HomeMy WebLinkAbout1597 Polites
In Re: Timothy J. Polites, : File Docket: 11-003
Respondent : X-ref: Order No. 1597
: Date Decided: 1/30/12
: Date Mailed: 2/14/12
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.
I.ALLEGATIONS:
That Timothy J. Polites, a public official/public employee in his capacity as a
Supervisor for West Carroll Township, Cambria 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 he used the authority of his public position for [the] private pecuniary
benefit of himself and/or businesses with which he is associated by participating in
discussions and actions of the Board [of Supervisors] including reviewing and preparing
bids and specifications resulting in the award of contracts to businesses with which he is
associated; when he subsequently participated in approval of payments to these
companies; when contracts were awarded to businesses with which he is associated
without an open and public process; when he failed to disclose on Statements of Financial
Interests filed for the 2006, 2007 and 2008 calendar years all direct and/or indirect sources
of income [and] office, directorship or employment in any business; and when he failed to
disclose on Statements of Financial Interests filed for the 2006, 2007 and 2009 calendar
years his financial interests in any legal entity in business for profit.
II.FINDINGS:
1. Timothy Polites has served as a West Carroll Township (hereafter “Township”)
Supervisor from August 19, 2005, to the present.
Polites, 11-003
Page 2
a. Polites was appointed to fill an unexpired term on the Board of Supervisors.
b. Polites served as the Chairman of the Board of Supervisors in 2010 and
2011.
c. Polites has been employed by the Township as an “as needed” working
Supervisor at various times throughout his tenure.
1. Polites receives compensation for working as a Township employee.
2. Polites submits timesheets to the Secretary for the hours worked at
the Township in an employee capacity.
3. The Supervisor employee wage is set annually by the Township
Auditors.
2. Professionally, Polites has been a building contractor since at least 1984.
a. Polites’ expertise is in the carpentry field.
3. Polites has had financial interests in the following general contracting businesses:
Northern Cambria Contractors, Inc.
Ace Excavating
LB/W Builders
4. Documents on file with the Pennsylvania Department of State, Corporations Bureau
confirm Polites as a partner with James George Shevock in Northern Cambria
Contractors, Inc. as of October 1984.
a. Northern Cambria Contractors dissolved in 1999.
5. Pennsylvania Department of State, Corporations Bureau [documents] list Polites
and Dave Contorchick (partner) [as] having business interests in Ace Excavating as
of March 1993.
a. Ace Excavating specializes in all types of commercial and residential
excavation.
b. Ace Excavating performs building contractor projects, including carpentry
specific work and residential renovations.
1. Ace Excavating projects requiring carpentry work are generally sub-
contracted to LB/W Builders.
c. Ace Excavating’s 2006 federal tax filings list Polites [as] having a 50%
(partner) share of the company’s profit, loss, and capital.
6. Ace Excavating has not conducted any business on behalf of Polites since mid-
2007.
a. Polites and Contorchick are currently litigating a dispute regarding the Ace
Excavating Partnership Agreement.
7. Polites’ primary responsibility as a partner in Ace Excavating was to maintain
financial records including applicable tax filings and the payroll account.
Polites, 11-003
Page 3
a. Polites performed carpentry jobs under the name of Ace Excavating
beginning in 2006 for Contorchick’s brother’s residence and the West Carroll
Township roof project, in order to have the required workers’ compensation
coverage.
b. Polites submits that he was also primarily responsible for soliciting jobs.
8. Pennsylvania Department of State, Corporations Bureau records document Polites
and Polites’ son, Wade Polites, as having business interests in LB/W Builders since
February 1998.
a. LB/W Builders is a building contracting company based out of Polites’
private residence.
b. LB/W Builders is a general contracting/new home construction business.
c. LB/Builders’ payroll was processed through ACE Excavating’s payroll
account until about 2007.
9. West Carroll Township is a Second Class Township governed by a three member
Board of Supervisors (hereafter “Board”).
a. The Board holds regular monthly meetings at the Township building on the
first Monday of each month.
b. Special meetings are held when necessary.
c. The Township Solicitor attends Township meetings upon request.
10. The Township circulars of record are The Star-Courier and The Tribune-Democrat.
a. Township advertisements are submitted by the Secretary/Treasurer for
circulation.
11. Supervisors are compensated $30.00 a month for their services in their Supervisor
capacity.
a. Supervisors are required to be present at monthly meetings in order to
receive the compensation.
12. Voting at Township meetings occurs in roll-call fashion after a motion is made and
seconded.
a. All objections and abstentions are noted within the minutes.
b. The minutes of each meeting are approved for accuracy at each subsequent
meeting.
c. The Secretary/Treasurer is ultimately responsible for generation of the
minutes.
1. Hand written notes and the meeting audio recording are utilized in
generating the minutes.
aa. Meeting audio recordings are subsequently recorded over at
the following month’s meeting.
Polites, 11-003
Page 4
13. Signature authority over Township accounts is maintained by the
Secretary/Treasurer and all three Supervisors.
a. Checks require live signatures by any combination of two authorized
signatories.
1. Authorized signatories from 2006 to 2010 were Supervisors Drew
Bassett and Tom Taylor and the Secretary/Treasurer--Mark
Semelsberger (2006 to 2009) and Jen Flora (2009 and 2010).
2. Polites has been an authorized signatory from 2010 to the present.
b. Checks are signed as needed.
c. Signature stamps are not utilized.
14. Township Supervisors review an expense report at each regular monthly meeting
that lists Township expenses from the prior month’s meeting to the current meeting.
a. The list of expenses includes the vendor, amount, check number and memo.
b. Invoices are provided to Supervisors for review by the Secretary upon
request.
15. The Board discussed a renovation project for the Township building roof as early as
February 2002 to address the roof’s deteriorating condition.
a. Polites was not serving as a Township Supervisor when the discussion
initially took place.
16. On or about October 31, 2002, Eric A. Casanave, of the Township’s Engineer
consulting firm Gwin, Dobson, and Foreman, Inc. (hereafter “GDF”), sent the
Township a brief narrative and specifications for the Township building roof
renovation project.
a. GDF recommended extending the block walls and constructing a new wood
truss, pitched roof above the existing deteriorating flat roof.
b. Included with Casanave’s presentation was a material cut sheet and a
sketch for the renovations detailing the appropriate connections between the
new roof and the proposed masonry top course.
17. In 2002, the Township applied for a State grant from the Department of Community
and Economic Development to supplement the costs for the roof project.
a. The Township was not awarded the grant.
b. The Board did not pursue roof renovations in 2002 due to financial restraints.
18. Periodic discussions about the roof project ensued between 2002 and 2006 with no
official action taken by the Board.
a. Discussions which occurred were informal in nature with no decisions made.
19. Discussions about how to pursue the roof project were held by the Supervisors at
regular monthly meetings and informally out of regular meeting settings.
Polites, 11-003
Page 5
20. At the Township’s September 12, 2005, regular meeting, the Board discussed the
need for repairs to the Township building roof.
a. The Board agreed to pursue the Township building roof renovation project.
b. The Board agreed to have Polites, as a Township Supervisor, develop the
project specifications before any further decision on the project was made.
c. The Board’s decision to have Polites develop the project specifications was
based on his experience as a building contractor.
1. Polites submits that the project specifications were developed in 2002
by the Township’s engineering firm and not by Polites.
21. At the Township’s February 7, 2006, regular meeting, Polites, in accordance with
his duties as a Supervisor, presented a list of repairs to the Township building
which needed to be completed as the funds became available.
a. The list included obtaining a plan for roof renovations to the Township
building.
b. The motion to approve Polites’ list for repairs/upgrades to the Township
building passed via 3-0 vote with Polites voting in favor of the motion.
c. At the time of this vote, Polites intended to bid on completion of the roof
project as a private contractor.
d. Polites never disclosed his intentions to the other Township Supervisors.
22. Polites, in his official position, prepared an estimated cost for repairing the roof for
the Board.
a. Polites informed the remaining Supervisors of the estimated cost of the
project both at regular monthly meetings and informally out of regular
meeting settings.
b. The Supervisors determined that the cost of the project required the
Township to pursue formal bids.
23. In or about March 2006, Polites, in his official position as a Township Supervisor,
contacted Mark Glenn of GDF for assistance in relation to the Township roof
renovation project.
a. Glenn informed another GDF engineer, Tim Boland, about the Township’s
intentions for the project.
b. Boland was the main point of contact from GDF for the project.
c. Polites, as a Township Supervisor, oversaw the administration and
completion of the roof project.
24. Correspondence to the Township from Boland, dated March 22, 2006, addressed
the Township’s interest in pursuing the roof renovation project and included GDF’s
October 2002 project narrative and specifications for the project.
a. Boland estimated the cost of the project to be between $90,000.00 and
$100,000.00.
Polites, 11-003
Page 6
b. Boland recommended that the Township discuss the legal aspects and
requirements with the Township Solicitor.
c. Boland’s correspondence was available for all members of the Board,
including Polites.
25. The roof renovation project involved constructing a block extension to the building
walls followed by the construction of a pitched roof over the existing flat roof.
a. The project followed GDF’s original project recommendations created in
2002.
26. Township bidding requirements and procedures for pursuing contracts are
governed by applicable sections of the Second Class Township Code:
a. Second Class Township Code, Article XXXI, Section 3101, states the
following:
“The board of supervisors may make contracts for purchases under this act
and the laws of this Commonwealth.”
b. Second Class Township Code, Article XXXI, Section 3102 (a), states in part
the following:
“All contracts or purchases in excess of the required advertising base
amount … shall not be made except with and from the lowest responsible
bidder after due notice in one newspaper of general circulation in the
township….”
c. Second Class Township Code, Article XXXI, Section 3102 (b), states in part
the following:
“Written or telephonic price quotations from at least three qualified and
responsible contractors shall be requested for all contracts in excess of the
base amount … but are less than the amount requiring advertisement and
competitive bidding.…”
27. At the Township’s April 3, 2006, meeting, the Board approved a motion to advertise
for bids to repair the Township garage roof.
a. The motion was approved via 3-0 vote with Polites voting in favor of the
motion.
28. On or about April 20, 2006, the Township advertised in The Star-Courier, a local
newspaper, for bids for additional block work as part of the roof project.
a. Bids were to be submitted to the Township on or before May 1, 2006.
29. Even though the Township advertised for bids, Polites individually solicited quotes
from Bassett Masonry and M&M Concrete for the block work extension.
a. Polites sought quotes from these companies because he had planned to
submit a bid on behalf of ACE Excavating and/or LB/W Builders to the
Township for the block work.
Polites, 11-003
Page 7
b. In order to ensure that his bid could be reviewed, Polites wanted more than
one quote for the Board to review.
30. M&M Concrete is a business based out of St. Benedict, Pennsylvania, which
specializes in all aspects of concrete construction.
a. M&M Concrete is owned by Mike Zeanchock.
1. Zeanchock has the authority to prepare bids for projects on behalf of
M&M Concrete.
2. Zeanchock has known Polites for over thirty years.
b. M&M Concrete did not submit a bid, even though requested to do so by
Polites.
31. Bassett Masonry is a business based out of Elmora, Pennsylvania, which
specializes in concrete masonry construction.
a. Bassett Masonry is owned by James Bassett.
b. Bassett Masonry has experience in performing excavation and carpentry
work.
1. Excavation and carpentry work is at times sub-contracted by Bassett
Masonry.
2. Bassett Masonry has contracted with Ace Excavating in the past.
c. Bassett has the authority to prepare bids for projects on behalf of Bassett
Masonry.
d. Bassett has known Polites for over twenty years.
32. Polites submitted proposals on behalf of both LB/W Builders and Ace Excavating to
the Township in relation to the block work extension.
a. LB/W Builders’ bid proposal was signed by Polites on April 21, 2006.
b. Ace Excavating’s bid proposal could not be located by the Township.
33. At the Township’s May 1, 2006, meeting, the Board reviewed three quotes received
for the block work extension on the Township building, as follows:
Date Company Quote
April 21, 2006 LB/W Builders $6,350.00
-unknown- Ace Excavating $6,275.00
April 28, 2006 Bassett Masonry $5,719.51
a. M&M Concrete did not submit a bid for the block work.
34. The Board awarded the contract to perform the block work on the Township building
to Bassett Masonry at the May 1, 2006, regular meeting via 3-0 vote.
a. Polites participated in the Board vote, even though both of his companies
were bidders.
Polites, 11-003
Page 8
th
35. Bassett Masonry completed the block work between the dates of May 17 and May
rd
23, 2006.
36. Bassett Masonry submitted invoice #7084, dated June 1, 2006, to the Township in
the amount of $4,859.51, for completion of the block work.
a. The invoice description is to the attention of “LB” (Polites).
b. The Township issued check #3135 to Bassett Masonry on June 10, 2006, in
the amount of $4,859.51.
37. In or about the summer of 2006, Polites, in his official position as a Township
Supervisor, recommended that the Board pursue separate quotes/bids for the
materials, trusses, and labor for the Township roof renovation project.
a. Polites believed that the Township would obtain a lower overall cost by
bidding each aspect separately.
38. Polites, in his official position, continued to advocate to the Board that obtaining
separate bids/quotes for the roof project was necessary to control costs.
a. Polites’ recommendation resulted in the Board pursing the project via
separate bids/quotes for materials and labor.
b. During this time, Polites intended to bid on the project.
39. Polites, while in his official capacity as a Township Supervisor, generated the
project’s materials listing and scope of work based on GDF’s project narrative and
designs.
a. On August 11, 2006, GDF’s Tim Boland forwarded drawings and
specifications for the project to Polites.
b. Boland advised Polites of the Pennsylvania Prevailing Wage if the project
was to exceed $25,000.
40. The Pennsylvania Prevailing Wage Act, 43 P.S. §§ 165-1 through 165-17, requires
that construction projects, including construction, reconstruction, demolition,
alteration and/or repair work other than maintenance work, financed by a public
body where the estimated cost is at least $25,000, [pay] prevailing wages under the
Pennsylvania Prevailing Wage Act.
a. The estimated cost for the roof renovation project exceeded the $25,000
benchmark which required prevailing wages to be [paid].
41. On or about April 10, 2006, Polites, as a Township Supervisor, submitted a request
for a Prevailing Wage Determination to the Pennsylvania Department of Labor and
Industry (“L&I”) regarding the Township Municipal Building project.
a. The purpose was to obtain the prevailing hourly rate for wages in the area.
b. The Prevailing Wage rates were requested by Polites for Centre County.
1. The Township is located in Cambria County.
c. The request included rates for laborers, brick layers, and stone masons.
Polites, 11-003
Page 9
d. Polites solicited this information to assist in his preparation to submit a bid
on the project.
e. Polites received an e-mail from L&I approving his request and directing him
to an L&I website.
1. Polites intended to bid on the project.
42. Polites obtained the Pennsylvania Prevailing Wage Rates for Cambria County in
May 2006.
a. The Prevailing Wage Rate for carpenters in Cambria County was $23.14 an
hour and $8.46 an hour for fringe benefits.
b. Polites utilized the prevailing wage information to determine the amount he
ultimately bid on the project.
43. In or about May 2006, Polites solicited quotes from suppliers for the materials and
trusses on behalf of the Township.
a. Polites provided suppliers with the materials listing sheet for the project.
b. Polites is documented as the Township contact on the materials listing sheet.
1. Polites provided LB/W Builders’ telephone number and fax number
along with the Township’s telephone number on the materials listing
sheet.
c. Polites was familiar with local suppliers as a result of his business as a
building contractor.
d. Polites continued to participate, in his official capacity, in the Township’s
administration of the project, even though he intended to submit a bid.
44. In or about May 2006, Polites received quotes for materials and roof trusses from
local vendors.
45. At the Township’s June 5, 2006, regular meeting, Polites presented separate
quotes for the material and trusses as listed below:
Material Long Barn 84 Lumber Lee Hardware
2’ O.C. Trusses $7,695.00 $8,018.00 $8,217.00
Shingle Roof Hat $8,694.95 $9,285.12 $9,255.00
Total $16,389.95 $17,303.12 $17,472.00
4’ O.C. Trusses $5,954.00 $6,110.00 $6,240.00
Metal Roof Hat $10,806.34 $10,475.92 $10,785.50
Total $16,760.34 $16,585.92 $17,025.50
a. The Board approved the quote from the Long Barn for the purchase of the
roof trusses at $7,695.00, via unanimous 3-0 vote.
b. The Board approved the quote from the Long Barn for the purchase of the
roof material at $8,694.95, via unanimous 3-0 vote.
Polites, 11-003
Page 10
c. Polites voted in favor of both motions at the June 5, 2006, meeting.
46. At the June 5, 2006, regular meeting, the Board motioned to advertise for bids
regarding labor for the roof project.
a. The motion passed via unanimous 3-0 vote with Polites voting in favor of the
motion.
b. Polites intended to submit a bid.
c. Polites did not publicly disclose this intent.
47. In July 2006, Boland met with Polites and Bassett at the Township building to
discuss the roof project.
a. Polites discussed with Boland how the Township could pursue the project
with an emphasis on keeping the costs low.
1. Polites discussed how the Prevailing Wage law would apply.
2. Polites inquired about having the Township perform the labor.
b. Boland performed measurements and took photos of the building for the
project.
c. Contractors for the project were not discussed or recommended at the
meeting.
48. The Township requires the completion of a Building Permit Application and the
issuance of a Building Work Permit before starting any construction, renovation,
alteration, demolition, or repair project on any commercial or residential building.
a. The Township utilizes the services of Cambria County Building Code
Enforcement Agency (hereafter “CCBCEA”) for building code enforcement.
49. Boland mailed a roof project packet, which included a Building Permit Application,
to the Township on August 11, 2006, to Barb Frantz, Chief Administrator of the
CCBCEA, and to the attention of Polites and Bassett.
50. The Building Permit Application was signed and affixed by Boland as the project
design professional as required by the CCBCEA.
a. Polites signed and dated the permit on August 8, 2006, as a Township
Supervisor.
b. The permit listed the estimated cost of the construction at $40,000.00.
c. The specifications and sketches were attached to the permit.
d. Photos of the existing building were attached to the permit.
51. The Township advertised [for] bids for the labor on the roof project in the Johnstown
Tribune-Democrat on August 23 and August 26, 2006, requiring that sealed bids be
submitted by September 5, 2006. The advertisement contained the following:
The West Carroll Township Supervisors are seeking sealed
bids for contract work to repair the township municipal garage
Polites, 11-003
Page 11
roof. The project is for labor ONLY and all materials will be
provided by the township. Please note that prevailing wage
laws should be considered when bidding this project. The
project specifications can be obtained by calling the township
office at 814-948-4052. All bids must be received by Tues.,
Sept. 5, 2006 at 6:00 pm. The bids will be opened at the next
regular township meeting on Tues., Sept. 5, 2006 at 7:00 pm
at the Bakerton Municipal Building located on 142 Township
Dr. in Bakerton, PA. Send all information to West Carroll
Township, P.O. Box 374, Elmora, PA 15737. Mark S.
Semelsberger Sec/Treasurer.
52. Polites, as a Township Supervisor, created the labor specifications for installation of
the roof trusses to the Township’s maintenance building which included the
following:
a. Scope of project:
1. To install a wood truss over maintenance building.
2. ALL materials to be supplied by West Carroll Township.
3. Price quotes on labor only.
4. Prevailing wage rates to apply for labor proposals over $7,000.00.
53. Polites had specific knowledge of the required labor and estimated cost of the
project as a result of his involvement in organizing the project.
a. Polites did not request GDF to generate a bid proposal package for the
project.
1. GDF generates bid proposal packages for clients as one of the
company’s services.
54. Polites utilized the scope of the project, prevailing wage forms, and GDF’s
engineers specifications/designs, to compile a bid proposal package.
55. Polites contacted both M&M Concrete and Bassett Masonry and solicited both to
submit bids for the labor portion of the roof project.
a. At the time of the solicitations, Polites knew he would be submitting a bid for
the labor.
56. On or about August 30, 2006, Polites approached M&M Concrete regarding
submission of a bid on the labor portion of the Township’s roof project.
a. Polites provided the labor specifications to an M&M Concrete clerk with the
intention of the specifications being forwarded to Zeanchock for review.
b. Zeanchock spoke with Polites about the project subsequent to receiving the
specifications.
c. Polites did not reveal his intentions to bid on the project to Zeanchock.
d. Zeanchock was aware that the Township was accepting bids for the project
prior to Polites approaching him.
Polites, 11-003
Page 12
1. Zeanchock had interest in bidding on the project prior to Polites
soliciting M&M Concrete for a bid.
57. On or about August 31, 2006, Polites approached Bassett at Bassett Masonry’s
office about bidding on the labor portion of the Township roof project.
a. Polites provided Bassett with the labor specifications.
b. Polites informed Bassett that three bids for the project were needed but did
not elaborate on the reasoning or requirement for three bids.
c. Polites did not advise Bassett that he intended to bid on the project.
58. Polites approached Bassett Masonry and M&M Concrete about bidding on the
project, as the companies were the two largest contractors that Polites knew of in
the area.
a. Polites knew M&M Concrete had roof repair experience.
b. Polites did not know if Bassett Masonry had roof repair experience.
59. Polites was involved with both the planning phase and construction phase of the
Township’s roofing project.
a. As a Township official, Polites was responsible for implementing the
planning and bidding aspects of the project.
1. Polites had personal and private contact with potential bidders and
provided them with information that he deemed appropriate.
b. Polities, as a contractor, sought the award of the Township construction
contract and submitted a bid to further his goal.
1. Polites never formally disclosed, to either the Township or the
contractors with whom he met, his plans to submit a bid.
60. Sealed bids for the labor were received at the Township from M&M Concrete,
Bassett Masonry, and Ace Excavating as listed below:
Dated Vendor Amount
8-30-06 M&M Concrete $38,000.00
8-31-06 Bassett Masonry $38,640.00
9-5-06 Ace Excavating $34,760.00
a. Polites hand delivered Ace Excavating’s bid to the Township at the
September 5, 2006, regular Board meeting.
61. Polites submitted a bid proposal on behalf of Ace Excavating to the Township,
dated September 5, 2006, in the amount of $34,760.00, in relation to the labor
portion of the roof project.
a. The proposal was signed by Polites as ‘Partner’ (Ace Excavating).
Polites, 11-003
Page 13
62. Polites submitted the bid proposal under Ace Excavating, instead of LB/W Builders,
in order to utilize Ace Excavating’s workers’ compensation insurance and general
liability insurance.
63. At the Township’s September 5, 2006, regular meeting, the Board opened/reviewed
the labor bids received and motioned to approve Ace Excavating’s bid for the
project.
a. The motion was approved via 2-0 vote with Polites abstaining.
b. The Township Solicitor advised Polites to abstain from voting as a result of
his association with Ace Excavating.
c. Polites did not submit a memorandum outlining the nature of his conflict of
interest.
64. At an impromptu meeting after the September 5, 2006, regular meeting, Supervisors
Bassett and Taylor discussed with Polites [having] Ace Excavating provide a
performance bond as required by the Second Class Township Code.
a. The Pennsylvania Second Class Township Code addresses performance
bond requirements for the protection of labor and material suppliers.
1. Second Class Township Code, Article XXXI, Section 3105, states in
part:
“Before any contract exceeding five thousand dollars
($5,000) is awarded to any prime contractor or construction
manager for the construction, reconstruction, alteration or
repair of any building or other public work or public
improvement of the township, the contractor shall furnish to
the township a payment bond for the protection of
claimants supplying labor or materials to the prime
contractor to whom the contract is awarded, at one
hundred percent of the contract amount....”
b. Polites did not discuss performance bond requirements prior to Ace
Excavating being awarded the contract at the September meeting.
c. Polites was not aware that a performance bond was required for the project
as per the Second Class Township Code.
65. Following the discussion among Bassett, Taylor and Polites, an agreement was
reached that Polites (ACE) would not have to supply a performance bond for the
labor to be provided by Ace Excavating.
a. Polites’ position as a Township Supervisor influenced the remaining
Supervisors’ decision in not requiring Polites to supply a performance bond.
b. Other contractors would not have been allowed to avoid the bond
requirement.
66. Ace Excavating’s general liability and workers’ compensation insurance provider,
Laurel Insurance Management, offers performance bonds that meet Pennsylvania
Second Class Township Code performance bond requirements.
Polites, 11-003
Page 14
a. Laurel Insurance Management charges $25.00 per each thousand dollars for
contracts under $100,000.00.
b. A performance bond from Laurel Insurance Management covering the labor
contract amount of $34,760.00 was valued at $869.00 at that time.
1. Polites avoided the performance bond cost of $869.00 as a result of
his assurance to the remaining Supervisors that he would repair any
damages of the project.
67. The CCBCEA issued Building Permit 65-06-15 to the Township, dated September
18, 2006, for the construction of the new roof.
a. Issuance of the building permit allowed the construction to begin.
68. Polites was Ace Excavating’s foreman for the project.
a. As the foreman, Polites was responsible for the hiring of sub-contractors,
invoicing the Township, completing timesheets, and processing payroll.
b. Polites utilized two Ace Excavating employees and sub-contracted two
additional laborers for the project.
1. Polites utilized Kenneth Polites and Dennis Fox from Ace Excavating.
2. Polites utilized James Babyak and Gary Mutchock as sub-contractors.
69. Weekly Payroll Certifications for Public Works Projects were completed by Polites
for the project as required by the Pennsylvania Department of Labor and Industry/
Prevailing Wage law.
a. The payroll certificates list the project as being completed between October
9, 2006, and October 27, 2006.
b. Polites paid the workers the Prevailing Wage rate for “Carpenters” in
Cambria County at the hourly rate of $23.14 and $8.46 fringe benefits hourly
rate for the total amount of $31.60 an hour.
c. Polites executed payroll checks from Ace Excavating’s First National Bank
primary account #XXX7910 to pay the individuals involved in the project.
1. Polites was an authorized signatory of account #XXX7910 at that time.
70. The gross wages paid by Polites (ACE) to the individuals utilized for labor purposes
associated with the Township roof project are listed below:
Name Total Hours Total Gross Wage
Kenneth M. Polites 113.5 $3,586.60
Dennis G. Fox 26 $821.60
James Babyak* 81 $2,559.60
Gary Mutchock* 91 $2,875.60
Total 311.5 $9,843.40
*-subcontracted by Polites
a. Polites was not listed on the payroll sheets even though he also performed
labor.
Polites, 11-003
Page 15
b. The total amount of hours worked on the project by Polites could not be
determined or accounted for.
71. Polites submitted four undated invoices to the Township on behalf of Ace
Excavating for labor performed on the roof project.
a. Payments were issued by the Township for these invoices as follows:
Check Date Check No. Amount
10-14-2006 3249 $10,000.00
10-26-2006 3257 $10,000.00
11-17-2006 3277 $7,380.00
12-14-2006 3306 $7,380.00
Total $34,760.00
72. Polites voted to approve all Township payments to Ace Excavating, listed on the
monthly expenditures, for the roof project as shown in the chart below:
Meeting Check No. Amount Vendor Description
11-6-2006 3249 $10,000.00 Ace Excavating Payment #1, garage roof
11-6-2006 3257 $10,000.00 Ace Excavating Payment #2, garage roof
12-4-2006 3277 $7,380.00 Ace Excavating Payment #3, garage roof
1-2-2007 3306 $7,380.00 Ace Excavating Roof Project, final payment
73. In a sworn statement taken on July 28, 2011, with Commission Investigators, Polites
claimed the following:
a. Polites had the intention to bid on the project “probably from the get-go.”
b. Polites bid on the labor portion of the project under Ace Excavating for the
use of its workers’ compensation insurance and general liability insurance.
c. Polites believed the telephone number used by Ace Excavating at the time
he submitted the bid for the labor was either 814-948-8205 or 814-948-8209.
74. Polites intended to receive compensation from the Township for any work done in
relation to the roof project.
THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS THAT POLITES
PARTICIPATED IN DISCUSSIONS AND ACTIONS OF THE BOARD WHEN
CONTRACTS WERE AWARDED TO BUSINESSES WITH WHICH HE IS ASSOCIATED
AND WHEN THE CONTRACT WAS AWARDED WITHOUT AN OPEN AND PUBLIC
PROCESS.
75. The West Carroll Township Municipal Building is located at 142 Township Drive,
Elmora, PA 15737.
a. The building houses both the administrative office and the maintenance
garage.
76. Between the December 2009 and January 2010 regular meetings, Supervisor
Bassett discovered that the Township’s garage door was damaged and in need of
replacement.
Polites, 11-003
Page 16
a. The damage to the door did not allow the door to close properly.
77. Supervisor Bassett notified Polites and inquired about a temporary repair to the
door.
a. Polites viewed the damage to the garage door.
b. Polites constructed a sliding garage door to temporarily correct the problem.
78. Subsequent to the temporary repair, Polites and Bassett discussed obtaining
quotes for a new door.
a. Polites indicated the need to obtain additional quotes regarding the
purchase of the door.
b. Polites indicated that he had two garage doors which could function as a
replacement to the damaged door and was willing to sell one to the
Township.
c. Polites indicated that his quote would be the lowest of those obtained due to
the fact that he had purchased the doors several years ago.
79. Polites had garage door(s) available for sale as a result of his unused supplies from
Northern Cambria Contractors.
a. Polites purchased the garage door in the 1990s for approximately $1,100.00
from Bobick’s Hardware, located in Northern Cambria, Pennsylvania.
1. Polites purchased the door for the construction of a garage which
never occurred.
2. The garage door was not used by Polites or LB/W Builders
(previously Northern Cambria Contractors) prior to it being sold to the
Township.
b. The original receipt for the door could not be obtained.
80. The Board did not discuss or pursue public advertisement for a garage door.
81. Polites, as a Township Supervisor, solicited quotes for a new garage door prior to
the January 2010 meeting without being authorized or directed by the Board to do
so.
a. Polites independently sought quotes from local vendors Raynor Garage
Door, Overhead Garage Door, and Long Barn.
82. At the January 4, 2010, regular meeting, the Board discussed replacing the garage
door.
a. Polites presented quotes to the Board for a new door as follows:
Supplier Description Quote
Raynor Garage Door 12W X 10H $1,297.28
Overhead Door Co. 12W X 10H $1,360.00
Polites, 11-003
Page 17
Long Barn 12W X 10H (Holmes) #240 $1,341.75
2” thick insulated commercial door
LB/W Builders 12W X 10H $1,050.00
600V clopay
2” insulated commercial
b. The quotes did not include the labor for the installation.
83. At the January 4, 2010, regular meeting, Supervisor Bassett motioned, seconded by
Taylor, to accept the bid submitted by Polites’ company (LB/W Builders) for a
garage door.
a. The motion passed via 2-0 vote with Polites abstaining.
84. On or shortly after the January 4, 2010, Board meeting, Polites participated in a
Board discussion authorizing him to install the door at the applicable Supervisor
employee wage.
a. The Township Supervisor employee wage in 2010 was $10.00 an hour as
set by the Township Board of Auditors.
b. Polites volunteered to install the door at the Township employee wage after
questions arose about the installation.
85. Polites participated in Board discussions relating to the purchase and installation of
the door.
a. Polites abstained from the Board vote to approve the purchase of the garage
door from LB/W Builders.
86. Polites submitted a bill to the Township from LB/W Builders on March 20, 2010, in
the amount $1,050.00.
a. The bill’s description was for (1) - 12’ X 10’ Model 600V clopay insulated
garage door.
87. The Township issued payment in the form of check #4596, dated April 8, 2010, to
LB/W Builders in the amount of $1,050.00.
a. The check was signed by Supervisor Bassett and [Secretary/Treasurer]
Flora.
b. The memo section notes: 12’ x 10’ garage door.
88. Polites maintains a business checking account for LB/W Builders at County
National Bank under account #XXX9095.
a. Polites shares signature authority with his brother Kenneth Polites over
account #XXX9095.
b. Check #4596 was deposited on April 16, 2010, into LB/W Builders’ business
checking account.
89. Minutes of the May 3, 2010, regular meeting list the monthly expenditure for the
payment to LB/W Builders (check #4596).
Polites, 11-003
Page 18
a. At the meeting, Supervisor Taylor questioned Polites if the garage door
came with a warranty.
1. Polites indicated that no warranty came with the garage door.
2. Polites did not provide the Township with a proof of purchase or
warranty for the garage door.
b. Supervisor Bassett motioned, seconded by Polites, to approve the April
expenses, including payment to LB/W Builders for the garage door.
c. The motion passed via 2-0 vote with Polites voting in favor.
1. Supervisor Taylor abstained from the vote.
90. Polites and/or a business with which he is associated realized a private pecuniary
gain when he used the authority of his public position to participate in discussions
and actions of the Board, including reviewing and preparing bids and specifications,
resulting in the award of a contract to Ace Excavating, a business with which he is
associated, as well as voting to approve payments to said business.
THE FOLLOWING FINDINGS RELATE TO DISCREPANCIES ON POLITES’
STATEMENT OF FINANCIAL INTERESTS FORMS FOR CALENDAR YEARS 2006,
2007, 2008, AND 2009.
91. Section 1104(a) of the State Ethics Act sets forth that public officials are to file a
Statement of Financial Interests (“SFI”) form with the governing authority of the
st
political subdivision within which appointed or elected no later than May 1 of each
year that the individual holds such a position and of the year after the individual
leaves such a position.
a. Polites has served as a West Carroll Township Supervisor from August 19,
2005, to the present.
92. On February 3, 2011, a Statement of Financial Interests compliance review
conducted by the Investigative Division of the State Ethics Commission for West
st
Carroll Township determined that Polites filed SFIs with the Township by May 1 of
each year for calendar years 2006, 2007, 2008, and 2009.
93. Polites failed to disclose direct/indirect sources of income in excess of $1,300 from
Ace Excavating, LB/W Builders, and West Carroll Township on his SFI form filed for
calendar year 2006.
94. Polites failed to disclose direct/indirect sources of income in excess of $1,300 from
LB/W Builders on his SFI form filed for calendar year 2007.
a. Polites received payments in excess of $1,300.00 from LB/W Builders in
2007.
95. Polites failed to disclose his employment in LB/W Builders on his SFI forms for
calendar years 2006, 2007, and 2008.
96. Polites failed to disclose his financial interest in Ace Excavating on his SFI forms
filed for calendar years 2006 and 2007.
Polites, 11-003
Page 19
97. Polites failed to disclose his financial interest in LB/W Builders on his SFI forms for
calendar year 2009.
III.DISCUSSION:
As a Supervisor for West Carroll Township (“Township”) from August 19, 2005, to
the present, Respondent Timothy Polites, hereinafter also referred to as “Respondent,”
“Respondent Polites,” and “Polites,” 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 Polites violated Sections 1103(a), 1103(f), and 1105(b) of
the Ethics Act: (1) when he used the authority of his public position for the private
pecuniary benefit of himself and/or businesses with which he is associated by participating
in discussions and actions of the Township Board of Supervisors, including reviewing and
preparing bids and specifications, resulting in the award of contracts to businesses with
which he is associated, and when he subsequently participated in the approval of
payments to these companies; (2) when contracts were awarded to businesses with which
he is associated without an open and public process; (3) when he failed to disclose on
Statements of Financial Interests (“SFIs”) filed for the 2006, 2007, and 2008 calendar
years all direct and/or indirect sources of income and office, directorship or employment in
any business; and (4) when he failed to disclose on SFIs filed for the 2006, 2007, and
2009 calendar years his financial interests in any legal entity in business for profit.
Per the Consent Agreement, the Investigative Division has exercised its
prosecutorial discretion to nol pros the allegation under Section 1103(f) of the Ethics Act.
Based upon the nol pros, we need not address the Section 1103(f) allegation that 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).
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.
Polites, 11-003
Page 20
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 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.
Section 1105(b)(8) of the Ethics Act requires the filer to disclose on the SFl any
office, directorship or employment in any business entity.
Section 1105(b)(9) of the Ethics Act requires the filer to disclose on the SFI any
financial interest in any legal entity engaged in business for profit. The term “financial
interest” is defined in the Ethics Act as “[a]ny financial interest in a legal entity engaged in
business for profit which comprises more than 5% of the equity of the business or more
than 5% of the assets of the economic interest in indebtedness.” 65 Pa.C.S. § 1102.
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.
Polites has served as a Township Supervisor from August 19, 2005, to the present.
The Township is governed by a three-Member Board of Supervisors (“Board”). Polites
served as Chairman of the Board in 2010 and 2011. The Township has employed and
compensated Polites as an “as needed” working Supervisor at various times throughout
his tenure.
Professionally, Polites has been a building contractor since at least 1984. Polites
has had financial interests in general contracting businesses, including Ace Excavating
and LB/W Builders.
As of March 1993, Polites had a business interest in Ace Excavating. Ace
Excavating’s 2006 federal tax filings list Polites as having a 50% (partner) share of the
company’s profit, loss, and capital. Ace Excavating specializes in all types of commercial
and residential excavation and performs building contractor projects, including carpentry
specific work and residential renovations. Ace Excavating has not conducted any
business on behalf of Polites since mid-2007.
Since February 1998, Polites and his son, Wade Polites, have had business
interests in LB/W Builders. LB/W Builders is a general contracting/new home construction
business based out of Polites’ private residence.
The West Carroll Township Municipal Building (“Township Building”) houses both
the administrative office and the maintenance garage. As early as February 2002, the
Board discussed a renovation project to address the deteriorating condition of the
Township Building’s roof. On or about October 31, 2002, the Township’s engineer
consulting firm, Gwin, Dobson, and Foreman, Inc. (“GDF”) sent the Township a brief
narrative and specifications for the Township Building roof renovation project. GDF
recommended extending the block walls and constructing a new wood truss, pitched roof
Polites, 11-003
Page 21
above the existing deteriorating flat roof. The Board did not pursue roof renovations in
2002 due to financial restraints.
On September 12, 2005, the Board discussed the need for repairs to the Township
Building roof. The Board agreed to pursue the roof renovation project and to have Polites,
as a Township Supervisor, develop the project specifications before any further decision
on the project was made. At the Board’s February 7, 2006, meeting, Polites participated in
the vote to approve a list of repairs/upgrades for the Township Building which needed to
be completed as the funds became available, including obtaining a plan for roof
renovations. At the time of this vote, Polites intended to bid on completion of the roof
project as a private contractor, but he never disclosed his intentions to the other
Supervisors.
In or about March 2006, Polites, as a Township Supervisor, contacted GDF for
assistance in relation to the Township Building roof renovation project. A GDF engineer
estimated the cost of the project to be between $90,000.00 and $100,000.00. Polites, as a
Township Supervisor, oversaw the administration and completion of the roof renovation
project, which followed GDF’s original project recommendations created in 2002.
At the Board’s April 3, 2006, meeting, Polites participated in the vote to advertise for
bids to repair the Township Building roof. On or about April 20, 2006, the Township
advertised in a local newspaper for bids for additional block work as part of the roof
project. Even though the Township advertised for bids, Polites individually solicited quotes
from Bassett Masonry and M&M Concrete for the block work because he had planned to
submit a bid for such work to the Township on behalf of ACE Excavating and/or LB/W
Builders. In order to ensure that his bid could be reviewed, Polites wanted more than one
quote for the Board to review.
M&M Concrete did not submit a bid for the block work. Polites submitted proposals
to the Township in relation to the block work on behalf of both LB/W Builders and Ace
Excavating. Bassett Masonry also submitted a bid for such work. On May 1, 2006, the
Board, including Polites, voted to award the contract to perform block work on the
Township Building to Bassett Masonry.
In or about the summer of 2006, Polites, as a Township Supervisor, recommended
that the Board pursue separate quotes/bids for the materials, trusses, and labor for the
Township Building roof renovation project. Polites believed that the Township would
obtain a lower overall cost by bidding each aspect separately. Polites’ recommendation
resulted in the Board pursing the project via separate bids/quotes for materials and labor.
During this time period, Polites intended to bid on the project.
In his official capacity as a Township Supervisor, Polites generated the project’s
materials listing and scope of work based upon GDF’s project narrative and designs.
In or about May 2006, Polites solicited and received quotes on behalf of the
Township for materials and roof trusses from local vendors. On June 5, 2006, Polites
participated in two Board votes to approve separate quotes for the purchase of roof
trusses and roof materials and a third Board vote to advertise for bids regarding labor for
the roof project. Polites intended to submit a bid, but he did not publicly disclose his intent.
The estimated cost of the Township Building roof renovation project required the
payment of prevailing wages pursuant to the Pennsylvania Prevailing Wage Act. Polites,
as a Township Supervisor, submitted a request for a Prevailing Wage Determination to the
Pennsylvania Department of Labor and Industry to obtain the prevailing hourly rate for
wages in the area. Polites solicited this information to assist in his preparation to submit a
Polites, 11-003
Page 22
bid on the project. Polites obtained the prevailing wage information and utilized it to
determine the amount he ultimately bid on the project.
Polites, as a Township Supervisor, created the labor specifications for installation of
the roof trusses to the Township Building. Polites had specific knowledge of the required
labor and estimated cost of the project as a result of his involvement in organizing the
project. Polites utilized the scope of the project, prevailing wage forms, and GDF’s
engineers’ specifications/designs to compile a bid proposal package.
The Township advertised for bids for the labor on the roof project on August 23,
2006, and August 26, 2006. Polites contacted M&M Concrete and Bassett Masonry and
solicited each business to submit a bid for the project. At the time of the solicitations,
Polites knew he would be submitting a bid for the project, but he did not disclose to either
contractor his plans to submit a bid.
At the September 5, 2006, Board meeting, Polites submitted a bid proposal for the
labor portion of the roof project to the Township on behalf of Ace Excavating. The bid
proposal was in the amount of $34,760.00 and was signed by Polites. Bids from M&M
Concrete, Bassett Masonry, and Ace Excavating were opened and reviewed, and the
Board approved Ace Excavating’s bid by a vote of 2-0. Polites abstained from the Board
vote approving Ace Excavating’s bid but did not submit a memorandum outlining the nature
of his conflict of interest.
At an impromptu meeting after the September 5, 2006, Board meeting, Supervisor
Drew Bassett (“Bassett”) and Supervisor Tom Taylor (“Taylor”) discussed with Polites
having Ace Excavating provide a performance bond as required by the Second Class
Township Code. Polites was not aware that a performance bond was required. Following
the discussion, an agreement was reached that Polites/ACE would not have to supply a
performance bond for the labor to be provided by Ace Excavating. Polites’ position as a
Township Supervisor influenced the other Supervisors’ decision to not require Polites to
supply a performance bond, and other contractors would not have been allowed to avoid
the bond requirement. Polites avoided the cost of $869.00 for a performance bond as a
result of his assurance to the other Supervisors that he would repair any damages of the
project.
Polites was Ace Excavating’s foreman for the Township Building roof project.
Polites utilized two Ace Excavating employees and sub-contracted two additional laborers
for the project. Payroll certificates completed by Polites for the project list the project as
being completed between October 9, 2006, and October 27, 2006. The two Ace
Excavating employees and the two sub-contracted laborers were paid a total of $9,843.40
in gross wages for a total of 311.5 hours of labor associated with the project. Polites was
not listed on the payroll sheets even though he also performed labor, and the total amount
of hours he worked on the project could not be accounted for or determined.
Polites submitted four undated invoices to the Township on behalf of Ace
Excavating for labor performed on the Township Building roof project. As detailed in Fact
Finding 72, Polites voted to approve four payments totaling $34,760.00 for the project that
were issued by the Township to Ace Excavating between October 14, 2006, and December
14, 2006. The parties have stipulated that Polites and/or a business with which he is
associated realized a private pecuniary gain when he used the authority of his public
position to participate in discussions and actions of the Board, including reviewing and
preparing bids and specifications, resulting in the award of a contract to Ace Excavating, a
business with which he is associated, as well as voting to approve payments to said
business.
Between the December 2009 and January 2010 regular meetings of the Board,
Bassett discovered that the Township Building’s garage door was damaged and in need of
Polites, 11-003
Page 23
replacement. Bassett notified Polites, who constructed a sliding garage door to
temporarily correct the problem. Polites and Bassett subsequently discussed obtaining
quotes for a new door. Polites indicated that he was willing to sell the Township a garage
door he had which could function as a replacement to the damaged door. Polites indicated
that his quote would be the lowest obtained as the garage door had been purchased years
ago. The garage door was an unused supply that Polites had purchased in the 1990s for
approximately $1,100.00 for a project which never occurred.
The Board did not discuss or pursue public advertisement for a new garage door.
Without being authorized or directed to do so by the Board, Polites solicited quotes from
local vendors for a new garage door. On January 4, 2010, Polites presented quotes from
three local vendors and LB/W Builders for a new garage door. The quotes did not include
the labor for the installation of the new door. LB/W Builders’ quote of $1,050.00 was the
lowest of the four quotes. Polites abstained from a 2-0 vote by the Board to approve the
purchase of the garage door from LB/W Builders.
On or shortly after January 4, 2010, Polites participated in a Board discussion
authorizing him to install the door at the applicable Supervisor employee wage of $10.00
per hour as set by the Township Board of Auditors. Polites volunteered to install the door
at such wage after questions arose about the installation.
On March 20, 2010, Polites submitted a bill in the amount of $1,050.00 from LB/W
Builders for the garage door. At the May 3, 2010, Board meeting, Polites seconded the
motion and participated in the Board’s 2-0 vote to approve the Township’s April expenses,
which included a $1,050.00 payment to LB/W Builders for the garage door.
As for Polites’ SFIs, on February 3, 2011, the Investigative Division of this
Commission conducted an SFI compliance review of the Township. Although Polites’ SFIs
for calendar years 2006, 2007, 2008, and 2009 were on file with the Township, Polites
failed to disclose: (1) Ace Excavating, LB/W Builders, and the Township as direct/indirect
sources of income on his SFI for calendar year 2006; (2) LB/W Builders as a direct/indirect
source of income on his SFI for calendar year 2007; (3) his employment with LB/W
Builders on his SFIs for calendar years 2006, 2007, and 2008; (4) his financial interest in
Ace Excavating on his SFIs for calendar years 2006 and 2007; and (5) his financial
interest in LB/W Builders on his SFI for calendar year 2009.
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 violation of Section 1103(a) of the Public
Official and Employee Ethics Act, 65 Pa.C.S. §
1103(a), occurred in relation to Polites’
participation and actions as a Township
Supervisor in the reviewing and preparing of
bids and specifications in relation to a Township
building project, resulting in the award of
contracts to businesses with which he is
associated and when he subsequently
participated in the approval of payments to these
companies.
Polites, 11-003
Page 24
b. As part of a negotiated settlement agreement,
the allegations arising under § 1103(f), namely
that Polites violated Section 1103(f) of the Public
Official and Employee Ethics Act, 65 Pa.C.S. §
1103(f), when a business with which he was
associated entered into contracts in excess of
$500.00 with his governmental body without an
open and public process, are hereby nol
prossed.
c. That a violation of Section 1105(b) of the Public
Official and Employee Ethics Act, 65 Pa.C.S. §
1105(b), occurred when Polites failed to disclose
on Statements of Financial Interests filed for the
2006, 2007, and 2008 calendar years all direct
and/or indirect sources of income, [and] office,
directorship or employment in any business; and
when he failed to disclose on Statements of
Financial Interests filed for the 2006, 2007, and
2009 calendar years his financial interests in any
legal entity in business for profit.
4. Polites agrees to make payment in the amount of $4,000.00 in
settlement of this matter payable to West Carroll Township
and forwarded to the Pennsylvania State Ethics Commission
within thirty (30) days of the issuance of the final adjudication
in this matter.
5. Polites agrees to file amended Statements of Financial
Interests disclosing all information required with West Carroll
Township, through the Pennsylvania State Ethics Commission,
for calendar years 2006, 2007, 2008, and 2009 within thirty
(30) days of the issuance of the final adjudication in this
matter.
6. Polites agrees to not accept any reimbursement,
compensation or other payment from West Carroll Township,
etc. representing a full or partial reimbursement of the amount
paid in settlement of this matter.
7. 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 2-3.
In considering the Consent Agreement, we accept the recommendation of the
parties for a finding of a violation of Section 1103(a) of the Ethics Act.
Polites, 11-003
Page 25
On February 7, 2006, Polites participated in the Board’s vote to approve a list of
repairs/upgrades for the Township building which needed to be completed as the funds
became available, including obtaining a plan for roof renovations to the Township Building.
At the time of this vote, Polites intended to bid on completion of the roof project as a
private contractor, but he never disclosed his intentions to the other Supervisors.
Polites, as a Township Supervisor, oversaw the administration and completion of
the roof project. In his official capacity as a Township Supervisor, Polites generated the
project’s materials listing and scope of work based upon GDF’s project narrative and
designs. As a result of a recommendation from Polites, the Board pursued separate
quotes/bids for the materials and labor for the Township Building roof renovation project.
On June 5, 2006, Polites participated in a Board vote to advertise for bids regarding labor
for the roof project. Polites intended to submit a bid, but he did not publicly disclose his
intent.
Polites, as a Township Supervisor, created the labor specifications for installation of
the roof trusses to the Township Building. Polites had specific knowledge of the required
labor and estimated cost of the project as a result of his involvement in organizing the
project. Polites utilized the scope of the project, prevailing wage forms, and engineers’
specifications/designs from GDF to compile a bid proposal package. Polites, as a
Township Supervisor, obtained the prevailing hourly rate for wages in the area and utilized
this information to determine the amount he ultimately bid on the roof project.
At the Board meeting on September 5, 2006, Polites submitted a bid proposal for
the labor portion of the roof project to the Township on behalf of Ace Excavating, a
business with which Polites is associated. Polites abstained from the Board’s vote to
approve Ace Excavating’s bid. Polites used the authority of his office when he voted to
approve four payments totaling $34,760.00 for labor performed on the project that were
issued by the Township to Ace Excavating between October 14, 2006, and December 14,
2006.
The parties have stipulated that Polites and/or a business with which he is
associated realized a private pecuniary gain when he used the authority of his public
position to participate in discussions and actions of the Board, including reviewing and
preparing bids and specifications, resulting in the award of a contract to Ace Excavating, a
business with which he is associated, as well as voting to approve payments to said
business.
At the Board’s January 4, 2010 meeting, Polites abstained from the Board’s vote to
approve the purchase of a garage door for the Township Building from LB/W Builders, a
business with which Polites is associated. Polites used the authority of his office when he
seconded the motion and participated in the Board’s May 3, 2010, vote to approve the
Township’s April expenses, which included a $1,050.00 payment to LB/W Builders for the
garage door.
Based upon the Stipulated Findings and Consent Agreement, we hold that a
violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to
Polites’ participation and actions as a Township Supervisor in the reviewing and preparing
of bids and specifications in relation to a Township building project, resulting in the award
of contracts to businesses with which he is associated, and when he subsequently
participated in the approval of payments to these companies.
We hold that a violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b),
occurred when Polites failed to disclose on SFIs filed for the 2006, 2007, and 2008
calendar years all direct and/or indirect sources of income, and office, directorship or
employment in any business; and when he failed to disclose on SFIs filed for the 2006,
Polites, 11-003
Page 26
2007, and 2009 calendar years his financial interests in any legal entity in business for
profit.
As part of the Consent Agreement, Polites has agreed to make payment in the
amount of $4,000.00 payable to West Carroll Township and forwarded to this Commission
within thirty (30) days of the issuance of the final adjudication in this matter.
Polites has agreed to not accept any reimbursement, compensation or other
payment from the Township, etc. representing a full or partial reimbursement of the amount
paid in settlement of this matter.
Polites has further agreed to file with the Township, through this Commission,
amended SFIs for calendar years 2006, 2007, 2008, and 2009, disclosing all information
required, 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, Polites is directed to make
payment in the amount of $4,000.00 payable to West Carroll Township and forwarded to
th
this Commission by no later than the thirtieth (30) day after the mailing date of this
adjudication and Order.
Per the Consent Agreement of the parties, Polites is further directed to not accept
any reimbursement, compensation or other payment from the Township, etc. representing
a full or partial reimbursement of the amount paid in settlement of this matter.
Polites is further directed to file with the Township, through this Commission,
amended SFIs for calendar years 2006, 2007, 2008, and 2009, disclosing all information
th
required, 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.
Polites, 11-003
Page 27
IV.CONCLUSIONS OF LAW:
1. As a Supervisor for West Carroll Township (“Township”) from August 19, 2005, to
the present, Respondent Timothy Polites (“Polites”) 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. A violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in
relation to Polites’ participation and actions as a Township Supervisor in the
reviewing and preparing of bids and specifications in relation to a Township building
project, resulting in the award of contracts to businesses with which he is
associated, and when he subsequently participated in the approval of payments to
these companies.
3. A violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred
when Polites failed to disclose on Statements of Financial Interests (“SFIs”) filed for
the 2006, 2007, and 2008 calendar years all direct and/or indirect sources of
income, and office, directorship or employment in any business; and when he failed
to disclose on SFIs filed for the 2006, 2007, and 2009 calendar years his financial
interests in any legal entity in business for profit.
In Re: Timothy J. Polites, : File Docket: 11-003
Respondent : Date Decided: 1/30/12
: Date Mailed: 2/14/12
ORDER NO. 1597
1. As a Supervisor for West Carroll Township (“Township”), Timothy J. Polites
(“Polites”) violated Section 1103(a) of the Public Official and Employee Ethics Act
(“Ethics Act”), 65 Pa.C.S. § 1103(a), in relation to his participation and actions as a
Township Supervisor in the reviewing and preparing of bids and specifications in
relation to a Township building project, resulting in the award of contracts to
businesses with which he is associated, and when he subsequently participated in
the approval of payments to these companies.
2. A violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred
when Polites failed to disclose on Statements of Financial Interests (“SFIs”) filed for
the 2006, 2007, and 2008 calendar years all direct and/or indirect sources of
income, and office, directorship or employment in any business; and when he failed
to disclose on SFIs filed for the 2006, 2007, and 2009 calendar years his financial
interests in any legal entity in business for profit.
3. Per the Consent Agreement of the parties, Polites is directed to make payment in
the amount of $4,000.00 payable to West Carroll Township and forwarded to the
th
Pennsylvania State Ethics Commission by no later than the thirtieth (30) day after
the mailing date of this Order.
4. Per the Consent Agreement of the parties, Polites is further directed to not accept
any reimbursement, compensation or other payment from the Township, etc.
representing a full or partial reimbursement of the amount paid in settlement of this
matter.
5. Polites is directed to file with the Township, through this Commission, amended
SFIs for calendar years 2006, 2007, 2008, and 2009, disclosing all information
th
required, by no later than the thirtieth (30) day after the mailing date of this Order.
6. Compliance with Paragraphs 3, 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