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HomeMy WebLinkAbout1581 Brink In Re: Leroy Brink, : File Docket: 09-043 Respondent : X-ref: Order No. 1581 : Date Decided: 3/3/11 : Date Mailed: 3/10/11 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. Brink, 09-043 Page 2 I. ALLEGATIONS: That Leroy Brink, a public official/public employee in his capacity as a Supervisor for Chest Township, Clearfield County, violated Sections 1103(a), 1103(f), 1104(a) and 1105(b) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §§ 1103(a), 1103(f), 1104(a) and 1105(b), when he used the authority of his public position for the private pecuniary benefit of a member of his immediate family and/or a business with which a member of his immediate family is associated by authorizing contracts with his son’s trucking company without a vote of the Board of Supervisors; when he participated in approving payments to his son’s company; when contracts were entered into with his son’s company in excess of $500.00 without an open and public process; when he failed to file Statements of Financial Interests for the 2003 and 2004 calendar years; and when he failed to disclose all direct/indirect sources of income on the Statement of Financial Interests filed for the 2005 calendar year. II.FINDINGS: 1. Leroy Brink has served as a Supervisor for Chest Township (hereafter Township), Clearfield County, from January 5, 2004, through December 31, 2009. a. Brink served as Vice-Chairman in 2004, 2005, 2008, and 2009. b. Brink previously served as a Supervisor between 1984 and 1995. 2. Chest Township is a Second Class Township governed by a three-Member Board of Supervisors. a. Chest Township Supervisors are compensated approximately $35.00 gross per meeting paid quarterly as compensation for services rendered as Supervisors. 1. The Supervisors hold one regularly monthly meeting on the second Thursday of each month. 2. Special meetings are held as necessary. b. The Supervisors are required to attend the monthly meetings in order to receive the compensation. 3. Voting at Chest Township meetings occurs in an aye/nay group vote after a motion is made and seconded. a. All objections and abstentions cast are noted in the minutes. 1. The minutes of each meeting are approved for accuracy at each subsequent meeting. 4. Meeting packets are issued to the Supervisors approximately two days prior to Township meetings. a. Meeting packets include an agenda, draft minutes, bill list, etc. 5. Bill lists are provided to the Supervisors at the regular monthly meetings for a vote of approval. a. Bill lists approved for payment represent all bills received by the Township since the previous monthly meeting. Brink, 09-043 Page 3 6. All three Supervisors maintain signature authority over the financial accounts associated with the Township. a. Two signatures are required on all checks issued by the Township. 1. Checks can be signed by any combination of the Supervisors. 2. Brink utilized a signature stamp in late 2009. 7. Larry Brink is the sole owner/operator of Larry Brink Trucking (hereafter LBT). a. Larry Brink is Brink's son. 8. LBT is located at [residence address redacted]. a. LBT was established approximately twenty years ago. 1. Larry Brink operates his business from his residence. 2. LBT is not incorporated in the Commonwealth of Pennsylvania. b. LBT is located within the geographical boundaries of Chest Township. 9. LBT specializes in transporting/hauling large amounts of materials such as stone, shale, anti-skid, etc. a. Larry Brink utilizes a thirteen-ton tri-axle truck with a maximum vehicle weight of 73,280 lbs. to transport materials. 10. Larry Brink does not advertise the services of LBT. a. Larry Brink obtains the majority of his business via word-of-mouth and by sub-contracting with Samuel D. Brink Trucking, Inc. 1. Samuel D. Brink is Larry Brink's brother. 11. Samuel D. Brink is the owner/operator of Samuel D. Brink Trucking, Inc. a. Samuel D. Brink is Brink's son. 12. Samuel D. Brink Trucking, Inc. is located in Ebensburg, PA. a. Ebensburg, PA is outside the geographical boundaries of Chest Township. b. Samuel D. Brink Trucking, Inc. provides the same services as LBT. 13. Brink’s sons, Larry Brink and Samuel Brink, became familiar with the transportation business due to Brink’s former ownership of Leroy Brink Trucking. a. Brink owned and operated Leroy Brink Trucking from approximately 1975 through approximately 1990. b. In or about 1990 Brink transferred ownership of Leroy Brink Trucking to his wife, Ethel Brink. c. Ethel Brink re-named her husband’s company “Ethel Brink Trucking.” Brink, 09-043 Page 4 14. Brink and his son-in-law, Doug Eckleberry, are the only two employees of Ethel Brink Trucking. a. Brink performs mechanic type services for the company. b. Eckleberry acts as a driver for the company. 15. Ethel Brink Trucking equipment includes a 1988 Freightliner tri-axel truck with a maximum vehicle weight of 54,000 lbs. a. Brink and his wife jointly own the 1988 Freightliner. 16. Eckleberry utilizes the vehicle owned by Ethel Brink Trucking to provide material hauling services. a. Ethel Brink Trucking leases the Freightliner to Eckleberry for 72% of the cost Eckleberry charges most customers. b. Eckleberry is occasionally not charged the 72% fee depending on the nature of the haul. c. Eckleberry occasionally hauls materials under his own name rather than under the name of Ethel Brink Trucking. d. Eckleberry does not advertise the services performed under his own name. 17. Brink was the subject of a State Ethics Commission (SEC) investigation in 1994 which, in part, included allegations that he participated in decisions of the Board of Supervisors to award contract(s) to Brink Trucking and Brink Trucking Company, companies with which he and/or members of his immediate family are associated, and when he approved payments issued to Brink Trucking and Brink Trucking Company. a. The SEC issued Order No. 953 on December 27, 1994, which concluded as follows: Eight technical violations of Section 3(a) of Act 9 of 1989 occurred when Leroy Brink as a Chest Township Supervisor used the authority of office as to payments to Brink Trucking Company, a business with which a member of Brink’s immediate family is associated. . . . Nine technical violations of Section 3(a) of Act 9 of 1989 occurred when Brink signed checks payable to Brink Trucking Company, a business with which a member of Brink’s immediate family was associated. . . . Brink is ordered to make restitution of $1,380.00 in a timely manner through this Commission to Chest Township. Brink, Order No. 953 at paragraphs 1, 3, 7. Brink, 09-043 Page 5 18. Township Roadmaster Kevin Hutton is currently responsible for identifying the need for materials for road related projects. a. Materials normally needed include stone, shale, and anti-skid. b. Prior to 2008, Hutton was also responsible for ordering road related materials, and arranging for them to be transported to the Township salt shed. 1. Hutton ordered materials on an as-needed basis. 19. From 1997 through 2007, Hutton routinely ordered road related materials from New Enterprise Stone & Lime Co. Inc. (hereafter NE). a. NE is a major provider of stone, shale, and anti-skid in the Chest Township area. b. NE owns two quarries near Chest Township located in Roaring Springs, Pennsylvania, and Tyrone, Pennsylvania. 20. NE would dispatch NE hauler Tim Whetstone to deliver materials to the Township building. a. NE charged the Township a fee for the materials and a fee for delivery by an NE hauler (Whetstone). 1. Whetstone resided near Chest Township from1997 through 2007. 21. From 1997 through 2007, trucking companies affiliated with NE performed the majority of all transportation of material to the Township. a. In 2004, LBT was utilized by the Township on at least three separate occasions for a total of seven loads hauled. b. Remaining deliveries from 1997 through 2007 were completed by individuals associated with NE. c. Brink was not a Township Supervisor from January 1996 to January 2004. 22. Chest Township began utilizing LBT for hauling services approximately seven months after Brink was re-elected Supervisor and took office in January 2004. a. The first LBT invoice submitted to the Township was for work completed on or about July 13, 2004. 1. After 2004 LBT was not utilized again until February 2008. 2. Between 2004 and 2008 Brink was the Minority Supervisor, and the Majority Supervisors were not in favor of using Brink’s son’s trucking company. 23. Kenneth Rowles took office as a Supervisor for Chest Township in January 2008. a. Brink and Rowles have maintained a long-time friendship/social relationship. b. Brink and Rowles formed a majority on the Board. Brink, 09-043 Page 6 c. Brink and Rowles believed that the Township should utilize local businesses for services related to the municipality. 1. Supervisor Carl Michael did not share in this belief even though he owned a business (Michael Auto Body) within the Township. 24. Sometime in 2008 Brink and Rowles verbally agreed to utilize local businesses to provide services when possible. a. Brink and Rowles implemented this agreement shortly after Rowles became ` Supervisor in January 2008. 1. Supervisor Michael disagreed and did not want to limit vendors to Township residents. b. The Supervisors did not formally vote on the issue of using local businesses when possible. 25. Brink and Rowles also decided to change the process regarding how road related materials were to be ordered and delivered to the Township. a. Brink and Rowles directed Roadmaster Hutton to contact one of them when materials were needed rather than allowing Hutton to order materials and arrange for the delivery. b. The Supervisors did not formally vote to change the procedure regarding how materials were to be ordered. 26. From 2008 through 2009, it was the responsibility of the Supervisor contacted by Hutton to order the materials needed and to arrange for the transportation of the materials. a. Brink and Rowles were the only two Supervisors contacted by Hutton regarding the acquisition of road related materials during the aforementioned time period. 27. From 2008 through 2009, haulers located within the Township included the following: Larry Brink Trucking; Ethel Brink Trucking; Doug Eckleberry; and Nick Ninosky. a. Three of the four haulers are members of Brink’s immediate family or involved in businesses with which Brink or a member of his immediate family is associated. 28. Brink's and Rowles' utilization of local haulers by the Township limited the pool of haulers from which to choose. a. Of the four haulers located within the Township, Nick Ninosky was the only hauler not related to Brink. Brink, 09-043 Page 7 1. LBT and EBT are businesses owned and operated by members of Brink’s immediate family. 29. As a result of the agreement between Brink and Rowles to utilize local vendors, family members of Rowles and Brink began providing services to the Township. a. Both of Rowles’ son’s businesses were awarded contracts for less than $500.00 in 2008. b. Brink’s son’s business, LBT, was used extensively for hauling services. 30. Brink’s participation in decisions to utilize local haulers resulted in his son’s company being utilized by the Township. a. Brink participated in this action even though he was previously found in violation of the Ethics Act for participating in decisions resulting in his Company being selected for hauling services. 31. When deciding to utilize LBT for hauling services, no other vendors were contacted to provide quotes. a. Brink and Rowles made the determination not to solicit quotes or publicly advertise for bids. 32. LBT was utilized for hauling services by the Township on thirty-three occasions covering the time period of July 2004 through October 2009. a. LBT invoiced the Township $5,683.79 over a five year period in relation to hauling services performed. 33. The Township did not utilize the services of LBT during the time period of 1997 through 2003. a. Brink did not serve as a Supervisor during the aforementioned time period. b. LBT was in operation during the aforementioned time period. 34. The Township utilized LBT only during Brink’s tenure as Supervisor. a. The Township utilized LBT significantly more after Brink and Rowles became responsible for ordering materials/arranging for the transportation of them. b. LBT was not utilized in 2005, 2006 and 2007 when the roadmaster (Hutton) was responsible for the ordering and delivery of materials. 1. LBT was used on four (4) occasions in 2004 and eight (8) occasions in both 2008 and 2009. 35. Brink, in his capacity as a Chest Township Supervisor, voted to approve fifteen of fifteen Township bill lists that documented payment to LBT. a. Eighteen separate checks were documented on fifteen separate bill lists. b. One check - Check #3176 - was not documented on any Township bill lists. c. Brink did not abstain from the votes to approve any of the bill lists that documented payment to LBT. Brink, 09-043 Page 8 36. Brink signed as an authorized Township signatory six of nineteen Township checks which were issued to LBT during the time period of 2004 through 2009. a. Checks signed by Brink total $1,356.88 in payment to LBT. 1. Brink did not utilize a signature stamp until 2009. 37. LBT was paid $5,591.79 by the Township from 2004 through 2009 in relation to hauling though the Township was invoiced $5,683.79 in relation to hauling. a. The Township did not pay the $92.00 hauling charge associated with an LBT invoice dated October 2009. b. Township checks issued to LBT were cashed by Larry Brink. 38. LBT was utilized by the Township for hauling services on all but two instances from 2008 through 2009, as shown below: Company Number of Hauls in Percent of Hauls 2008 - 2009 LBT 27 93.10 Ethel Brink Trucking 0 0 Doug Eckleberry 1 3.45 Nick Ninosky 1 3.45 39. In 2008 the Township hired Douglas Eckleberry on one occasion to provide trucking services. a. On or about February 13, 2008, Eckleberry delivered materials to the Township from NE. 1. Eckleberry utilized a truck owned by Brink’s wife, Ethel Brink. b. Eckleberry invoiced the Township $358.87 for the delivery. c. Eckleberry was paid via Township check #3166 dated February 14, 2008. 1. Brink approved the payment to his son-in-law by voting to approve the February 2008 bill list that detailed the $358.87 payment. 2. The bill list was approved via a 3-0 vote. d. Brink immediately contacted Rowles after discovering that the Township utilized Eckleberry. 1. Brink directed Rowles not to utilize his son-in-law for future hauls. e. Doug Eckleberry did not pay Ethel Brink Trucking the 72% lease fee for utilizing the Freightliner to complete the aforementioned haul for the Township. 1. Eckleberry was waived the lease fee due to the nominal amount paid by the Township for the haul. 40. The Township utilized Nick Ninosky on one occasion in 2009 for trucking services. Brink, 09-043 Page 9 a. On October 12, 2009, Nick Ninosky hauled 21.91 tons of type 2 anti-skid from NE. 1. Ninosky was contacted by Rowles to deliver the anti-skid type 2 to the Township. b. Ninosky invoiced the Township $142.42 for the hauling of the material. c. Ninosky took the hauling job in hopes that he would receive additional hauling work from the Township. d. Ninosky was never again contacted to provide hauling services for the Township. 1. Ninosky was later informed by Rowles that the Township decided to utilize the services of Tim Whetstone. 41. In 2010, Supervisors Carl Michael and Dan Sunderland decided to again have Roadmaster Hutton order the materials needed and to arrange for the transportation of the materials, as well as to utilize haulers outside of the Township. a. Rowles did not agree with the decision. b. Rowles was in the minority at that time as a result of Sunderland replacing Brink on the Board of Supervisors beginning in January 2010. 42. Since Brink left office, the Township has not utilized the services of LBT, Eckleberry, and/or Ninosky. a. The Township currently utilizes Timothy Whetstone Trucking as its material supplier/hauler. 1. Whetstone established his own material/hauling business called Timothy Whetstone Trucking in approximately 2000. 2. Timothy Whetstone Trucking provides the services of supplying materials as well as transporting them. b. The Township utilizes Timothy Whetstone Trucking due to Whetstone being able to provide and haul materials more cheaply than NE and/or any other trucking companies. 1. Whetstone is able to purchase materials from NE at a cheaper rate than the Township and passes the material discount to the Township. 43. Between October 2004 and October 2009, the Township issued payments to LBT Trucking totaling $5,366.79. a. Brink participated in the decision to utilize local haulers knowing that members of his immediate family were among the haulers located in the Township. b. Brink authorized the use of LBT, his son’s trucking company, on thirty-three (33) occasions between 2004 and 2009. 1. Brink authorized the use of LBT and approved payments to LBT. Brink, 09-043 Page 10 c. Brink authorized the use of LBT and approved payments to LBT even though he had been found in violation of the State Ethics Act in the past for authorizing the use of his company by the Township. 44. LBT’s expenses related to hauling for the Township include vehicle maintenance and the purchase of diesel fuel. a. Profit realized by LBT is determined by the difference of the aforementioned costs and payments received from the Township. 45. Locations to which LBT traveled in relation to hauling materials for the Township included the Township Building (9 miles roundtrip), New Enterprise, Roaring Spring (102 miles roundtrip), Tyrone (71 miles roundtrip), Woodland Equipment & Supply Co. (76 miles roundtrip), and Westover, PA (19 miles roundtrip). 46. LBT invoices documented the locations traveled to by LBT for the Township, which reflect the total IRS Mileage Reimbursement of $1,144.41. 47. LBT realized a private pecuniary gain of $4,447.38 ($5,591.79 - $1,144.41) when Brink used the authority of his office as a Township Supervisor to approve contracts with LBT without a vote of the Board of Supervisors, when he voted to approve payments to LBT and when he signed checks issued to LBT as an authorized Township signatory. a. The private pecuniary gain for LBT was determined by giving credit to LBT at the IRS mileage allowances in effect for 2004, 2008 and 2009. 1. The IRS mileage reimbursements in effect for 2004, 2008 and 2009 were: 2004: 37.5 cents per mile 2008: Jan./June 56.5 cents per mile July/Dec. 58.5 cents per mile 2009: 55 cents per mile 2. The IRS standard mileage rates include costs associated with vehicle insurance and fuel. 48. In an interview setting with Commission Investigators on September 9, 2010, Brink stated the following: a. Brink was aware that “it was against the law” to participate in official actions that approved the utilization of businesses that might provide him and/or an immediate family member a pecuniary benefit. b. Brink was of the opinion that the municipality should utilize local businesses in order to benefit the local taxpayers who own businesses. c. Brink was aware that the Township was utilizing his son’s business, LBT, for hauling purposes. d. Brink was not in favor of the Township utilizing Michael Auto Body, a local business, owned by Supervisor Carl Michael because he did not like Michael. e. Brink informed Rowles to no longer utilize Doug Eckleberry for hauling Brink, 09-043 Page 11 purposes after discovering that Eckleberry, his son-in-law, hauled for the Township. f. Brink never discouraged the Township from utilizing his son's business, LBT. THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS ASSOCIATED WITH BRINK'S FAILURE TO FILE STATEMENTS OF FINANCIAL INTERESTS FOR THE 2003 AND 2004 CALENDAR YEARS. 49. Statement of Financial Interests filing requirements for public officials and public employees are mandated by Section 1104 of the State Ethics Act. a. Brink was required to file Statements of Financial Interests by May 1st annually in his position as Supervisor of Chest Township. 50. On October 2, 2009, a Statement of Financial Interests Compliance Review was conducted at the Township building for Chest Township. a. No Statements of Financial Interests were located at the Township building for Brink regarding calendar years 2003 and 2004. b. Brink served as Supervisor for Chest Township from 2004 through 2009. III.DISCUSSION: As a Supervisor for Chest Township (“Township”) from January 5, 2004, through December 31, 2009, Respondent Leroy Brink, hereinafter also referred to as “Respondent,” “Respondent Brink,” and “Brink,” 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 Brink violated Sections 1103(a), 1103(f), 1104(a) and 1105(b) of the Ethics Act: (1) when he used the authority of his public position for the private pecuniary benefit of a member of his immediate family and/or a business with which a member of his immediate family is associated by authorizing contracts with his son’s trucking company without a vote of the Board of Supervisors; (2) when he participated in approving payments to his son’s company; (3) when contracts were entered into with his son’s company in excess of $500.00 without an open and public process; (4) when he failed to file Statements of Financial Interests (“SFIs”) for the 2003 and 2004 calendar years; and (5) when he failed to disclose all direct/indirect sources of income on the SFI filed for the 2005 calendar year. Per the Consent Agreement, the Investigative Division has exercised its prosecutorial discretion to nol pros the alleged violation(s) of Section 1105(b)(5) of the Ethics Act. Based upon the nol pros, we need not address the Section 1105(b) allegation, which is no longer before us. 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). Brink, 09-043 Page 12 The term "conflict of interest" is defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act prohibits a public official/public employee from using the authority of public office/employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Section 1103(f) of the Ethics Act imposes certain restrictions as to contracting: § 1103. Restricted activities (f)Contract.— No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. § 1103(f). 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 Brink, 09-043 Page 13 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 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 Brink served as a Township Supervisor from January 5, 2004, through December 31, 2009. Respondent previously served as a Township Supervisor between 1984 and 1995. The Township is a Second Class Township governed by a three-Member Board of Supervisors (“Board”). Respondent served as Vice-Chairman of the Board in 2004, 2005, 2008, and 2009. All three Township Supervisors maintain signature authority over the Township’s financial accounts. Township checks require two signatures. Checks can be signed by any combination of the Township Supervisors. Bill lists are provided to the Supervisors at the Board’s regular monthly meetings for a vote of approval. Bill lists approved for payment represent all bills received by the Township since the previous monthly meeting. Respondent’s son, Larry Brink, is the sole owner/operator of a trucking company named “Larry Brink Trucking,” which is also referred to herein as “LBT.” From 1997 through 2007, the Township roadmaster, Kevin Hutton (“Hutton”), routinely ordered road related materials for the Township from a supplier named “New Enterprise Stone & Lime Co., Inc.” From 1997 through 2007, trucking companies affiliated with that supplier performed the majority of all transportation of material to the Township. However, in 2004, after Respondent had been re-elected Supervisor and had taken office, LBT was utilized by the Township on at least three separate occasions to haul a total of seven loads for the Township. After 2004 LBT was not utilized again until February 2008. Between 2004 and 2008, Respondent was the Minority Supervisor, and the Majority Supervisors were not in favor of using Respondent’s son’s trucking company. In January 2008 Kenneth Rowles (“Rowles”), a long-time friend/social acquaintance of Respondent, took office as a Township Supervisor. Respondent and Rowles formed a majority on the Board. In 2008 Respondent and Rowles verbally agreed to utilize local businesses to provide services to the Township when possible. Respondent and Rowles also decided to change the process regarding how road related materials were to be ordered and delivered to the Township. Respondent and Rowles directed Hutton to contact one of them when materials were needed rather than allowing Hutton to order materials and arrange for the delivery. Neither of the aforesaid decisions made by Respondent and Rowles was formally voted on by the Township Supervisors. From 2008 through 2009, it was the responsibility of the Supervisor contacted by Hutton to order the materials needed and to arrange for the transportation of the materials. Respondent and Rowles were the only two Supervisors contacted by Hutton regarding the acquisition of road related materials during the aforementioned time period. Brink, 09-043 Page 14 Respondent’s participation in decisions to utilize local haulers resulted in his son’s company, LBT, being utilized by the Township. When deciding to utilize LBT for hauling services, no other vendors were contacted to provide quotes. Respondent and Rowles made the determination not to solicit quotes or publicly advertise for bids. Respondent authorized the use of LBT to provide hauling services to the Township on 33 occasions between 2004 and 2009. LBT invoiced the Township a total of $5,683.79 in relation to the hauling services performed. From 2004 through 2009, LBT was paid $5,591.79 by the Township in relation to the aforesaid hauling services. (The Township did not pay a $92.00 hauling charge associated with an LBT invoice dated October 2009.) In his capacity as a Township Supervisor, Respondent voted to approve fifteen of fifteen Township bill lists that documented payment to LBT. Eighteen separate checks were documented on fifteen separate bill lists. One check, Check Number 3176, was not documented on any Township bill lists. Respondent did not abstain from the votes to approve any of the bill lists that documented payment to LBT. Respondent signed as an authorized Township signatory six of nineteen Township checks that were issued to LBT during the time period of 2004 through 2009. Township checks signed by Respondent in payment to LBT totaled $1,356.88. Respondent engaged in the aforesaid conduct even though he previously had been found in violation of the Ethics Act for similar conduct. See, Brink, Order 953 issued December 27, 1994. Since Respondent left office, the Township has not utilized the services of LBT. Based upon LBT’s profit, the parties have stipulated that LBT realized a private pecuniary gain of $4,447.38 when Respondent used the authority of his office as a Township Supervisor to approve contracts with LBT without a vote of the Board, voted to approve payments to LBT, and signed checks issued to LBT as an authorized Township signatory. As for Respondent’s SFIs, on October 2, 2009, an SFI Compliance Review was conducted at the Township building. No SFIs were located at the Township building for Respondent regarding calendar years 2003 and 2004. 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.] A violation of Section 1103(a) of the Ethics Act occurred when Brink used the authority of his public position for the private pecuniary benefit of a member of his immediate family and/or a business with which a member of his immediate family is associated when he authorized contracts with his son’s trucking company without a vote of the Board of Supervisors and when he participated in approving payments to his son’s company. Brink, 09-043 Page 15 [b.] A violation of Section 1103(f) of the Ethics Act occurred when contracts were entered into with Brink’s son’s company in excess of $500.00 without an open and public process. [c.] A violation of Section 1104(a) occurred when Brink failed to file Statements of Financial Interests for the 2003 and 2004 calendar years. [d.] Allegations arising from Section 1105(b)(5) are hereby nol pros[sed] in that the Investigative Division is unable to meet its burden of proof. 4. Brink agrees to make payment in the amount of $4,000.00 in settlement of this matter payable to Chest Township and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. 5. Brink agrees to file Statements of Financial Interests for calendar years 2003 and 2004 with Chest Township within thirty (30) days of the issuance of the final adjudication in this matter. Copies of said forms shall be forwarded to the State Ethics Commission for compliance verification purposes. 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 agree with the parties that a violation of Section 1103(a) of the Ethics Act occurred when Respondent used the authority of his public position for the private pecuniary benefit of his son, Larry Brink, and/or a business with which Larry Brink is associated, LBT, when Respondent authorized Township contracts with LBT without a vote of the Board and when he participated in approving payments to LBT. Respondent used the authority of his public position when he authorized the use of LBT to provide hauling services to the Township on 33 occasions between 2004 and 2009. Respondent further used the authority of his public position when he voted to approve fifteen of fifteen Township bill lists that documented payment to LBT and when he signed, as an authorized Township signatory, six of nineteen Township checks that were issued to LBT during the time period of 2004 through 2009. The parties have stipulated that LBT realized a private pecuniary gain of $4,447.38 when Respondent used the authority of his office as a Township Supervisor to approve contracts with LBT without a vote of the Board, voted to approve payments to LBT, and signed checks issued to LBT as an authorized Township signatory. With each element of the recommended violation established, we hold that a Brink, 09-043 Page 16 violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Respondent used the authority of his public position for the private pecuniary benefit of his son, Larry Brink, and/or a business with which Larry Brink is associated, LBT, when Respondent authorized Township contracts with LBT without a vote of the Board and when he participated in approving payments to LBT. Cf., Wilson, Order 1575; Gold, Order 1461; Vaughn, Order 1450. We accept the recommendation of the parties for a finding that a violation of Section 1103(f) of the Ethics Act occurred when Township contracts in excess of $500.00 were entered into with LBT without an open and public process. In is clear that the Township contracts with LBT were entered into without an open and public process. Based upon the Stipulated Findings, there was no prior public notice of such contracting opportunities. When deciding to utilize LBT for hauling services, no other vendors were contacted to provide quotes. Respondent and Rowles made the determination not to solicit quotes or publicly advertise for bids. We are mindful of the ruling in Bixler v. State Ethics Commission, 847 A.2d 785 (Pa. Cmwlth. 2004). In Bixler, supra, the Commonwealth Court of Pennsylvania held that a township supervisor did not violate Section 1103(f) of the Ethics Act when a business that employed him entered into a contract in excess of $500 with his township without an open and public process, but the supervisor himself was neither a party to the contract nor a principal of the contracting business. Id. The Court determined that Section 1103(f) of the Ethics Act prohibited the conduct of entering into the contract under such circumstances. The Court concluded that although a violation of Section 1103(f) of the Ethics Act would be established under such circumstances, it would not be the public official who would be in violation of the law. Id. See also, Means, Opinion 04-007. In the instant matter, if the parties had not determined to enter into a Consent Agreement, we might have been presented with factual and legal issues as to whether, under the circumstances of this case, Bixler would apply. See, Hauser, Order 1518. However, given that: (1) the parties have entered into a comprehensive Consent Agreement; and (2) the parties are in agreement that the finding of a violation of Section 1103(f) would be appropriate as part of an overall settlement of this case, we shall accept the parties’ proposed disposition as to Section 1103(f). We hold that per the Consent Agreement of the parties, a violation of Section 1103(f) of the Ethics Act, 65 Pa.C.S. § 1103(f), occurred when Township contracts in excess of $500.00 were entered into with Respondent’s son’s company, LBT, without an open and public process. We note that the Section 1103(f) determination in this case based upon the agreement of the parties should not be considered as precedent for other cases, which would be determined based upon their facts and circumstances. We further hold that a violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Respondent failed to file SFIs for the 2003 and 2004 calendar years. As part of the Consent Agreement, Respondent has agreed to make payment in the amount of $4,000.00 payable to Chest Township and forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter. Respondent has further agreed to file with the Township SFIs for calendar years 2003 and 2004 within thirty (30) days of the issuance of the final adjudication in this matter and to forward copies of such filings to this Commission for compliance verification purposes. Brink, 09-043 Page 17 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, Respondent Brink is directed to make payment in the amount of $4,000.00 payable to Chest Township and th forwarded 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, Respondent Brink is directed to file with th the Township SFIs for calendar years 2003 and 2004 by no later than the thirtieth (30) day after the mailing date of this adjudication and Order and to forward copies of such filings to this Commission for compliance verification purposes. 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 Chest Township (“Township”) from January 5, 2004, through December 31, 2009, Respondent Leroy Brink (“Brink”) 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. Brink violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when he used the authority of his public position for the private pecuniary benefit of his son, Larry Brink, and/or a business with which Larry Brink is associated, “Larry Brink Trucking” (“LBT”), when Brink authorized Township contracts with LBT without a vote of the Township Board of Supervisors and when he participated in approving payments to LBT. 3. Per the Consent Agreement of the parties, a violation of Section 1103(f) of the Ethics Act, 65 Pa.C.S. § 1103(f), occurred when Township contracts in excess of $500.00 were entered into with Brink’s son’s company, LBT, without an open and public process. 4. A violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Brink failed to file Statements of Financial Interests for the 2003 and 2004 calendar years. In Re: Leroy Brink, : File Docket: 09-043 Respondent : Date Decided: 3/3/11 : Date Mailed: 3/10/11 ORDER NO. 1581 1. As a Supervisor for Chest Township (“Township”) from January 5, 2004, through December 31, 2009, Leroy Brink (“Brink”) violated Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), when he used the authority of his public position for the private pecuniary benefit of his son, Larry Brink, and/or a business with which Larry Brink is associated, “Larry Brink Trucking” (“LBT”), when Brink authorized Township contracts with LBT without a vote of the Township Board of Supervisors and when he participated in approving payments to LBT. 2. Per the Consent Agreement of the parties, a violation of Section 1103(f) of the Ethics Act, 65 Pa.C.S. § 1103(f), occurred when Township contracts in excess of $500.00 were entered into with Brink’s son’s company, LBT, without an open and public process. 3. A violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Brink failed to file Statements of Financial Interests (“SFIs”) for the 2003 and 2004 calendar years. 4. Per the Consent Agreement of the parties, Brink is directed to make payment in the amount of $4,000.00 payable to Chest Township and forwarded to the Pennsylvania th State Ethics Commission 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, Brink is directed to file with the Township th SFIs for calendar years 2003 and 2004 by no later than the thirtieth (30) day after the mailing date of this Order and to forward copies of such filings to the Pennsylvania State Ethics Commission for compliance verification purposes. 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