HomeMy WebLinkAbout1607 Carner
In Re: Dave Carner, : File Docket: 11-027
Carner : X-ref: Order No. 1607
: Date Decided: 9/24/12
: Date Mailed: 10/9/12
Before: John J. Bolger, Chair
Donald M. McCurdy, Vice Chair
Raquel K. Bergen
Nicholas A. Colafella
Mark Volk
Mark R. Corrigan
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 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 Dave Carner, a public official/public employee in his capacity as a Supervisor
for Fairview Township, Erie County, violated Sections 1103(a), 1103(f), 1104(a) and
1104(d) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §§ 1103(a), 1103(f), 1104(a)
and 1104(d), 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 participating in discussions and actions of the Board of
Supervisors resulting in the hiring of a business owned by his father to perform services for
the Township; and when the services performed were in excess of $500 and awarded
without an open and public process; and when he participated in actions of the Board of
Supervisors to approve payments issued to a member of his immediate family and/or a
business with which a member of his immediate family is associated; and when he failed to
file Statements of Financial Interests for the 2007 and 2008 calendar year.
II.FINDINGS:
1. Dave Carner has served as a Fairview Township, Erie County, Supervisor from
January 2002 to the present.
a. Carner served as the Chairman of the Board in 2003, 2004, 2009 and 2010.
b. Carner served as the Vice Chairman of the Board in 2002, 2007 and 2008.
Carner, 11-027
Page 2
2. Carner has served as a Roadmaster/working Supervisor for Fairview Township
(hereafter, “Township”) from January 2002 to the present.
a. Carner’s main area of responsibility as Roadmaster is related to Township
infrastructure/roads.
b. Carner’s main area of responsibility as a working Supervisor is sanitary
sewers, storm sewers, water, and signs.
c. Carner works full-time as a Township Roadmaster/Supervisor.
d. Carner was privately employed as a self-employed building contractor under
the business name of “Dave Carner Trades” prior to his Roadmaster
employment.
1. “Dave Carner Trades” is still an active business performing a minimal
amount of services for customers.
3. The Township is a Second Class Township governed by a three Member Board of
Supervisors (hereafter, “Board”).
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a. The Board holds regular monthly meetings on the 7 and 21 of each month.
1. Meetings alternate between the morning (9:00 a.m.) and evening
(7:00 p.m.).
b. The Board, Secretary/Treasurer, and Zoning Officer typically attend
Township regular meetings.
1. The Solicitor and Engineer alternate in attending regular meetings.
c. Workshop meetings/sessions are typically held on Wednesdays on an as
needed basis.
4. The Township circular(s) of record are The Erie Times.
a. Township advertisements are submitted by the Secretary/Treasurer for
circulation.
5. Voting at Township meetings occurs in a group aye/nay fashion.
a. All objections and abstentions are noted within the minutes.
1. A letter from the abstaining official noting the reason for the
abstention is filed at the Township.
b. The minutes of each meeting are approved for accuracy at each subsequent
meeting.
6. The Township Secretary/Treasurer is responsible for generating Township checks
and expense reports.
a. The Secretary generates an expense report for Supervisor review/approval
at each regular meeting.
Carner, 11-027
Page 3
1. The report lists the check date and number, payee, memo, and
amount.
b. The expense report represents all expenses incurred by the Township from
the prior meeting to the current meeting.
1. Invoices are provided to the Supervisors for review by the
Secretary/Treasurer upon request.
7. The Secretary/Treasurer compiles a meeting packet for each Supervisor that
includes the meeting agenda, previous month’s minutes, and a list of expenses.
a. The Supervisors receive the packet at least three days prior to the meeting.
1. The meeting agenda is also posted on the Township’s website at
least three days prior to the meeting.
2. Expense reports are received at least one day prior.
b. Correspondence received at the Township is provided to the Board by the
Secretary/Treasurer at each regular meeting.
8. Signature authority over Township accounts is maintained by the
Secretary/Treasurer and all Board Members.
a. Checks require the signatures of any combination of two Supervisors and
the Secretary/Treasurer.
b. Checks are typically signed immediately following the adjournment of the
public meeting.
1. Checks are signed on occasion in between regular meetings to avoid
the accrual of late fees.
c. Signature stamps and live signatures are utilized.
1. Signature stamps are stored at the Township building in each
signatory’s desk.
9. The Supervisors have traditionally appointed themselves as full-time working
Roadmasters/Supervisors at the annual re-organization meeting.
a. Each Roadmaster is designated a specific section of Township roads to
maintain.
b. Each working Supervisor is assigned specific duties.
1. The duties are separated as follows:
- Overseer of sanitary sewers, storm sewers, water, and signs;
- Overseers of road maintenance, road personnel and supplies; and
- Overseer of administration, recycling, planning, zoning, safety, and parks
and recreation.
10. The Supervisors’ salary is set annually by the Township’s elected Auditors.
a. The salary represents compensation for the performance of the Roadmaster,
working Supervisor, and elected Supervisor duties/responsibilities.
Carner, 11-027
Page 4
b. The Supervisors do not receive the specific/separate Supervisor salary
established by the Second Class Township Code.
11. The Supervisors employed by the Township work regularly from 6:00 a.m. to 3:00
p.m., Monday through Friday.
a. The Supervisors work out of the Township municipal building.
b. Each Supervisor submits a timesheet as a record of the hours worked each
day.
1. The timesheets are utilized by the Secretary/Treasurer for payroll
purposes and the recording of sick/personal time.
12. The Supervisors oversee the Township’s full-time, four (4) man road crew.
a. The Township employs “as needed” workers in the summer and winter.
13. The Supervisors discuss Township operations/work to be completed on a day-to-
day basis.
a. The work discussed includes repairs/service calls, delegation of work for the
road crew, resident complaints, etc.
b. Supervisors do not make decisions on Township operations/work without
consulting with one another.
14. Expenses that accrue from Township operations/work are submitted to the
Secretary/Treasurer for payment.
a. Billings are submitted directly from vendor/service providers to the Township
and/or through the Supervisors.
15. The Supervisors typically follow bidding/advertising requirements set forth by the
Second Class Township Code.
a. Building maintenance/repairs are assessed by the Supervisors prior to any
service repairman being notified.
b. The Supervisors utilize specific service repairmen/companies for building
maintenance/repairs covered under existing warranties.
16. Since as early as 2002, Township Supervisors began initial planning for
renovations/additions to the Township municipal building.
a. Project meetings were held as needed between the Township Supervisors
and the project architect Gary Matczak.
1. Carner was a Township Supervisor at the time and participated in the
project meetings.
b. Included as part of the renovations were improvements to the building’s
temperature control system.
1. The temperature control system included the building’s boilers, air
conditioning system, and temperature control panel.
Carner, 11-027
Page 5
2. The system was an environmentally friendly “hybrid” system that was
familiar to Carner and Supervisor Kraus.
c. Carner participated in the review of the temperature control system, along
with Supervisor Kraus.
d. The renovations/additions were not pursued at that time due to financial
constraints.
17. The Township separately bid the project for the construction, HVAC, plumbing,
electrical, and demolition disciplines.
a. The HVAC bid was awarded to Comfort Heating and Air Conditioning at a
public meeting in April 2006.
18. Comfort Heating and Air Conditioning had operated as an HVAC company based
out of Fairview Township until approximately 2009.
a. Comfort Heating and Air Conditioning was owned by Mark Iutocovich and
managed by foreman Larry Weiss.
b. Weiss assessed the scope of the Township project HVAC bid and
determined the bid for Comfort Heating and Air Conditioning.
c. Weiss sub-contracted Michael J. Agnello for the plumbing work of the
contract.
d. Comfort Heating and Air Conditioning dissolved by 2009 as a result of the
death of Iutocovich.
1. Weiss quit the repair/contracting service field at that time.
19. Carner regularly attended contracting/architect meetings relating to the Township’s
new building as a result of his official Township position.
a. Carner served as the Township point-of-contact with the project contractors
and architect.
20. Clark Carner (hereafter, also referred to as “C. Carner”) is Carner’s father.
a. Clark Carner is self-employed as the owner/operator of “Carner Services.”
21. Carner Services was established in approximately 1980 and is based from Clark
Carner’s residence in Fairview, Pennsylvania.
a. Carner Services specializes in electrical/plumbing, to include boiler systems,
temperature control panels, and hydraulic pump filters.
b. Carner Services is not an incorporated business in the Commonwealth.
c. Carner Services employs workers on an as needed basis.
d. Dave Carner has assisted Carner Services on occasion without receiving
compensation.
Carner, 11-027
Page 6
22. On or about April 2006, Dave Carner discussed with the remaining Supervisors
work necessary to be completed on the old Township building’s heat/water system
in preparation for the building’s demolition.
a. The necessary work required prior to the building’s demolition included
adjustments to the heat and water systems.
b. The discussion was conducted outside of a public meeting.
1. The discussion occurred among the Township Supervisors during
normal working hours.
23. Dave Carner recommended to the Supervisors that Carner Services perform the
work.
a. Carner’s recommendation was provided without the solicitation of quotes or
public advertisement.
1. Clark Carner was recognized due to his expertise in boiler systems.
b. The remaining Supervisors agreed with Dave Carner’s recommendation.
c. Carner made the recommendation with the expectation Carner Services
would be compensated by the Township.
24. Dave Carner arranged for the completion of the work with Carner Services.
a. Carner was the Township point-of-contact with Carner Services throughout
the service performed.
25. Carner did not discuss or negotiate the cost to perform the work with Carner
Services and/or the Supervisors.
a. No specific costs, hourly wage, etc. was approved by the Supervisors for the
work to be completed by Carner Services.
26. Carner Services submitted an invoice, dated May 1, 2006, in the amount of $300.00
for 6 hours of labor charges incurred on the service date of April 20, 2006.
a. The service was listed to have been performed on April 20, 2006.
b. The invoice description documents the following service performed:
Help changing heat and water from old building to the boiler room so the old building
could be torn down.
c. Dave Carner reviewed the invoice at or about the time of it being submitted.
27. At the June 21, 2006, regular meeting, the Board unanimously voted to approve
payment of expenses documented on the monthly bill list from the Township
General Fund, including payment to Carner Services in the amount of $300.00.
a. Carner was present at the meeting and participated in the unanimous vote to
approve the expenses.
28. Township check #32823, dated June 21, 2006, was issued to Carner Services in
the amount of $300.00.
Carner, 11-027
Page 7
a. Check #32823 was signed by Carner, Supervisors Pete Kraus and Bradley
Bierer, and Secretary/Treasurer Barbara Partchey.
29. In 2006/2007, Comfort Heating and Air Conditioning Foreman Weiss arranged to
have Carner Services assist in the installation of the new Township building’s
HVAC’s boiler system/temperature control panel.
a. Weiss has been a longtime friend of Clark Carner.
b. Clark Carner has provided service and repairs to Weiss’s rental properties,
to include water-well and temperature control wiring services.
30. Weiss approached Carner Services after being unable to successfully install the
HVAC boiler system/temperature control panel.
a. Weiss had been pressed to meet project deadlines by Matczak and the
Township Supervisors, including Carner.
b. Weiss did not consult with the Supervisors, including Carner, in regards to
acquiring additional help for the installation.
31. Carner was aware that Carner Services assisted Weiss in the installation as a
result of his oversight of the project for the Township and through communications
with his father.
a. The remaining Supervisors were also aware that Carner Services assisted
Weiss.
b. There was no vote of the Board to authorize the services by Carner Services.
32. Dave Carner ultimately assisted Carner Services with the installation after he
became aware of the arrangement between Carner Services and Weiss.
a. The remaining Supervisors were aware of Dave Carner working with Carner
Services.
33. Dave Carner assisted Clark Carner both during his normal working hours at the
Township and after-hours.
a. Dave Carner received his regular ‘working’ Supervisor wages while assisting
Clark Carner.
1. Dave Carner’s timesheets do not document the work assisting Clark
Carner.
b. The total number of hours worked by Dave Carner after hours could not be
determined.
c. Dave Carner also assisted General Contractor(s) – Considine Biebel,
Electrical Contractor – Newco Electric; Plumbing Contractor – Scobell
Plumbing and HVAC Contractor, Comfort Heating.
1. Often Carner would assist the above listed contractors and the
supplier of the Hybrid Temperature Control System, Standard And
[sic] & Lite Corporation, both during and after Township business
hours.
Carner, 11-027
Page 8
34. Carner Services did not invoice the Township or Comfort Heating and Air
Conditioning for the installation.
a. The Township did not compensate Carner Services for the installation.
b. Weiss compensated Carner Services “out-of-pocket” for the work.
c. Carner Services was not listed on Comfort Heating and Air Conditioning
payroll sheets for the project.
35. The construction of the Township municipal building was completed by May 2007.
a. Dave Carner was generally responsible for the maintenance/repairs of the
new Township municipal building as he was before the renovation and as a
result of his involvement in the building’s construction.
36. Necessary maintenance/repairs within the building were assessed by Dave Carner
before further discussion with the remaining Supervisors ensued.
a. Dave Carner routinely recommended necessary building maintenance/repair
to the remaining Supervisors.
b. Carner arranged for building maintenance/repairs upon receipt of the
remaining Supervisors’ approval.
1. The approval to proceed with the maintenance/repairs routinely
occurred following discussing among the Board outside of a formal
Board meeting.
37. At the January 21, 2009, regular meeting, the Board discussed issues relating to
the new Township building’s heating and air conditioning system.
a. Dave Carner was present at the January 21, 2009, regular meeting.
b. Dave Carner stated that he would look into the system’s design and/or
installation.
38. On or about February 2, 2009, Dave Carner discussed with the other Members of
the Board the necessary work which needed done on the new Township building’s
heating and air conditioning system.
a. The discussion was conducted outside of a public meeting.
b. The discussion was held among the Supervisors during the course of their
normal working hours.
39. Dave Carner recommended to the Supervisors that Carner Services perform the
work on the Township building’s heating and air conditioning system.
a. Carner’s recommendation was provided without the solicitation of quotes or
public advertisement.
b. Carner did not recommend any additional companies or individuals as
Carner Services did the control wiring for the building.
c. The remaining Supervisors agreed with Carner’s recommendation.
Carner, 11-027
Page 9
d. Carner made the recommendation with the expectation for Carner Services
to be compensated by the Township.
40. Dave Carner did not discuss or negotiate the cost to perform the work with Carner
Services and/or the Supervisors.
41. Dave Carner arranged for the completion of the work with Carner Services.
a. Dave Carner was the Township’s point-of-contact with Carner Services for
the services provided.
42. On or about February 3, 2009, Carner Services submitted an invoice to the
Township in the amount of $230.00 for services rendered on the building’s
temperature control panel.
a. The services were documented as having been performed on February 2,
2009.
b. The invoice listed the following charges:
Material- $ 30.00
1/2” conduit, fittings, and boxes
Labor- $200.00
Run conduit to neaten up wires and future
controls
Total $230.00
c. Carner reviewed the invoice at or about the time of it being submitted.
43. At the February 9, 2009, regular meeting, the Board unanimously voted to approve
payment of expenses documented on the monthly bill list from the Township
General Fund, including payment to Carner Services in the amount of $230.00.
a. Dave Carner was present at the February 9, 2009, meeting and participated
in the unanimous vote to approve the expenses.
44. Township check #37996, dated February 9, 2009, was issued to Carner Services in
the amount of $230.00.
a. Check #37996 was signed by Dave Carner, Kraus, Bierer, and Partchey.
45. On or about January 19, 2010, Dave Carner discussed with the remaining
Supervisors other work on the new Township building’s heating and air conditioning
system.
a. The discussion was conducted outside of a public meeting.
b. The discussion was held among the Supervisors during the course of their
normal working hours.
c. Work required was the replacement of the main circulator pump for the
heating system. Comfort Heating had serviced the pump several times
under warranty which did not resolve the problem, prior to Comfort Heating
going out of business.
46. Dave Carner recommended to the Supervisors that Carner Services perform the
work required.
Carner, 11-027
Page 10
a. Dave Carner’s recommendation was furnished without the solicitation of
quotes or public advertisement.
b. The remaining Supervisors agreed with Carner’s recommendation.
c. Carner made the recommendation with the expectation Carner Services
would be compensated by the Township.
47. Dave Carner authorized Carner Services to replace the pump.
a. Carner was the Township’s point-of-contact with Carner Services throughout
the service performed.
48. Dave Carner did not discuss or negotiate the cost for the work with Carner Services
and/or the Supervisors.
a. No specific cost, hourly wages, etc. with Carner Services was discussed or
approved by the Supervisors for the work.
49. Dave Carner purchased the material/parts for the work through the Township.
a. The Township usually makes efforts to purchase materials/parts for
repairmen as a cost-saving measure.
b. Dave Carner purchased the material/part with the expectation Carner
Services would do the installation.
50. On or about January 19, 2010, Carner Services submitted an invoice to the
Township in the amount of $100.00.
a. The service was documented as having been performed on January 19,
2010.
b. The invoice listed the following charges:
Material- $ 0.00
No Material
Labor- $100.00
Remove faulty pump. Dave ordered new
one. Picked up new pump and put it in.
(Pump #5 new system)
Total $100.00
c. Dave Carner reviewed the invoice at or about the time of it being submitted.
51. At the February 8, 2010, regular meeting, the Board unanimously voted to approve
the payment of expenses documented on the monthly bill list from the Township
General Fund, including payment to Carner Services in the amount of $100.00.
a. Dave Carner was present at the February 8, 2010, meeting and participated
in the unanimous vote to approve the expenses.
52. Township check #39924, dated February 4, 2010, was issued to Carner Services in
the amount of $100.00.
a. Check #39924 was signed by Carner, Supervisors Kraus and Ralph Heidler,
and Secretary/Treasurer Pamela Rhoades.
Carner, 11-027
Page 11
53. In early 2011, Dave Carner participated in discussion with the remaining
Supervisors regarding routine cleaning/maintenance of the boilers in the Township
municipal building.
a. The discussion was conducted outside of a public meeting.
b. The discussion was held among the Supervisors during the course of their
normal working hours.
c. Supervisor Kraus introduced the idea of having the routine maintenance
performed.
54. The Supervisors agreed to offer the cleaning/maintenance work to contractors who
were initially involved in the installation of the boiler system.
a. Comfort Heating and Air Conditioning, Weiss, and Agnello were no longer in
the service/repair business in 2011.
55. The Supervisors agreed to have Carner Services do the work due to Carner
Services being the only contractor in business who had initially worked on the boiler
system.
a. Kraus recommended Carner Services do the work.
b. Carner supported having Carner Services perform the cleaning/maintenance.
56. Carner contacted Carner Services to arrange the work for the boilers.
a. Carner Services was not available to perform the maintenance due to
scheduling conflicts.
57. On or about July 7, 2011, the Township municipal building boilers (PAB306319 and
PAB306318) were inspected by Jeffrey W. Nash, Hartford Steam Boiler Insurance
and Inspection Company, as required for the renewal of the equipment’s Certificate
of Operation.
a. The inspection resulted in the identification of a three (3) degree difference
in maximum temperature control shut-down between the state and
manufacturer’s standards. A “deficiency in need of correction” was issued in
order to be in compliance with law.
b. The deficiencies were forwarded to the Department of Labor and Industry
(hereafter, “DLI”), Bureau of Occupational and Industrial Safety-Boiler
Division, for corrective action.
c. The identified deficiencies had been waived by DLI in prior years.
d. Dave Carner had been informed of the deficiencies on or about the time of
the inspection as a result of his general responsibility over the maintenance
of the Township building.
58. A letter addressed to the Township from the DLI, Boiler Division Director, Lawrence
R. Kline, dated August 4, 2011, was received at the Township on or about August 8,
2011.
Carner, 11-027
Page 12
a. The letter identified deficiencies found as a result of the July 7, 2011,
inspection.
b. The letter mandated that corrective action was required within thirty days.
c. A Certificate of Operation was to be issued upon the completion of the
repairs.
59. Dave Carner contacted DLI in response to the August 4, 2011, letter to verify the
corrective action needed in order to obtain a Certificate of Operation as the
manufacturer’s temperature standards were previously accepted.
a. Carner was instructed by DLI that the corrective action was required.
60. On or about September 19, 2011, Carner discussed with the remaining Supervisors
the deficiencies and required corrective action for the Township municipal building
boiler system.
a. The discussion was conducted outside of a public meeting.
b. The discussion was held among the Supervisors during the course of their
normal working hours.
61. Dave Carner recommended to the Supervisors that Carner Services perform the
necessary repairs.
a. Carner’s recommendation was provided without the solicitation of quotes or
public advertisement.
b. Carner endorsed Kraus’s recommendation that the annual
cleaning/maintenance be completed in conjunction with the corrective action
repairs.
c. The Supervisors agreed to have Carner Services perform the required
corrective action and annual cleaning/maintenance.
d. No other companies or individuals were recommended to perform the
services.
e. Carner made the recommendation with the expectation Carner Services
would be compensated by the Township.
62. Dave Carner arranged the work with Carner Services for the annual
cleaning/maintenance and corrective action repairs.
a. Dave Carner was the Township point-of-contact with Carner Services
throughout the service call.
b. Dave Carner did not discuss or negotiate the cost to perform the work with
Carner Services and/or the Supervisors.
63. Carner Services provided an invoice, dated September 19, 2011, to Dave Carner
for submission to the Township in relation to the corrective action repairs and
maintenance as follows:
Carner, 11-027
Page 13
Material:
(2-$60.00 each) repair kit for boiler $ 120.00
(2-$250.00 each) low water cutoff with reset $ 500.00
(2-$170.00 each) high temp. cut off with reset $ 340.00
(2-$50.00 each) 1 ½ copper T and ¾ reducer $ 100.00
(2-$45.00 each) ¾ well and fittings $ 90.00
(2-$20.00 each) wiring $ 40.00
Total Material Charge $1,190.00
Labor:
Order and get repair kit $ 50.00
Get low water & high temp. control $ 50.00
Remove front plates, put on new kit, replace plates, put on 1 ½ & ¾ fittings, add $1,000.00
controls, wire, and test
Total Labor Charge $1,100.00
Total: $2,290.00
64. Dave Carner reviewed the invoice with the other Members of the Board of
Supervisors contemporaneous to submitting it to the Township Secretary/Treasurer.
a. The review was performed outside of a public meeting.
b. The discussion occurred among the Township Supervisors during normal
working hours.
65. At the September 21, 2011, regular meeting of the Board, Carner reported that
repair/maintenance had been performed on the Township municipal building boilers
as had been required by DLI.
66. At the October 7, 2011, regular meeting, the Board unanimously voted to approve
the payment of expenses documented on the monthly bill list from the Township
General Fund, to include payment to Carner Services in the amount of $2,290.00.
a. Dave Carner was present at the October 7, 2011, regular meeting and
participated in the unanimous vote to approve the expenses.
67. Township check #43327, dated September 22, 2011, was issued to Carner
Services in the amount of $2,290.00.
a. Check #43327 was signed by Supervisors Heidler, Kraus, and Carner and
Secretary/Treasurer Rhoades.
68. During the October 7, 2011, regular meeting, residents questioned the Board in
relation to a possible conflict of interest for Dave Carner in relation to Carner
Services performing work for the Township.
a. Supervisor Kraus responded claiming that the Board agreed to have Carner
Services perform the work required by DLI as a result of C. Carner installing
the system in 2006 and that the initial contractor (Comfort Heating and Air
Conditioning) was no longer in business.
Carner, 11-027
Page 14
69. Following the meeting, Kraus contacted Township Solicitor Paul Burroughs and
informed him of Dave Carner having a possible conflict of interest in relation to
Carner Services performing work for the Township.
a. Burroughs asked Kraus if the work had been budgeted, to which Kraus
replied affirmatively.
b. Burroughs asked if Carner signed the Township payment to Carner Services,
to which Kraus did not answer.
c. Burroughs recommended that the Supervisors be more careful to avoid
possible conflicts of interest and make efforts to be more transparent.
d. Burroughs’ recommendations were provided verbally.
70. Carner generated a letter, dated October 13, 2011, in response to Burroughs’
recommendations, asserting the following:
It has come to my attention that I should have abstained from approving the
payment to Carner Services in the amount of $2,290.00 and I should not have
signed the check, due to a conflict of interest pursuant to Pennsylvania “Public
Official & Employee Ethics Law”
a. The letter was filed at the Township.
b. Carner filed the letter after Kraus informed him of Burroughs’
recommendations.
71. Carner voted to approve the payment of three Township checks and subsequently
signed the check payments to Carner Services covering the time period of February
2009 to the present:
Date Check No. Amount Signatures Meeting of Approval
2-9-09 037996 $ 230.00 DC, BB, PK, BP February 9, 2009
2-4-10 039924 $ 100.00 DC, RH, PK, PR February 8, 2010
9-22-11 043327 $2,290.00 DC, RH, PK, PR October 7, 2011
Total $2,620.00
Initials: BB-Bradley J. Bierer; PK-Peter D. Kraus; DC-David C. Carner; RH-Ralph
Heidler; BP-Barbara Partchey; PR-Pamela Rhoades
72. From February 2009 to the present, the Township issued Carner Services one
payment that reflected work performed in excess of $500.00 as shown below:
Date Check No. Amount Signatures Meeting of Approval
9-22-11 043327 $2,290.00 DC, RH, PK, PR October 7, 2011
73. Dave Carner’s official actions as a Township Supervisor include the following
actions that resulted in work performed by Carner Services in excess of $500.00
that was not publicly advertised and not awarded through an open and public
process:
a. Carner recommended Carner Services to the remaining Supervisors outside
of a public meeting.
b. Carner arranged the work with Carner Services.
Carner, 11-027
Page 15
c. Carner accepted the invoice from Carner Services and later submitted the
invoice to the appropriate Township department for payment after discussing
the invoice with fellow Supervisors.
d. Carner voted affirmatively to approve the payment to Carner Services in
excess of $500.00.
e. Carner signed the Township check payment to Carner Services that was in
excess of $500.00.
74. Based on Carner Services’ material mark-up (46%) and total labor charges, Carner
Services’ profit from income received from the Township during 2011, for payments
in excess of $500.00 totals $1,475.00 as follows:
Charges Total Charged Mark-Up Charge Total
Total Material Charge $1,190.00 $375.00 $ 375.00
Total Labor Charge $1,100.00 n/a $1,100.00
Total: $1,475.00
75. Based on Carner Services’ material mark-up (46%) and total labor charges, Carner
Services’ profit from income received from the Township during 2009 was less than
$500.00.
76. From 2006 to 2011, Carner Services performed approximately three to five service
calls on the Township building’s heating and air conditioning system without
charging the Township.
a. The service calls were arranged by Carner.
b. Documentation of the service calls does not exist.
77. Carner Services does not have a flat service call charge.
a. Carner Services charges an hourly rate of $50.00.
b. The value of service calls provided to the Township at no charge totaled
approximately $250.00.
78. Carner’s use of the authority of his office resulted in a private pecuniary benefit of
$1,225.00 to a business with which his father, Clark Carner, is associated:
Year Amount
2011 $1,475.00
Credit for service calls -$250.00
Total $1,225.00
a. Carner assisted the contractors and the supplier of the Hybrid Temperature
Control System, Standard And [sic] & Lite Corporation, both during and after
Township business hours, without compensation.
1. The total number of hours Carner assisted is non-ascertainable.
THE FOLLOWING FINDINGS RELATE TO CARNER’S FAILURE TO FILE STATEMENT
OF FINANCIAL INTERESTS FORMS FOR CALENDAR YEARS 2007 AND 2008.
Carner, 11-027
Page 16
79. Section 1104(a) of the State Ethics Act sets forth that public officials are to file a
Statement of Financial Interests (hereafter “SFI”) form with the governing authority
st
of the 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. Carner served as a Fairview Township Supervisor from January 2002 to the
present.
80. On November 23, 2011, a Statement of Financial Interests compliance review was
conducted for Fairview Township.
a. Carner had no SFI on file for calendar years 2007 and 2008 in his position
as a Township Supervisor.
81. Carner was aware of the annual filing requirements of the SFIs for Township public
officials.
a. Carner had SFIs on file for calendar years 2006, 2009, and 2010.
b. Carner had SFIs on file with the Township as a Township Parks and
Recreation Board Member for calendar years 2007 and 2008.
1. Carner served on the Fairview Township Parks and Recreation
Authority Board from 1997 to 2002 and 2004 to 2010.
III.DISCUSSION:
As a Supervisor for Fairview Township (“Township”), Erie County, from January
2002 to the present, Respondent Dave Carner (hereinafter also referred to as
“Respondent,” “Respondent Carner,” and “Carner”) 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 Carner violated Sections 1103(a), 1103(f), 1104(a) and
1104(d) 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 participating in discussions and actions
of the Township Board of Supervisors (“Board”) resulting in the hiring of a business owned
by his father to perform services for the Township; (2) when the services performed were in
excess of $500 and awarded without an open and public process; (3) when he participated
in actions of the Board to approve payments issued to a member of his immediate family
and/or a business with which a member of his immediate family is associated; and (4)
when he failed to file Statements of Financial Interests (“SFIs”) for the 2007 and 2008
calendar year.
Per the Consent Agreement, the Investigative Division has exercised its
prosecutorial discretion to nol pros allegation(s) under Section 1103(f) of the Ethics Act.
Based upon the nol pros, we need not address the Section 1103(f) allegation(s) 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
Carner, 11-027
Page 17
employee shall engage in conduct that constitutes a conflict of
interest.
65 Pa.C.S. § 1103(a).
The term "conflict of interest" is defined in the Ethics Act as follows:
§ 1102. Definitions
"Conflict" or "conflict of interest."
Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate family
or a business with which he or a member of his immediate
family is associated. The term does not include an action
having a de minimis economic impact or which affects to the
same degree a class consisting of the general public or a
subclass consisting of an industry, occupation or other group
which includes the public official or public employee, a
member of his immediate family or a business with which he or
a member of his immediate family is associated.
65 Pa.C.S. § 1102.
Section 1103(a) of the Ethics Act prohibits a public official/public employee from
using the authority of public office/employment or confidential information received by
holding such a public position for the private pecuniary benefit of the public official/public
employee himself, any member of his immediate family, or a business with which he or a
member of his immediate family is associated.
Section 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.
Section 1104(d) of the Ethics Act provides that no public official shall be allowed to
take the oath of office, enter or continue upon his duties, or receive compensation from
public funds unless he has filed a Statement of Financial Interests as required by the
Ethics Act.
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 Carner has served as a Township Supervisor from January 2002 to the
present. Respondent served as Chairman of the Board in 2003, 2004, 2009 and 2010.
Respondent served as Vice Chairman of the Board in 2002, 2007 and 2008. The Board
consists of three Members.
The Township Secretary/Treasurer and all Board Members have signature authority
over Township accounts. Checks require the signatures of any combination of two
Supervisors and the Secretary/Treasurer.
The Township Supervisors have traditionally appointed themselves as full-time
working Roadmasters/Supervisors at the annual re-organization meeting. Respondent has
served as a Township Roadmaster/working Supervisor from January 2002 to the present.
Carner, 11-027
Page 18
Since as early as 2002, Township Supervisors began initial planning for
renovations/additions to the Township municipal building. Respondent served as the
Township’s point-of-contact with the project contractors and architect.
Respondent’s father, Clark Carner (“C. Carner”), owns and operates a business
named “Carner Services.” Carner Services specializes in boiler systems, temperature
control panels, and hydraulic pump filters.
In April 2006 Carner Services performed 6 hours of labor on the old Township
building’s heat/water system in preparation for the building’s demolition. Respondent
recommended to the Supervisors that Carner Services perform the work. Respondent’s
recommendation was provided without the solicitation of quotes or public advertisement
and during a discussion that occurred outside of a public meeting. Respondent made the
recommendation with the expectation Carner Services would be compensated by the
Township. The remaining Supervisors agreed with Respondent’s recommendation.
Respondent arranged with Carner Services for completion of the work. Respondent
was the Township point-of-contact with Carner Services throughout the service performed.
Respondent did not discuss or negotiate the cost to perform the work with Carner Services
and/or the Supervisors.
Carner Services submitted to the Township an invoice dated May 1, 2006, in the
amount of $300.00 for the aforesaid work. Respondent reviewed the invoice at or about
the time it was submitted. At the June 21, 2006, regular meeting, Respondent participated
in the Board’s unanimous vote to approve the payment of expenses documented on the
monthly bill list, which included payment to Carner Services for the invoice. Respondent
was one of the authorized Township signatories who signed Township check number
32823 issued to Carner Services for the aforesaid work.
In 2006/2007, the foreman/manager of the HVAC contractor arranged to have
Carner Services assist in the installation of the new Township building’s HVAC’s boiler
system/temperature control panel. Respondent assisted Carner Services with the
installation during his Township working hours and after hours. Respondent received his
regular working Supervisor wages while assisting with the work. The foreman/manager of
the HVAC contractor compensated Carner Services “out-of-pocket” for the work.
The construction of the Township municipal building was completed by May 2007.
Respondent was generally responsible for the maintenance/repairs of the new Township
municipal building.
At the January 21, 2009, regular meeting, the Board discussed issues relating to the
new Township building’s heating and air conditioning system. On or about February 2,
2009, Respondent discussed with the other Supervisors the work that was needed on the
heating and air conditioning system. The discussion occurred outside of a public meeting
during the Supervisors’ normal working hours. Respondent recommended to the
Supervisors that Carner Services perform the work on the Township building’s heating and
air conditioning system. Respondent’s recommendation was provided without the
solicitation of quotes or public advertisement. The remaining Supervisors agreed with
Respondent’s recommendation. Respondent made the recommendation with the
expectation that Carner Services would be compensated by the Township.
Respondent did not discuss or negotiate the cost to perform the work with Carner
Services and/or the Supervisors. Respondent arranged for the completion of the work with
Carner Services. Respondent was the Township’s point-of-contact with Carner Services
for the services provided.
Carner, 11-027
Page 19
On or about February 3, 2009, Carner Services submitted an invoice to the
Township in the amount of $230.00 for services rendered on the municipal building’s
temperature control panel on February 2, 2009. Of the total amount charged, $30.00 was
for material and $200.00 was for labor. Respondent reviewed the invoice at or about the
time it was submitted.
At the February 9, 2009, regular meeting, the Board unanimously voted to approve
payment of expenses documented on the monthly bill list, including payment to Carner
Services in the amount of $230.00. Respondent participated in the Board’s unanimous
vote to approve the expenses. Respondent was one of the authorized Township
signatories who signed Township check number 37996 issued to Carner Services for the
aforesaid work.
On or about January 19, 2010, Respondent discussed with the other Supervisors
the need to replace the main circulator pump for the new Township building’s heating
system. The discussion was conducted outside of a public meeting during the
Supervisors’ normal working hours. The HVAC contractor which had previously serviced
the pump was no longer in business in 2010. Respondent recommended to the
Supervisors that Carner Services perform the work. Respondent’s recommendation was
provided without the solicitation of quotes or public advertisement. The remaining
Supervisors agreed with Respondent’s recommendation. Respondent made the
recommendation with the expectation Carner Services would be compensated by the
Township. Respondent authorized Carner Services to replace the pump. Respondent was
the Township’s point-of-contact with Carner Services throughout the service performed.
Respondent did not discuss or negotiate the cost for the work with Carner Services
and/or the Supervisors. Respondent purchased material/parts for the work.
On or about January 19, 2010, Carner Services submitted an invoice to the
Township in the amount of $100.00 for labor to remove the faulty pump and install a new
pump. Respondent reviewed the invoice at or about the time it was submitted.
At the February 8, 2010, regular meeting, the Board unanimously voted to approve
the payment of expenses documented on the monthly bill list, including payment to Carner
Services in the amount of $100.00. Respondent participated in the Board’s unanimous
vote to approve the expenses. Respondent was one of the authorized Township
signatories who signed Township check number 39924 issued to Carner Services for the
aforesaid work.
In early 2011 Respondent participated in discussion with the remaining Supervisors
regarding routine cleaning/maintenance of the boilers in the Township municipal building.
The discussion was conducted outside of a public meeting during the Supervisors’ normal
working hours. Supervisor Peter Kraus (“Kraus”) introduced the idea of having the routine
maintenance performed, and he also recommended that Carner Services do the work. The
Supervisors agreed to have Carner Services do the work. Respondent supported having
Carner Services perform the work. Respondent contacted Carner Services to arrange the
work. However, Carner Services was not available to perform the maintenance due to
scheduling conflicts.
On or about July 7, 2011, a required inspection of the Township municipal building
boilers identified deficiencies that the Township was required by law to correct. On or
about September 19, 2011, Respondent discussed with the other Supervisors the
deficiencies and required corrective action for the Township municipal building boiler
system. The discussion occurred outside of a public meeting during the Supervisors’
normal working hours. Respondent recommended to the Supervisors that Carner Services
perform the necessary repairs. Respondent’s recommendation was provided without the
solicitation of quotes or public advertisement. Respondent made the recommendation with
Carner, 11-027
Page 20
the expectation Carner Services would be compensated by the Township. Respondent
endorsed Kraus’s recommendation that the annual cleaning/maintenance be completed in
conjunction with the corrective action repairs. The Supervisors agreed to have Carner
Services perform the required corrective action and annual cleaning/maintenance.
Respondent arranged the work with Carner Services for the annual
cleaning/maintenance and corrective action repairs. Respondent was the Township point-
of-contact with Carner Services throughout the service call. Respondent did not discuss or
negotiate the cost to perform the work with Carner Services and/or the Supervisors.
Carner Services provided to Respondent for submission to the Township an invoice
dated September 19, 2011, in the total amount of $2,290.00 for the aforesaid corrective
action repairs and maintenance. Of the total amount, $1,190.00 was for materials and
$1,100.00 was for labor. Respondent reviewed the invoice with the other Supervisors
contemporaneous to submitting it to the Township Secretary/Treasurer. The review was
performed outside of a public meeting during the Supervisors’ normal working hours.
At the September 21, 2011, regular meeting of the Board, Respondent reported that
the required repair/maintenance had been performed on the Township municipal building
boilers. At the October 7, 2011, regular meeting, the Board unanimously voted to approve
the payment of expenses documented on the monthly bill list, including payment to Carner
Services in the amount of $2,290.00. Respondent participated in the Board’s unanimous
vote to approve the expenses. Respondent was one of the authorized Township
signatories who signed Township check number 43327 issued to Carner Services for the
aforesaid work.
Carner Services’ profit from the 2011 boiler annual cleaning/maintenance and
corrective action repairs totaled $1,475.00. Fact Findings 63, 74.
The parties have stipulated that Respondent’s use of the authority of his office
resulted in a private pecuniary benefit of $1,225.00 to a business with which his father, C.
Carner, is associated. Fact Finding 78. The parties have calculated such benefit by
subtracting the value of free service calls Carner Services provided to the Township
($250.00) from the $1,475.00 profit Carner Services received from the Township during
2011.
In October 2011, after residents questioned the Board regarding a possible conflict
of interest for Respondent in relation to Carner Services performing work for the Township,
Respondent generated a letter dated October 13, 2011, which was filed with the Township,
stating the following:
It has come to my attention that I should have abstained from approving the
payment to Carner Services in the amount of $2,290.00 and I should not have
signed the check, due to a conflict of interest pursuant to Pennsylvania “Public
Official & Employee Ethics Law”
Fact Finding 70.
As for Respondent’s SFIs, on November 23, 2011, an SFI compliance review of the
Township was conducted. Respondent had no SFI on file with the Township for calendar
years 2007 and 2008 in his position as a Township Supervisor. Respondent had SFIs on
file with the Township as a Township Parks and Recreation Board Member for calendar
years 2007 and 2008.
Having highlighted the Stipulated Findings and issues before us, we shall now apply
the Ethics Act to determine the proper disposition of this case.
Carner, 11-027
Page 21
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 Carner’s participation in discussions
and actions of the Board of Supervisors
which resulted in the Township hiring
“Carner Services” a business owned by
Carner’s father, to perform services for
the Township; and when Carner
participated in actions of the Board of
Supervisors to approve payments issued
to “Carner Services.”
b. As part of a negotiated consent
agreement, the allegations concerning a
violation of 65 Pa.C.S. §1103(f) are
hereby nolle prossed.
c. Carner neglected to file Statements of
Financial Interests for years 2007 and
2008 as a Township Supervisor. Carner
did file a 2007 and 2008 Statement of
Financial Interests as a member of the
Township Parks and Recreations Board,
and listed “Township Supervisor” and
“Supervisor – Fairview Township” for the
above noted years, which constituted
substantial compliance with the Ethics Act
such that the requirements of Section
1105(b)(5) could be facially obtained from
the information provided on the form as a
whole, such that it is appropriate to permit
an amendment to the form, as permitted
by the Court in In re Benninghoff, 852
A.2d 1182 (Pa. 2004).
4. Carner agrees to make payment in the amount of $1,225.00 in
settlement of this matter payable to Fairview Township and
forwarded to the Pennsylvania State Ethics Commission within
thirty (30) days of the issuance of the final adjudication in this
matter.
5. Carner agrees to file complete and accurate Statements of
Financial Interests with Fairview Township, through the
Pennsylvania State Ethics Commission, for 2007 and 2008
calendar years within thirty (30) days of the issuance of the
final adjudication in this matter.
6. Carner agrees to not accept any reimbursement,
compensation or other payment from Fairview Township
Carner, 11-027
Page 22
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 1-2.
In considering the Consent Agreement, we agree with the parties that a violation of
Section 1103(a) of the Ethics Act occurred in relation to Respondent’s participation in
discussions and actions of the Board which resulted in the Township hiring Carner
Services, a business owned by Respondent’s father, to perform services for the Township;
and when Respondent participated in actions of the Board to approve payments issued to
Carner Services.
During the time period under review, Respondent repeatedly used the authority of
his public position as a Township Supervisor to steer Township work to his father’s
business, Carner Services. The specific jobs that Carner Services performed for the
Township at Township expense were as follows:
In April 2006 Carner Services performed 6 hours of labor on the old Township
building’s heat/water system in preparation for the building’s demolition, at a cost to
the Township of $300.00;
On or about February 2, 2009, Carner Services performed services involving the
municipal building’s temperature control panel, at a cost to the Township of $230.00
($30.00 for material and $200.00 for labor);
On or about January 19, 2010, Carner Services removed a faulty pump and
installed a new pump at a cost to the Township of $100.00 for labor; and
On or about September 19, 2011, Carner Services performed boiler annual
cleaning/maintenance and corrective action repairs required by law, at a cost to the
Township of $2,290.00 ($1,190.00 for materials and $1,100.00 for labor).
As to each of the first three jobs listed above, Respondent’s official actions as a
Township Supervisor included: (1) recommending Carner Services to the remaining
Supervisors outside of a public meeting; (2) arranging such work with Carner Services; (3)
voting affirmatively to approve payment to Carner Services; and (4) signing as an
authorized Township signatory the Township check issued as payment to Carner Services.
As to the 2011 boiler annual cleaning/maintenance and corrective action repairs,
Respondent’s official actions as a Township Supervisor included: (1) recommending/
endorsing a recommendation to use Carner Services for the work outside of a public
meeting; (2) arranging the work with Carner Services; (3) accepting the invoice from
Carner Services; (4) discussing the invoice with fellow Supervisors; (5) submitting the
invoice to the Township Secretary/Treasurer; (6) voting affirmatively to approve the
payment to Carner Services; and (7) signing as an authorized Township signatory the
Township check issued as payment to Carner Services. Carner Services’ profit from the
2011 boiler annual cleaning/maintenance and corrective action repairs totaled $1,475.00.
Carner, 11-027
Page 23
Of the aforesaid work that was provided to the Township by Carner Services, only
the 2011 boiler annual cleaning/maintenance and corrective action repairs resulted in
payment by the Township of more than $500.00.
The parties have stipulated that Respondent’s use of the authority of his office
resulted in a private pecuniary benefit of $1,225.00 to a business with which his father, C.
Carner, is associated. Fact Finding 78. The parties have calculated such benefit by
subtracting the value of free service calls Carner Services provided to the Township
($250.00) from the $1,475.00 profit Carner Services received from the Township during
2011.
With each element of a violation of Section 1103(a) established, we hold that a
violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to
Respondent’s participation in discussions and actions of the Board which resulted in the
Township hiring Carner Services, a business owned by Respondent’s father, to perform
services for the Township; and when Respondent participated in actions of the Board to
approve payments issued to Carner Services. Cf., Gallen, Order 1198.
As for the allegations regarding Respondent’s SFIs, per the Consent Agreement,
Respondent neglected to file SFIs for calendar years 2007 and 2008 as a Township
Supervisor. However, Respondent did file SFI(s) for calendar years 2007 and 2008 as a
Member of the Township Parks and Recreation Board, listing “Township Supervisor” and
“Supervisor – Fairview Township” for those years. The parties have agreed the aforesaid
filing(s) constituted substantial compliance with the Ethics Act such that it is appropriate to
permit amendment, as per in In re Benninghoff, 578 Pa. 402, 852 A.2d 1182 (2004).
We accept the recommendation of the parties and hold that Respondent’s SFI(s) for
calendar years 2007 and 2008, which were filed as a Member of the Township Parks and
Recreation Board and listed “Township Supervisor” and “Supervisor – Fairview Township,”
constituted substantial compliance with the Ethics Act such that it is appropriate to permit
amendment as per in In re Benninghoff, 578 Pa. 402, 852 A.2d 1182 (2004).
As part of the Consent Agreement, Respondent has agreed to make payment in the
amount of $1,225.00 in settlement of this matter payable to Fairview 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 not accept any reimbursement, compensation or
other payment from the Township representing a full or partial reimbursement of the
amount paid in settlement of this matter.
Respondent has agreed to file complete and accurate SFIs for the 2007 and 2008
calendar years with the Township, through this Commission, 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, Respondent Carner is
directed to make payment in the amount of $1,225.00 payable to Fairview Township and
th
forwarded to this Commission by no later than the thirtieth (30) day after the mailing date
of this adjudication and Order.
Carner, 11-027
Page 24
Per the Consent Agreement of the parties, Respondent Carner is directed to not
accept any reimbursement, compensation or other payment from the Township
representing a full or partial reimbursement of the amount paid in settlement of this matter.
To the extent he has not already done so, Respondent Carner is directed to file
complete and accurate SFIs for calendar years 2007 and 2008 with the Township through
th
this Commission by no later than the thirtieth (30) day after the mailing date of this
adjudication and Order.
Compliance with the foregoing will result in the closing of this case with no further
action by this Commission. Noncompliance will result in the institution of an order
enforcement action.
IV.CONCLUSIONS OF LAW:
1. As a Supervisor for Fairview Township (“Township”), Erie County, from January
2002 to the present, Respondent Dave Carner (“Carner”) 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. Carner violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), in relation
to his participation in discussions and actions of the Township Board of Supervisors
which resulted in the Township hiring “Carner Services,” a business owned by
Carner’s father, to perform services for the Township; and when Carner participated
in actions of the Board of Supervisors to approve payments issued to “Carner
Services.”
3. Respondent’s Statement(s) of Financial Interests for calendar years 2007 and 2008,
which were filed as a Member of the Township Parks and Recreation Board and
listed “Township Supervisor” and “Supervisor – Fairview Township,” constituted
substantial compliance with the Ethics Act such that it is appropriate to permit
amendment as per in In re Benninghoff, 578 Pa. 402, 852 A.2d 1182 (2004).
In Re: Dave Carner, : File Docket: 11-027
Respondent : Date Decided: 9/24/12
: Date Mailed: 10/9/12
ORDER NO. 1607
1. As a Supervisor for Fairview Township (“Township”), Erie County, Dave Carner
(“Carner”) 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 in discussions
and actions of the Township Board of Supervisors which resulted in the Township
hiring “Carner Services,” a business owned by Carner’s father, to perform services
for the Township; and when Carner participated in actions of the Board of
Supervisors to approve payments issued to “Carner Services.”
2. Respondent’s Statement(s) of Financial Interests for calendar years 2007 and 2008,
which were filed as a Member of the Township Parks and Recreation Board and
listed “Township Supervisor” and “Supervisor – Fairview Township,” constituted
substantial compliance with the Ethics Act such that it is appropriate to permit
amendment as per in In re Benninghoff, 578 Pa. 402, 852 A.2d 1182 (2004).
3. Per the Consent Agreement of the parties, Carner is directed to make payment in
the amount of $1,225.00 payable to Fairview 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, Carner is directed to not accept any
reimbursement, compensation or other payment from the Township representing a
full or partial reimbursement of the amount paid in settlement of this matter.
5. To the extent he has not already done so, Carner is directed to file complete and
accurate Statements of Financial Interests for calendar years 2007 and 2008 with
the Township through the Pennsylvania State Ethics Commission by no later than
th
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,
___________________________
John J. Bolger, Chair