off of their contracts. Municipalities
purchasing off a COSTARS contract are not required to bid such purchases.
The Township is a registered local municipality with the ability to purchase products
and services, including Information Technology (“IT”) services, through COSTARS.
The Pennsylvania Department of General Services (“DGS”) Bureau of Procurement
acts as the facilitator for purchasers who participate in IT Services Invitation to Qualify
(“ITQ”) Statewide Contracts.
Commencing in 2000, OAC was a state approved vendor for various IT related
services. After becoming an approved vendor under the IT Services ITQ Contract, OAC
began performing computer consulting services for the Township under COSTARS. OAC
performed the computer consulting work without bids or quotes as a result of the Township
using COSTARS.
The decision for the Township to use OAC was made by Township Manager Ron
Rambo (“Rambo”). Rambo’s decision was based on OAC being an approved COSTARS
vendor located in close proximity to the Township. Obernier did not solicit or request the
business from the Township. The decision to utilize OAC through COSTARS was not
discussed or approved by the Board.
On June 24, 2005, OAC submitted a proposal under Master IT Services ITQ
Contract # 481350 to be an approved vendor for the service category of Consulting
Services- LANs/WANs. The contract was approved by the DGS Bureau of Procurement
on July 20, 2005. The contract period was from July 1, 2004, through June 30, 2009.
OAC performed computer consulting work from July 1, 2004, until July 20, 2005,
under Contract # 481350, even though OAC had not yet been approved by DGS under
that contract. During this time period OAC performed computer consulting work for the
Township. The decision to use OAC during this period was made by Rambo.
On March 11, 2009, DGS created a new IT Services ITQ Contract to replace
Contract # 481350. The new IT Services ITQ Contract number was 4400004480. The
contract period was from July 1, 2009, until June 30, 2014.
DGS permits a transition period of six months for vendors to renew their contracts.
OAC initially did not renew its IT Services ITQ Contract with DGS under Contract
4400004480. On October 14, 2009, Nancy Obernier sent an e-mail to the ITQ
Administrator for DGS’s Bureau of Procurement forwarding the Contract Signature Page
for Contract Number 4400004480 and stating: “Please put a rush on it, as we had not
been aware that our previous contract had expired in June and are currently performing
work for a municipality.” Fact Finding 28. The municipality to which Nancy Obernier
referred was the Township.
OAC was not approved by DGS under IT Services ITQ Contract # 4400004480 until
May 10, 2010. In October 2009 Rambo became aware that the OAC COSTARS contract
with DGS had expired. At the Township Supervisors meeting on October 15, 2009, Rambo
solicited input from the Board on how to proceed with computer services. The Board
suggested that if the current vendor did not regain certification to go with an RFP that
included travel time.
Obernier, 09-040
Page 17
On November 13, 2009, Rambo sent an RFP for computer services to six
businesses including OAC. The Township received quotes as listed in Fact Finding 35.
At the Township Supervisors meeting on December 3, 2009, Obernier indicated that
having submitted a bid as the owner of OAC, he had a conflict of interest as to the RFP in
his capacity as a Township Supervisor. Obernier indicated that he would be abstaining
from discussing or voting on this item unless his vote would be required to break a tie vote.
At the Township Supervisors meeting on December 17, 2009, the Township
Supervisors voted to select OAC to perform the computer services. Minutes confirm that
Obernier abstained due to a conflict of interest based upon his ownership of OAC.
From September 2004 through October 2009, the Township paid a total of
$45,849.25 to OAC for computer services. As detailed in Fact Finding 39, between
September 2004 and September 2009, Obernier participated in actions as a Township
Supervisor to approve the payment of bill lists that included the payments made to OAC
and signed as an authorized Township signatory Township checks issued to OAC. The
parties have stipulated that Obernier realized a private pecuniary gain of $1,676.71 as a
result of approving payments to OAC for performing computer consulting work for the
Township. Fact Finding 44.
As for Obernier’s SFIs, Obernier did not include the Township as a direct/indirect
source of income on his SFIs for calendar years 2005, 2006, 2007, 2008 and 2009,
despite having received compensation from the Township in excess of $1,300.00 in each
of those years. On September 28, 2010, Obernier filed amended SFIs for calendar years
2004 through 2009, disclosing the Township as a direct/indirect source of income for each
of those years.
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 no violation of Section 1103(f) of the Public
Official and Employee Ethics Act, 65 Pa.C.S.
§1103(f), occurred when the Township awarded
contracts in excess of $500.00 to a business
with which [Obernier is] associated, OAC
Network Solutions, as the initial work was
completed through a state contract and in that
the Township issued RFPs for the additional
work.
b. That an unintentional violation of Section
1103(a) of the Public Official and Employee
Ethics Act, 65 Pa.C.S. §1103(a), occurred in
relation to Obernier’s approval of payments to
OAC Network Solutions, a business with which
he is associated.
c. That a violation of Section 1105(b) of the Public
Official and Employee Ethics Act, 65 Pa.C.S.
§1105(b), occurred when Obernier failed to
Obernier, 09-040
Page 18
disclose all sources of income on his Statements
of Financial Interests filed for [the] 2006, 2007
and 2008 calendar years.
4. Obernier agrees to make payment in the amount of $1,275.20
in settlement of this matter payable to West Brandywine
Township and forwarded to the Pennsylvania State Ethics
Commission within thirty (30) days of the issuance of the final
adjudication in this matter.
5. To the extent he has not already done so, Obernier agrees to
file Amended Statements of Financial Interests for calendar
years 2006, 2007 and 2008 disclosing all sources of income
with West Brandywine Township, and forward copies to this
Commission.
6. The Investigative Division will recommend that the State Ethics
Commission take no further action in this matter; and make no
specific recommendations to any law enforcement or other
authority to take action in this matter. Such, however, does
not prohibit the Commission from initiating appropriate
enforcement actions in the event of Respondent's failure to
comply with this agreement or the Commission's order or
cooperating with any other authority who may so choose to
review this matter further.
Consent Agreement, at 1-2.
In considering the Consent Agreement, we accept the recommendation of the
parties for a finding that no violation of Section 1103(f) of the Ethics Act occurred when the
Township awarded contracts in excess of $500.00 to OAC as the initial work was
completed through a state contract and in that the Township issued RFPs for the additional
work.
Accordingly, we hold that no violation of Section 1103(f) of the Ethics Act, 65
Pa.C.S. § 1103(f), occurred when the Township awarded contracts in excess of $500.00 to
a business with which Obernier is associated, OAC, as the initial work was completed
through a state contract and in that the Township issued RFPs for the additional work.
We accept the recommendation of the parties for a finding that an unintentional
violation of Section 1103(a) of the Ethics Act occurred in relation to Obernier’s approval of
payments to OAC.
Factually, between September 2004 and September 2009, Obernier participated in
actions as a Township Supervisor to approve the payment of bill lists that included
payments made to OAC and signed as an authorized Township signatory Township
checks issued to OAC. The parties have stipulated that Obernier realized a private
pecuniary gain of $1,676.71 as a result of approving payments to OAC for performing
computer consulting work for the Township. Fact Finding 44.
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). However, 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.
Obernier, 09-040
Page 19
We hold that an unintentional violation of Section 1103(a) of the Ethics Act occurred
in relation to Obernier’s approval of payments to OAC, a business with which he is
associated. Cf., Elliott, Order 1521.
We further hold that a violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. §
1105(b), occurred when Obernier failed to disclose all sources of income on his SFIs filed
for the 2006, 2007 and 2008 calendar years.
As part of the Consent Agreement, Respondent has agreed to make payment in the
amount of $1,275.20 payable to West Brandywine Township and forwarded to this
Commission within thirty (30) days of the issuance of the final adjudication in this matter.
To the extent he has not already done so, Respondent has further agreed to file
with the Township amended SFIs for calendar years 2006, 2007 and 2008 disclosing all
sources of income and to forward copies of such filings to this Commission.
We determine that the Consent Agreement submitted by the parties sets forth a
proper disposition for this case, based upon our review as reflected in the above analysis
and the totality of the facts and circumstances.
Accordingly, per the Consent Agreement of the parties, Obernier is directed to make
payment in the amount of $1,275.20 payable to West Brandywine Township and forwarded
th
to this Commission by no later than the thirtieth (30) day after the mailing date of this
adjudication and Order.
To the extent he has not already done so, Obernier is directed to file with the
Township amended SFIs for calendar years 2006, 2007 and 2008, disclosing all
direct/indirect sources of income, and to forward copies of all such filings to this
th
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 for West Brandywine Township (“Township”), Chester County,
since January 6, 1992, Respondent Josef G. Obernier (“Obernier”) 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. Obernier did not violate Section 1103(f) of the Ethics Act, 65 Pa.C.S. § 1103(f),
when the Township awarded contracts in excess of $500.00 to a business with
which Obernier is associated, OAC Network Solutions (“OAC”), as the initial work
was completed through a state contract and in that the Township issued RFPs for
the additional work.
3. An unintentional violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. §
1103(a), occurred in relation to Obernier’s approval of payments to OAC, a
business with which he is associated.
4. A violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred
when Obernier failed to disclose all sources of income on his Statements of
Financial Interests filed for the 2006, 2007 and 2008 calendar years.
In Re: Josef G. Obernier, : File Docket: 09-040
Respondent : Date Decided: 12/15/10
: Date Mailed: 12/20/10
ORDER NO. 1576
1. As a Supervisor for West Brandywine Township (“Township”), Chester County,
Josef G. Obernier (“Obernier”) did not violate Section 1103(f) of the Public Official
and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(f), when the Township
awarded contracts in excess of $500.00 to a business with which Obernier is
associated, OAC Network Solutions (“OAC”), as the initial work was completed
through a state contract and in that the Township issued RFPs for the additional
work.
2. An unintentional violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. §
1103(a), occurred in relation to Obernier’s approval of payments to OAC, a
business with which he is associated.
3. A violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred
when Obernier failed to disclose all sources of income on his Statements of
Financial Interests (“SFIs”) filed for the 2006, 2007 and 2008 calendar years.
4. Obernier is directed to make payment in the amount of $1,275.20 payable to West
Brandywine Township and forwarded to the Pennsylvania State Ethics Commission
th
by no later than the thirtieth (30) day after the mailing date of this Order.
5. To the extent he has not already done so, Obernier is directed to file with the
Township amended SFIs for calendar years 2006, 2007 and 2008, disclosing all
direct/indirect sources of income, and to forward copies of all such filings to the
th
Pennsylvania State Ethics Commission by no later than the thirtieth (30) day after
the mailing date of this Order.
6. Compliance with Paragraphs 4 and 5 of this Order will result in the closing of this
case with no further action by this Commission.
a. Non-compliance will result in the institution of an order enforcement action.
BY THE COMMISSION,
___________________________
Louis W. Fryman, Chair