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HomeMy WebLinkAbout1578 Peck In Re: Dennis Peck, : File Docket: 09-019 Respondent : X-ref: Order No. 1578 : 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.” An Answer was filed and a hearing was requested. 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. Peck, 09-019 Page 2 I.ALLEGATIONS: That Dennis Peck, a public official/public employee in his capacity as a Member of Falls Creek Borough Council, Jefferson County, violated Sections 1103(a) and 1104(a) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §§ 1103(a) and 1104(a), when he used the authority of his public position for [the] private pecuniary benefit of himself and/or a business with which he is associated; when he participated in actions and decisions of Council to award business to DuBois Car Care, Inc. [sic], a business he owns; and when he participated in approving payments to his company; and when he failed to file Statements of Financial Interests for the 2003, 2005, 2006, and 2007 calendar years. II.FINDINGS: 1. Dennis Peck has served as a Council Member for Falls Creek Borough (hereafter Borough), Jefferson County since January 2002. a. Peck served as President of Council in 2004, 2005 (January 3 - 17), 2006, 2007, 2008, and 2009. b. Peck served as Chairman of the Equipment Committee in 2005. 2. Peck is the owner/operator of Dubois Car Care Center (hereafter DCCC) located at 3360 Smithtown Road, Falls Creek, Pennsylvania. a. DCCC has been operating within the geographical boundaries of the Borough since 2008. b. DCCC is an auto body shop/auto repair garage that specializes in vehicle repairs/maintenance. c. DCCC is not incorporated nor has it filed fictitious name registrations with the Commonwealth of Pennsylvania, Department of State, Corporation Bureau. 3. Falls Creek Borough is governed by a weak Mayor and a strong seven-Member Council form of government. a. During calendar year 2005, Council held two regular monthly meetings each month; at all other times Council held one monthly meeting. b. Special meetings are held as necessary. c. The Mayor votes only to break ties on Council. 4. Council Members are compensated $12.50 per month for their service. a. Council Members are provided the option to donate their compensation to an entity of their choice. b. Council Members who participate in the donation option do not receive their compensation directly. c. Peck has donated his compensation to an entity of his choice since January 2002. 5. In the majority of instances, Council voting procedures occur in an aye/nay group vote after a motion is made and seconded. Peck, 09-019 Page 3 a. On occasion votes are recorded via Roll Call. b. All objections and abstentions are noted in the minutes. 1. The minutes of each meeting are approved for accuracy at each subsequent meeting. 6. Council is provided a Treasurer’s Report to review and approve at the regular meetings. a. The Treasurer’s Report represents all payments issued by the Borough since the previous meeting. b. The itemized Treasurer Reports have varied over the years in regards to specific financial information identified. 1. Since at least 2004, the Treasurer Reports have always identified vendors utilized and the amounts paid to the vendors. 7. Council and the Borough Manager maintain signature authority over the financial accounts associated with the Borough. a. At least two signatures are required on all checks issued by the Borough. 1. Peck maintained signature authority during the years that he served as President. 2. On July 14, 2006, Peck authorized First Commonwealth Bank (the bank utilized by the Borough since at least 2004) to accept the utilization of a facsimile (electronic) signature. 8. Council is segregated into Committees on an annual basis to oversee specific aspects of the Borough. a. The Committees established by Council are as follows: 1. Street Committee; 2. Building Codes Committee; 3. Light and Legal Committee; 4. Equipment Committee; 5. Finance Committee; 6. Personnel Committee; and 7. Authority Committee. b. A Chairman oversees each Committee. 9. Each Committee is comprised of three Council Members. a. Committee Members are selected via the following ways: 1. At the recommendation/urging of Council President; and/or Peck, 09-019 Page 4 2. A Council Member will volunteer. 10. Committees occasionally hold meetings at the request of the Committee Chairman and/or the Borough Manager. a. Committee meetings are normally held to discuss issues that would have an impact on the Borough. b. Voting does not occur at Committee meetings. 1. Committee meetings are held to formulate recommendations to be presented at the following Council meeting. c. Minutes are not generated for Committee meetings. 11. The Committee Chairperson for each Committee is responsible for providing a report at each Council meeting. a. The reports provided by the Committee Chairmen address any Committee related actions occurring outside of a Council meeting. 1. The Chairperson is notified of Committee related decisions that were made by the Borough Manager prior to Council meetings. 2. Generally, the Borough Manager personally informs the Chairperson of the applicable Committee related decisions he/she made between meetings. b. The Chairman can express a recommendation to Council during his/her report. 1. Recommendations made by the Chairman represent the general consensus of the Committee. 12. The President of Council oversees all of the Committees formed by Council. a. The President of Council is not a Member of any one Committee; however, the President may choose to sit on any Committee. 13. The Equipment Committee oversees the maintenance of Borough owned vehicles, tools, equipment, etc. a. The Equipment Committee also assists with the maintenance of Falls Creek Authority owned vehicles. b. The Borough has paid for repairs to Authority vehicles utilized by the Borough due to the limited financial resources of the Authority. 14. Since 2004, the Borough has owned/utilized the following vehicles: a. GMC 1 ton Dump Truck; b. Dodge Pickup Truck; c. Ford F-450 Pickup Truck; and d. Ford Ranger Pickup Truck (Owned by Authority but utilized by Borough). Peck, 09-019 Page 5 15. Peck was Chairman of the Equipment Committee in 2005. a. Peck, as Chairman, was responsible for providing Equipment Committee reports at the Council meetings. b. Peck did not serve as Equipment Committee Chairman after 2005 as a result of his appointment as Council President. c. As a result of his Council Presidency, Peck had the ability to participate if he chose in the Equipment Committee Meetings from 2006 to present. 16. During 2005, when he served as Equipment Committee Chairman, Peck provided Equipment Committee reports that included his assessments of Borough/Authority owned vehicles, which are noted as follows: Meeting Date Peck’s Comments from Minutes 6-6-05 Reported, "the final repairs were made to the Ford Truck. The new stone shield was installed and painted. Dennis gave the truck a close inspection while it was at his shop and reported that the brakes would need to be replaced before winter and the interior of the bed is rusting from the salt & antiskid being hauled. He will get some prices on sandblasting the bed and spraying on some type of protective liner. If these steps are taken now it may add several years of service life to the bed." 7-5-05 Reported, "the Dodge truck needs four new tires and a front-end alignment. Council instructed Manager Smith to get three estimates and then go with the best price." 7-18-05 Reported, "Council approved the purchasing four tires and having a front-end alignment from Delta Tire for the 92 Dodge. Delta had the best overall price on tires & alignment from the three quotes.” 8-1-05 Reported, "Looking into getting the bed of the 2001 Ford sand blasted and then having rhino lining applied to protect it from salt in the winter. The sandblasting would cost $200.00 and he is waiting for an estimate on the rhino lining. Laird Snyder was concerned that the salt & antiskid mixture might not slide out of the bed with the new lining. He thought an epoxy paint followed by spraying it with oil might be a better solution. Dennis said we would check to see if other municipalities have used the lining on their trucks and see if they had any problems." 9-6-05 "Reported that he attended the last Authority meeting to discuss the repairs on the Ford Dump truck bed. He made a proposal that they share the cost of repairing the truck since it's titled in the Authority's name. He reported that the Borough has paid any repairs and fuel. Dennis came away from the meeting under the impression that there would be some cooperation from the Authority on the repairs, which are $1,400; the shared cost would be $700 each. (Council member) Laird (Snyder) questioned whether they actually said if they share the costs but Judy said she stayed until the end of the meeting and no action was taken on the repairs to the truck. Dennis reported that the GMC required very little for inspection, lights and some small items, emergency brake cable. There is a small hole that developed in a certain place in the truck, which also needs fixed. He would help the Peck, 09-019 Page 6 guys repair it so that it would be ready for winter. The Ford needed a few little things. The backhoe is ready for winter. Overall, all of the equipment is in decent shape. Dennis reported that we held our own this year." 10-3-05 Reported, "The Ford dump is scheduled to be sandblasted on October 17th, just the inside of the bed. This doesn't include the prep work on the outside of the truck. On October 20th, the truck is scheduled at St. Mary's Rhino Liner to have the liner installed on the inside and exterior of the bed, they'll have the truck Thursday and Friday and keep the truck over the weekend and it can be picked up on Monday, October 24th. He explained that we have to test out the welding on the GMC plow assembly and fix the floor of the GMC. The tires are questionable; if we have a mild winter we can make it through the winter. If we have a severe winter, we might have to buy tires.” 10-17-05 Reported, "As far as the dump truck is concerned, the sandblasting was completed today on the bed. It will be brought back tomorrow and it will be epoxy primered and it will be read [sic] to ship to St. Mary's Thursday for the Rhino Liner. He has already supplied the epoxy primer that was recommended by Rhino Liner to do this bed. He explained that they ran across one particular issue. The tailgate was taken off and we started to prep it. The inside of the tailgate was actually eaten away so we purchased a piece of steel and it was welded to the inside of the tailgate in section prior to the application. The rust was extensive; you couldn't just patch a particular area. We had to repair the whole inside of the tailgate. This is within a whole 4 1/2 year period. It tells you of the extent of the corrosion problem. Even after the Rhino Liner is done, it might be a possibility that the tailgate will need replaced." 17. As a result of his expertise as a mechanic, Peck has been requested by Council and Borough employees to provide assessments of repairs needed for Borough/Authority owned vehicles. a. Borough employees have routinely sought Peck’s opinions and assistance when encountering problems with Borough vehicles. b. Borough vehicle problem(s) are initially observed/identified by the Borough Road Crew. c. The Borough Road Crew is responsible for contacting the Borough Manager to report any vehicle problem(s) observed. 18. Prior to 2008, the Borough Road Crew did not have the knowledge and/or expertise required to repair vehicle problem(s) considered to be beyond “minor” in nature. a. Peck has assisted the Road Crew with minor repairs when possible. b. After 2008, it was the practice of the Borough to limit the amount of vehicle repairs outsourced to vendors in order to save money. 19. Peck has assisted the Borough Road Crew with vehicle repairs since at least 2004, as detailed below: Peck, 09-019 Page 7 a. Peck has responded to locations where a Borough vehicle had broken down and assisted the Road Crew with the repairs needed to make the vehicle operational. 1. Peck has been called out to locations by the Borough Manager after the Borough Manager was informed by the Road Crew that a Borough vehicle had broken down. b. Peck has been contacted directly via telephone by the Road Crew to provide over-the-phone assistance with vehicle repairs that the Road Crew was attempting to [perform]. c. Peck has loaned the Road Crew tools from Peck’s business in order to make repairs. 1. Permission to borrow tools from Peck’s business was provided by Peck directly or by the Borough Manager after consultation with Peck. d. Peck’s company, DCCC, has repaired Borough vehicles. 20. Prior to 2008, the Borough’s procedures to determine the cost of vehicle repairs if the Road Crew is unable to make the appropriate repairs [was] as indicated below: a. The Road Crew informs the Borough Manager that the appropriate repairs cannot be made. b. The Borough Manager contacts local vehicle repair vendors via telephone in order to obtain an estimate. 1. The Borough Manager occasionally requests that the Road Crew contact vehicle repair vendors via telephone and/or transport Borough vehicles to vendors in order to obtain an estimate. c. The Borough Manager/Road Crew attempts to obtain at least three estimates from responsible vendors. 1. Estimates have been solicited from DCCC. 21. The Borough Manager authorizes repairs to be done by a specific responsible vendor without prior Council approval if the vehicle repairs are estimated at less than $500.00. a. Council has authorized the Borough Manager to make purchases under $500.00 without prior Council approval. b. Council, as a whole, did not approve purchases under $500.00 via a vote until the repair was identified on Treasurer Reports. 22. From 2004 through 2009, the Borough Manager has relied on his/her experience, Council Members’ opinions (including Peck’s), and the opinions of the Road Crew prior to selecting a vehicle repair vendor. a. Peck has participated in general discussions at Council meetings regarding vehicle repairs. b. Peck has suggested the use of his business as well as other local businesses when asked to provide an opinion. Peck, 09-019 Page 8 1. Peck's suggestions are based, in part, on the availability of Peck's business to perform the repair and/or the nature of the service required. 2. Peck has suggested other businesses when his company was unable to complete certain types of vehicle repairs, or where other service providers could perform the service at a lesser cost. 23. Peck, doing business as DCCC, has provided vehicle repair services to the Borough since at least 2004. a. Peck began service as a Council Member in or about 2001. b. Individual services performed by DCCC have always totaled less than $500.00 although total charges to the Borough have exceeded $500.00 on an annual basis. 24. DCCC submitted a minimum of thirty-four invoices totaling $4,167.27 from June 2004 through July 2009 for services performed for the Borough and Authority vehicles. a. None of the individual invoices issued to the Borough by Peck were in excess of $500.00. b. Borough invoices totaled $3,949.27. c. Authority invoices totaled $218.00. 25. Of the $3,949.27 in charges to the Borough, $1,996.50 was for labor. a. The remaining balance of $1,952.77 was for actual costs of parts. 26. As a Borough Council Member, Peck participated in votes of Council to approve Treasurer Reports which included payments to DCCC. 27. Peck's signature (either live or facsimile/electronic) appears on 16 of the 28 Borough checks issued to DCCC representing payment for services rendered as invoiced by DCCC. a. Borough checks that bear Peck's signature total $1,954.89 in payment to DCCC. b. Peck signed First Commonwealth Bank documents authorizing his facsimile (electronic) signature to be utilized on Borough checks (see Finding no. 7 a 2). 28. On occasion, Peck has authorized the Road Crew to borrow tools from Peck’s business DCCC, in order to complete various repairs to Borough vehicles. a. Peck has not charged the Borough for the borrowing of equipment. 29. Peck has also purchased tools which were utilized to repair Borough vehicles. a. Peck has been reimbursed by the Borough for the tool costs. Peck, 09-019 Page 9 30. In 2004, Peck submitted two MAC Tools Distributor receipts to the Borough for reimbursement in regards to tools DCCC did not own but needed to purchase in order to complete repairs to Borough vehicles. a. MAC Tools Distributor receipts document the purchase of the following: Receipt Receipt Description Receipt Date Amount 8-9-2004 One AS15 High Speed Rotary Sander $121.25 Unknown One 1/2" Carbon Scraper/Comf Grip, One Lng Blade $63.57 Scraper/Comfort Grip, One Long Blade Scraper/Comf Grip Total: $184.82 b. The Borough at all times retained possession of the tools purchased by Peck. 31. The total expenses related to the purchase of MAC tools were reimbursed to DCCC via the Borough checks. a. Peck's signature appears on both of the Borough checks issued to DCCC as an authorized signatory. 32. Peck participated in votes of Council in approving Treasurer Reports for which payment to DCCC was documented for tools obtained by DCCC, but paid for by the Borough. a. Borough payment (check #5945) to DCCC for MAC receipt dated 8-9-2004 was not listed on a Treasurer’s Report for approval. 33. Peck received a private pecuniary gain when he participated in actions of Council to approve payments to his company, DCCC. THE FOLLOWING FINDINGS RELATE TO DENNIS PECK FAILING TO FILE STATEMENT OF FINANICAL INTERESTS (SFI) FORMS FOR CALENDAR YEARS 2005, 2006, and 2007. 34. Peck in his official capacity as Council Member of Falls Creek Borough has been required to file a Statement of Financial Interests form by May 1 annually containing information for the prior calendar year. a. Council Members are annually provided with blank Statement of Financial Interests forms for completion. 35. On June 9, 2009, a Statement of Financial Interests (SFI) Compliance Review was conducted for Falls Creek Borough. a. No Statement of Financial Interests forms for calendar years 2005, 2006, and 2007 for Peck were on file with the Borough. b. Peck maintains that he filed annual Statements of Financial Interests for calendar years 2005, 2006 and 2007, but they were lost or misplaced by Borough staff. 36. On or about June 18, 2009, Peck received a Notice of Investigation from the Investigative Division, which included information as to Statement of Financial Interests non-filings for calendar years 2005, 2006 and 2007. Peck, 09-019 Page 10 37. On November 16, 2009, SFIs on file at the Borough building were reviewed for a second time by an investigator for the State Ethics Commission. a. At that time SFIs for Peck for calendar years 2006, 2007, and 2008 were on file with the Borough. b. Copies of what appeared to be timely filed 2006 and 2007 calendar year SFIs were located within the Borough files. c. No calendar year 2005 SFIs were located within Borough files. III.DISCUSSION: As a Council Member for Falls Creek Borough (“Borough”) since January 2002, Respondent Dennis Peck, hereinafter also referred to as “Respondent,” “Respondent Peck,” and “Peck,” has been a public officialsubject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. The allegations are that Peck violated Sections 1103(a) and 1104(a) of the Ethics Act: (1) when he used the authority of his public position for the private pecuniary benefit of himself and/or a business with which he is associated; (2) when he participated in actions and decisions of Borough Council to award business to DuBois Car Care Center (“DCCC”), a business he owns; (3) when he participated in approving payments to his company; and (4) when he failed to file Statements of Financial Interests (“SFIs”) for the 2003, 2005, 2006, and 2007 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. Peck, 09-019 Page 11 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 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. 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 Peck has served as a Borough Council Member since January 2002. Peck served as President of Borough Council in 2004, a portion of 2005, 2006, 2007, 2008, and 2009. In 2005, Peck served as Chairman of Borough Council’s Equipment Committee, which oversees the maintenance of Borough owned vehicles, tools, and equipment and also assists with the maintenance of Falls Creek Authority (“Authority”) vehicles. Borough Council and the Borough Manager maintain signature authority over Borough financial accounts. At least two signatures are required on all checks issued by the Borough. The use of a facsimile (electronic) signature was authorized by Peck in 2006. Borough Council approves payments made by the Borough by approving a Treasurer’s Report listing such payments. Since at least 2004, the Treasurer’s Reports have always identified vendors utilized and the amounts paid to the vendors. In a private capacity, Peck is the owner/operator of DCCC, which is an auto body shop/auto repair garage. Peck/DCCC has provided vehicle repair services to the Borough since at least 2004. As a result of his expertise as a mechanic, Peck has been requested by Borough Council and Borough employees to provide assessments of repairs needed for Borough/Authority owned vehicles. Peck has participated in general discussions at Borough Council meetings regarding vehicle repairs. Peck has suggested the use of his business as well as other local businesses when asked to provide an opinion. Borough employees have routinely sought Peck’s opinions and assistance when encountering problems with Borough vehicles. Since at least 2004, Peck has assisted the Borough Road Crew with vehicle repairs by responding to locations where Borough vehicles have broken down and assisting the Road Crew with the repairs, or by providing over-the-phone assistance to the Road Crew. Peck has loaned the Road Crew tools from Peck’s business in order to make repairs. Peck has not charged the Borough for the borrowing of equipment. Prior to 2008, when the Road Crew was unable to make a vehicle repair, the Borough Manager or Road Crew attempted to obtain at least three estimates from responsible vehicle repair vendors. Estimates were solicited from DCCC. For vehicle repairs estimated at less than $500.00, the Borough Manager authorized repairs to be done by a specific responsible vendor without prior Council approval. From 2004 through 2009, the Borough Manager relied in part on Council Members’ opinions (including Peck’s) prior to selecting a vehicle repair vendor. Council, as a whole, did not approve vehicle Peck, 09-019 Page 12 repair purchases under $500.00 via a vote until such repairs were identified on Treasurer’s Reports. From June 2004 through July 2009, DCCC submitted a minimum of 34 invoices totaling $4,167.27 for services performed for the Borough and Authority vehicles. Borough invoices totaled $3,949.27. Authority invoices totaled $218.00. Of the $3,949.27 in charges to the Borough, $1,996.50 was for labor. The remaining balance of $1,952.77 was for actual costs of parts. None of the individual invoices issued to the Borough by Peck/DCCC were in excess of $500.00, but the total of such charges exceeded $500.00 each year. As a Borough Council Member, Peck participated in votes of Borough Council to approve Treasurer’s Reports that included payments to DCCC. Additionally, Peck's signature (either live or facsimile/electronic) appears on 16 of the 28 Borough checks issued to DCCC representing payment for services rendered as invoiced by DCCC. Borough checks to DCCC bearing Peck's signature total $1,954.89. The parties have stipulated that Peck received a private pecuniary gain when he participated in actions of Borough Council to approve payments to DCCC. As for the allegations involving Peck’s SFIs, on June 9, 2009, an SFI Compliance Review was conducted for the Borough. There were no SFIs on file with the Borough for Peck for calendar years 2005, 2006, and 2007. Peck maintains that he filed the forms and that they were lost or misplaced by Borough staff. On or about June 18, 2009, Peck received a Notice of Investigation from the Investigative Division of this Commission, which included information regarding SFI non- filings for calendar years 2005, 2006 and 2007. On November 16, 2009, a Commission investigator conducted another review of SFIs on file at the Borough building. At that time, SFIs for Peck were on file with the Borough for calendar years 2006, 2007, and 2008. Copies of what appeared to be timely filed 2006 and 2007 calendar year SFIs were located within the Borough files. There was no SFI for Peck for calendar year 2005 located within Borough files. 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 a technical violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1103(a) occurred when Peck awarded business to DuBois Car Care, Inc. [sic], a business owned by him; b. That a technical violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1103(a) occurred in relation to Peck’s approval of payments to his company; c. That a violation of Section 1104(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. Peck, 09-019 Page 13 §1104(a) occurred when Peck failed to file Statements of Financial Interests for calendar year 2005; d. That no violation of Section 1104(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1104(a) occurred in relation to Peck’s filing of calendar years 2006 and 2007 Statements of Financial Interests, as they appear to have been timely filed; and e. That no violation of Section 1104(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1104(a) occurred in relation to Peck’s failure to file calendar year 2003 Statements of Financial Interests, as the allegation appears to have occurred outside of the five year statute of limitation time period. 4. Peck agrees to make payment in the amount of $500.00 in settlement of this matter payable to Falls Creek Borough 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, Peck agrees to file Statements of Financial Interests with Falls Creek Borough, through the Pennsylvania State Ethics Commission, for calendar year 2005 within thirty (30) days of the issuance of the final adjudication in this matter. 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 a technical violation of Section 1103(a) of the Ethics Act occurred when Peck awarded Borough business to DCCC. Peck used the authority of his public office when he participated in discussions at Borough Council meetings regarding vehicle repairs. Peck suggested the use of his business as well as other local businesses when asked to provide an opinion. None of the individual DCCC invoices exceeded $500.00. Prior to 2008, for vehicle repairs estimated at less than $500.00, the Borough Manager selected the vendor relying in part on Council Members’ opinions including Peck’s. Council approved vehicle repair purchases under $500.00 via a vote when such repairs were identified on Treasurer’s Reports. Peck used the authority of his public office when he participated in votes of Borough Council to approve Treasurer’s Reports that included payments to DCCC. Peck, 09-019 Page 14 From June 2004 through July 2009, DCCC submitted a minimum of 34 invoices totaling $4,167.27 for services performed for the Borough and Authority vehicles. Borough invoices totaled $3,949.27, of which $1,996.50 was for labor and $1,952.77 was for actual costs of parts. We hold that a technical violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Peck awarded Borough business to DCCC, a business owned by him. Cf., Rowley, Order 1142. We further accept the recommendation of the parties for a finding that a technical violation of Section 1103(a) of the Ethics Act occurred in relation to Peck’s approval of payments to his company, DCCC. Peck used the authority of his public office when he participated in votes of Borough Council to approve Treasurer’s Reports that included payments to DCCC. Additionally, Peck was one of the authorized signatories for the Borough on 16 of the 28 Borough checks issued to DCCC for services rendered by DCCC. Borough checks to DCCC bearing Peck's signature total $1,954.89. The parties have stipulated that Peck received a private pecuniary gain when he participated in actions of Borough Council to approve payments to DCCC. With each element of the recommended technical violation established, we hold that a technical violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Peck’s approval of payments to his company, DCCC. As for the allegations involving Peck’s SFIs, we hold that a violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Peck failed to file an SFI for calendar year 2005. We hold that no violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred in relation to Peck’s filing of calendar years 2006 and 2007 SFIs, as they appear to have been timely filed. We hold that no violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred in relation to Peck’s failure to file a calendar year 2003 SFI, as the allegation appears to have occurred outside of the five year statute of limitation time period (65 Pa.C.S. § 1108(m)). As part of the Consent Agreement, Respondent has agreed to make payment in the amount of $500.00 payable to Falls Creek Borough 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 Borough, through this Commission, an SFI for calendar year 2005 within thirty (30) days of the issuance of the final adjudication in this matter. We determine that the Consent Agreement submitted by the parties sets forth 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, Peck is directed to make payment in the amount of $500.00 payable to Falls Creek Borough and forwarded to this th 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, Peck is directed to file with the Borough, th through this Commission, an SFI for calendar year 2005 by no later than the thirtieth (30) day after the mailing date of this adjudication and Order. Peck, 09-019 Page 15 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 Council Member for Falls Creek Borough (“Borough”) since January 2002, Respondent Dennis Peck (“Peck”) has been a public officialsubject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. 2. A technical violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Peck awarded Borough business to DuBois Car Care Center (“DCCC”), a business owned by him. 3. A technical violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Peck’s approval of payments to his company, DCCC. 4. A violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Peck failed to file a Statement of Financial Interests (“SFI”) for calendar year 2005. 5. No violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred in relation to Peck’s filing of calendar years 2006 and 2007 SFIs, as they appear to have been timely filed. 6. No violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred in relation to Peck’s failure to file a calendar year 2003 SFI, as the allegation appears to have occurred outside of the five year statute of limitation time period (65 Pa.C.S. § 1108(m)). In Re: Dennis Peck, : File Docket: 09-019 Respondent : Date Decided: 12/15/10 : Date Mailed: 12/20/10 ORDER NO. 1578 1. A technical violation of Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), occurred when Dennis Peck (“Peck”), as a Council Member for Falls Creek Borough (“Borough”), awarded Borough business to DuBois Car Care Center (“DCCC”), a business owned by him. 2. A technical violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Peck’s approval of payments to his company, DCCC. 3. A violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Peck failed to file a Statement of Financial Interests (“SFI”) for calendar year 2005. 4. No violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred in relation to Peck’s filing of calendar years 2006 and 2007 SFIs, as they appear to have been timely filed. 5. No violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred in relation to Peck’s failure to file a calendar year 2003 SFI, as the allegation appears to have occurred outside of the five year statute of limitation time period (65 Pa.C.S. § 1108(m)). 6. Per the Consent Agreement of the parties, Peck is directed to make payment in the amount of $500.00 payable to Falls Creek Borough and forwarded to the th Pennsylvania State Ethics Commission by no later than the thirtieth (30) day after the mailing date of this Order. 7. To the extent he has not already done so, Peck is directed to file with the Borough, through the Pennsylvania State Ethics Commission, an SFI for calendar year 2005 th by no later than the thirtieth (30) day after the mailing date of this Order. 8. Compliance with Paragraphs 6 and 7 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