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HomeMy WebLinkAbout1631 Harvanek In Re: Brian Harvanek, : File Docket: 13-009 Respondent : X-ref: Order No. 1631 : Date Decided: 2/6/14 : Date Mailed: 2/18/14 Before: John J. Bolger, Chair Nicholas A. Colafella, Vice Chair Raquel K. Bergen Mark R. Corrigan Roger Nick Kathryn Streeter Lewis 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 Brian Harvanek, a public official/public employee in his capacity as a Member of Cheswick Borough Council, Allegheny County, violated [Sections 1103(a), 1103(f), 1104(a), and 1105(b)] of the State Ethics Act (Act 93 of 1998), when a business with which he is associated, All Time Truck and Car Service, entered into contracts with the Borough in excess of $500.00 without an open and public process; when he used the authority of his public office by participating in official actions of Borough Council, namely voting to approve payment of invoices from All Time Truck and Car Service, a business with which he is associated; and when he failed to file Statements of Financial Interests for the 2009 and 2010 calendar years, filed deficient Statements of Financial Interests for the 2011 and 2012 calendar years by failing to disclose his ownership/financial interests in All Time Truck and Car Service, and failed to disclose All Time Truck and Car Service as a source of income for calendar year 2012. II.FINDINGS: 1. Brian Harvanek has served as an elected Council Member for Cheswick Borough, Allegheny County, from January 19, 2010, to the present. a. Harvanek previously served as an appointed Member of Cheswick Borough (hereafter, “Borough”) Council from February 2006 through December 2007. 2. A seven-Member Council governs the Borough. Harvanek, 13-009 Page 2 a. Council holds one regularly scheduled meeting per month on the third Tuesday of the month. 1. Council does not hold non-legislative/workshop meetings. b. Special meetings are held as necessary. 3. Voting at Council meetings occurs in a group aye/nay voice vote fashion after a motion is made and seconded. a. All objections and/or abstentions cast are noted in the minutes. 1. Council does not utilize abstention forms to memorialize abstentions cast. 2. Council Members do not routinely identify the reason(s) for any abstention they have cast. 4. Minutes of the Borough Council meetings are generated by Andy Bock, Borough Secretary. a. Audio records are utilized to assist with the generation of the meeting minutes. b. Council did not approve the minutes of legislative/special meetings for accuracy prior to August 2012. 5. Council has been provided with a meeting packet for review on the Friday before a scheduled legislative meeting since at least 2011. a. Information contained within the meeting packet includes: correspondence, bill lists, etc. b. Prior to 2011 meeting packet information was supplied to Council on the night of the legislative meeting. 6. Council votes to approve the bill lists presented at each legislative meeting. a. Bill lists document all of the bills received by the Borough for payment since the last legislative meeting. 1. Bill lists document check payee, check amount, etc. b. Bills (excluding utilities) documented on the bill lists are not paid until Council votes to approve the bill lists. 1. Utilities are paid upon receipt as a normal recurring expense. 7. Signature authority over the Borough financial accounts is vested with the Council President, Vice President, Treasurer, and Secretary. a. Borough checks require the signatures of at least any two of the four authorized signatories. b. Harvanek has never maintained signature authority over the Borough financial accounts. Harvanek, 13-009 Page 3 8. All Time Truck and Car Service (hereafter, “All Time”) is a business that provides vehicle maintenance services. a. All Time was established/created to do business within the Commonwealth on or about June 5, 1978. b. A fictitious name application for All Time was filed with the Department of State on or about June 5, 1978. 1. All Time was formally registered with the Department of State as a business within the Commonwealth on or about June 5, 1978. c. All Time has been located within the geographical boundaries of Cheswick Borough since its establishment. 1. All Time is located at 1800 Pittsburgh Street, Cheswick, PA 15024. d. All Time is currently an active business within the Commonwealth. 9. Brian Harvanek has been affiliated with All Time since approximately 1978. a. Harvanek has been the sole owner of All Time since approximately 1980. b. The business operated as a partnership between Harvanek and Harvanek’s cousin from approximately 1978 to 1980. 10. Harvanek, in his capacity as owner, is responsible for performing the following duties and responsibilities: a. Diagnosing vehicle problems; b. Approving bids/quotes generated for potential customers; c. Repairing vehicles; d. Approving charges/bills generated for services provided; and e. Accepting and depositing payments issued for services provided. 11. The Borough Secretary and the Police Chief maintain oversight responsibility for the day-to-day operations of the Borough. a. The Borough Secretary is responsible for overseeing the day-to-day operations of the Public Works Department which includes ensuring that the Public Works vehicles are operational. b. The Police Chief is responsible for overseeing the day-to-day operations of the Police Department which includes ensuring that the Police vehicles are operational. 12. The Borough Secretary and the Police Chief have the autonomy to select where the Borough vehicles under their responsibility are maintained without consulting with Council. Harvanek, 13-009 Page 4 a. Council approves the selection of a vendor for Borough vehicle repairs/maintenance only if quotes and/or sealed bids are obtained through an open and public process. 13. From 2010 to the present, Council did not obtain/review quotes and/or sealed bids related to Borough vehicle maintenance. 14. The Borough has maintained a business relationship with All Time since at least 1997, which predates Harvanek’s service as a Member of Council. a. The Borough frequently utilized All Time to provide vehicle maintenance services for the Public Works Department and the Police Department since at least 1997. b. Services in excess of $500.00 were not publicly bid. 15. Since at least 2003, All Time was the sole vendor utilized by the Borough for vehicle repair services. Borough officials cited the following reasons: a. Council, the Borough Secretary, and the Police Chief developed a comfort level with the business. 1. Harvanek was not a Council Member at the time this decision was made. b. The work performed by All Time was expedient and satisfactory. c. Council, the Borough Secretary, and the Police Chief believed the charges to the Borough for work performed to be reasonable. d. The business is located within the geographical boundaries of the Borough. 16. The Borough continued to utilize All Time for vehicle maintenance services after Harvanek was elected to Council in November 2009. a. All Time has provided various vehicle maintenance services to the Borough on multiple occasions while Harvanek has served as a Borough Council Member. 17. Between 2010, when Harvanek began service as a Borough Council Member, and 2013, none of the vehicle maintenance services performed by All Time for the Borough in excess of $500.00 were publicly advertised for bid. a. Decisions to utilize All Time were made by the Chief of Police or Borough Secretary. b. The Borough Secretary and the Police Chief are the Borough representatives who are responsible for selecting where the Borough vehicles under their responsibility are maintained. 1. The Borough Secretary and the Police Chief have the autonomy/authority to select where the Borough vehicles under their responsibility are maintained without consulting with Council (including Harvanek). Harvanek, 13-009 Page 5 2. Harvanek never directed the Borough Secretary or the Police Chief to utilize All Time nor did Harvanek solicit Borough business from the Borough Secretary or Police Chief to utilize All Time. c. Since 2010 when Harvanek began serving on Council, the Borough Secretary and the Police Chief never consulted/discussed with Council (including Harvanek) their decision to utilize All Time. 18. In or about 2011, then Council President Frank Meledandri discussed with Borough Solicitor Anthony Colangelo a potential conflict of interest situation relating to Harvanek voting to approve bill lists which included payments to All Time. a. Meledandri requested that Colangelo determine whether or not Harvanek’s official actions were a conflict of interest. 19. Colangelo subsequently advised Harvanek to abstain from the approval of future bill lists that documented payment to All Time to alleviate any potential conflict of interest. a. Colangelo did not advise Harvanek to take any retroactive actions regarding Harvanek’s previous actions of approving the bill lists that identified payment to All Time. b. Colangelo did not provide any advice related to Council going through a public bidding process if services to be performed by All Time were to exceed $500.00. 20. From November 2009 through June 2013, All Time submitted one-hundred and eight (108) invoices to the Borough seeking payment totaling $52,097.66 for services rendered. a. Of the one-hundred eight (108) invoices submitted to the Borough by All Time, twenty-six (26) were in excess of $500.00. b. None of the twenty-six (26) services [rendered] in excess of $500.00 were advertised via a public bid. 1. All Time invoices dated November 19, 2009, December 7, 2009, and December 18, 2009, in excess of $500.00, were for work performed prior to Harvanek assuming a seat on Council. 2. No quotes were obtained for any of the services provided by All Time in excess of $500.00. 21. In four (4) instances, services rendered [by All Time in excess of $500.00] were piecemealed and submitted to the Borough via ten separate invoices each under $500.00. a. The four (4) services occurred [sic] on December 19, 2012, January 2, 2013, January 8, 2013, and June 3, 2013, and included the following: [sic] b. Harvanek was instructed by the Borough Solicitor to piecemeal services provided that exceeded $500.00 in order to suffice [sic] the requirements of the Ethics Act. c. The services outlined above were billed in a piecemeal manner following the Solicitor’s advice. Harvanek, 13-009 Page 6 22. Harvanek voted on twenty-five (25) occasions to approve bill lists which contained seventy-one (71) of the one-hundred eight (108) All Time invoices submitted to the Borough for payment. a. Harvanek’s votes resulted in payments totaling $37,499.92 to All Time for services rendered. 1. Harvanek voted to approve invoices dated December 9, 2009, and December 18, 2009, totaling $2,283.94, which were for services provided by All Time prior to Harvanek taking office. 2. The total of invoices approved by Harvanek [for services provided by All Time] after he took office was $35,215.98. b. Harvanek was absent from two (2) meetings at which $3,115.59 in payments were made to All Time. c. Harvanek abstained from [approving] thirteen (13) bill lists that included $11,482.15 in payments to All Time. d. Harvanek did not vote to approve a bill list after November 20, 2012. 23. Borough payments were issued to All Time from the Borough’s PNC General Fund, the Borough’s PNC Water Fund, or a PLGIT Fund. a. Fifty-three Borough checks totaling $52,097.66 were issued to All Time from December 2009 into August 2013. b. Harvanek abstained from approving all bill lists in 2013 for meetings he attended. 1. Harvanek was absent from four (4) meetings. 24. Harvanek deposited the Borough checks received by All Time since 2010 into an All Time bank account maintained at First Commonwealth Bank. a. Harvanek, his wife, Melissa M. Harvanek, and his son, Brian M. Harvanek, have signature authority over the bank account for All Time. 25. Harvanek’s abstention at the September 12, 2012, meeting to approve the bill list prompted questions from the audience. a. Borough resident Marie DeSantis inquired, “When Brian abstains from voting on the bill list, is that because he owns a business?” b. Harvanek is recorded in the minutes as responding, “Yes, because All Time is on the bill list.” c. Borough Councilwoman Vickie Roolf explained that as long as Harvanek abstains from the bill lists (that indicate payment to Harvanek’s business) it is not a conflict of interest. 26. Harvanek was interviewed by State Ethics Commission Investigators on November 14, 2013, during which he averred in part: Harvanek, 13-009 Page 7 a. Council was not provided draft meeting minutes to approve prior to approximately November 2012, and during said time meeting minutes were not approved for accuracy. b. He was not always able to voice his abstention when it came time to approve/disapprove the bill list due to the fact that the vote was taken in a rapid fashion. 1. Harvanek nodded or looked at the Borough Secretary, Andy Bock, to indicate that Bock should note Harvanek as abstaining even though he did not have the opportunity to voice it. 2. Harvanek occasionally telephoned Bock to ensure that when Bock drafted the minutes he noted Harvanek as abstaining during those instances that he did not have the opportunity to voice an abstention. c. Harvanek asked the Borough Solicitor, Anthony Colangelo, if what he was doing was legally appropriate/ethical after questions were raised at the September 18, 2012, Council meeting. 1. Colangelo informed Harvanek that as long as he submitted All Time invoices under $500.00 to the Borough for payment that he would avoid any ethical concerns. 2. He explained that after receiving said advice from Colangelo, he began submitting multiple invoices on the same date to avoid sending a single invoice to the Borough for payment in excess of $500.00. d. Harvanek indicated that Council never publicly bid auto repairs in excess of $500.00 that All Time completed. e. Harvanek claimed no knowledge of the provisions of Section 1103(f) of the Ethics Act until meeting with State Ethics Commission Investigators on November 14, 2013, and discussing the allegations levied against him. f. Borough vehicles were dropped off at All Time, at times without any prior warning, for repairs at the direction of the Borough Police Chief or the Borough Secretary. g. Council played no role where the Borough vehicles were taken for repairs, and such decisions were made by the Borough Police Chief or the Borough Secretary. h. Harvanek occasionally failed to voice an abstention when it came time to approve/disapprove the bill lists and remained silent. 1. Harvanek’s failure to vote was recorded as an “aye” vote in the minutes. 27. All Time realized a profit as a result of providing services to the Borough that were approved by Harvanek. a. The percentage of profit realized by All Time for services rendered to the Borough was equivalent to or less than the percentage of profit made from private/non-Borough customers. Harvanek, 13-009 Page 8 THE FOLLOWING FINDINGS RELATE TO HARVANEK’S FAILURE TO FILE STATEMENT OF FINANCIAL INTERESTS FORMS FOR CALENDAR YEARS 2009 AND 2010 AND DISCREPANCIES ON HARVANEK’S STATEMENT OF FINANCIAL INTERESTS FORMS FOR CALENDAR YEARS 2011 AND 2012. 28. Harvanek, in his official capacity as a Council Member for Cheswick Borough, is required to file a Statement of Financial Interests form by May 1 annually containing information for the prior calendar year. a. Cheswick Borough Council Members have annually been provided with blank Statement of Financial Interests forms from the State Ethics Commission to complete and file with the Borough. 29. Statement of Financial Interests forms on file with the Borough as of May 7, 2013, included the following filings for Harvanek: a. SFI for Calendar Year: 2008 (Candidate Form) Date: 2-19-09 on SEC 01/09 Public Office: Council Political Subdivision: Blank Occupation: Business Owner Year: 2008 Real Estate: None Creditors: Blank Direct/Indirect Income: Blank Gifts: None Transportation: None Employment in any Business: None Financial Interest in Business for Profit: None Business Interests Transferred to Family: None b. No Statement of Financial Interests filed for calendar year 2009. c. No Statement of Financial Interests filed for calendar year 2010. d. SFI for Calendar Year: 2011 Date: 4-8-2012 on SEC 01/12 Public Office: Councilman Political Subdivision: Cheswick Borough Occupation: Self Year: 2012 Real Estate: None Creditors: None Direct/Indirect Income: All Time Truck & Car Service 1800 Pittsburgh St., Cheswick, PA 15024 Gifts: None Transportation: None Employment in any Business: None Financial Interest in Business for Profit: None Business Interests Transferred to Family: None e. SFI for Calendar Year: 2012 Date: 3-11-13 on SEC 01/12 Public Office: Council Political Subdivision: Blank Occupation: Self Employed Year: 2012 Harvanek, 13-009 Page 9 Real Estate: None Creditors: None Direct/Indirect Income: None Gifts: None Transportation: None Employment in any Business: None Financial Interest in Business for Profit: None Business Interests Transferred to Family: None 30. Harvanek failed to file Statements of Financial Interests for calendar years 2009 and 2010. a. Section 1104(d) of the State Ethics Act provides that no public official may receive compensation from public funds unless he has filed a statement of financial interests. b. Harvanek’s IRS W-2 issued by the Borough documents Harvanek’s receipt of public funds in the amount of $1,200.00 (gross) as a Council Member for calendar year 2010. c. Harvanek’s IRS W-2 issued by the Borough documents Harvanek’s receipt of public funds in the amount of $1,200.00 (gross) as a Council Member for calendar year 2011. 31. Harvanek failed to disclose his [sole ownership] of All Time/financial interest in All Time on his Statements of Financial Interests for calendar years 2011 and 2012. a. Harvanek further [sic] failed to disclose his financial interest in All Time on his Statements of Financial Interests for calendar years 2011 and 2012. 32. Harvanek, and/or a business with which he is associated, namely All Time Truck and Car Service, realized a financial gain when he utilized his position as a Council Member for Cheswick Borough to participate in actions of Council resulting in payments being issued to All Time, a business with which he is associated, for providing services for Cheswick Borough. a. Some of the services provided by All Time in excess of $500.00 were not awarded through an open and public bidding process. b. Harvanek failed to file Statements of Financial Interests for the 2009 and 2010 calendar years. c. Harvanek filed deficient Statements of Financial Interests for the 2011 and 2012 calendar years by failing to disclose his ownership/financial interests in All Time Truck and Car Service, and failed to disclose All Time Truck and Car Service as a source of income for calendar year 2012. III.DISCUSSION: As a Council Member for Cheswick Borough (“Borough”), Allegheny County, from January 19, 2010, until the present, Respondent Brian Harvanek, also referred to hereinafter as “Respondent,” “Respondent Harvanek,” and “Harvanek,” has been a public official subject to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. The allegations are that Harvanekviolated Sections 1103(a), 1103(f), 1104(a), and 1105(b) of the Ethics Act: (1) when a business with which he is associated, All Time Truck Harvanek, 13-009 Page 10 and Car Service, entered into contracts with the Borough in excess of $500.00 without an open and public process; (2) when he used the authority of his public office by participating in official actions of Borough Council, namely voting to approve payment of invoices from All Time Truck and Car Service, a business with which he is associated; and (3) when he failed to file Statements of Financial Interests (“SFIs”) for the 2009 and 2010 calendar years, filed deficient SFIs for the 2011 and 2012 calendar years by failing to disclose his ownership/financial interests in All Time Truck and Car Service, and failed to disclose All Time Truck and Car Service as a source of income for calendar year 2012. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from engaging in conduct that constitutes a conflict of interest: § 1103. Restricted activities (a)Conflict of interest.— No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The term "conflict of interest" is defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act prohibits a public official/public employee from using the authority of public office/employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Section 1103(f) of the Ethics Act imposes certain restrictions as to contracting: § 1103. Restricted activities (f)Contract.— No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with Harvanek, 13-009 Page 11 which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. § 1103(f). Section 1103(f) of the Ethics Act provides in part that no public official/public employee or his spouse or child or business with which the public official/public employee or his spouse or child is associated may enter into a contract with his governmental body valued at five hundred dollars or more or any subcontract valued at five hundred dollars or more with any person who has been awarded a contract with the governmental body with which the public official/public employee is associated unless the contract is awarded through an open and public process including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. Section 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 1105(b) of the Ethics Act and its subsections detail the financial disclosure that a person required to file the Statement of Financial Interests 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 Statement of Financial Interests the name and address of any direct or indirect source of income totaling in the aggregate $1,300 or more. Section 1105(b)(9) of the Ethics Act requires the filer to disclose on the Statement of Financial Interests 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. The Borough is governed by a seven-Member Council. Harvanek has served as a Member of Borough Council from January 19, 2010, to the present. A business named “All Time Truck and Car Service” (“All Time”) provides vehicle maintenance services and is located within the Borough boundaries. Harvanek has been the sole owner of All Time since approximately 1980. In his capacity as the owner of All Time, Harvanek is responsible for diagnosing and repairing vehicle problems, approving bids/quotes generated for potential customers, approving charges/bills generated for services provided, and accepting and depositing payments issued for services provided. Harvanek, 13-009 Page 12 The Borough Secretary is responsible for overseeing the day-to-day operations of the Public Works Department, which includes ensuring that the Public Works Department vehicles are operational. The Borough Police Chief is responsible for overseeing the day- to-day operations of the Police Department, which includes ensuring that the Police Department vehicles are operational. The Borough Secretary and the Borough Police Chief have the autonomy to select where the Borough vehicles under their responsibility are maintained without consulting with Borough Council. Since at least 1997, the Borough utilized All Time to provide vehicle maintenance services for the Public Works Department and the Police Department. Services in excess of $500.00 were not publicly bid. Since at least 2003, All Time was the sole vendor utilized by the Borough for vehicle repair services because: (1) All Time is located within the Borough; (2) All Time performed expedient and satisfactory work; and (3) Borough Council, the Borough Secretary, and the Borough Police Chief developed a comfort level with the business and believed the charges to the Borough for work performed to be reasonable. The Borough continued to utilize All Time for various vehicle maintenance services on multiple occasions after Harvanek began serving on Borough Council in January 2010. Decisions to utilize All Time were made by the Borough Secretary or the Borough Police Chief without consultation or discussion with Borough Council. Harvanek never directed the Borough Secretary or the Borough Police Chief to utilize All Time or solicited the Borough Secretary or Borough Police Chief to utilize All Time for Borough business. From 2010 to the present, Borough Council has not obtained/reviewed quotes and/or sealed bids related to Borough vehicle maintenance. Borough Council approves the selection of a vendor for Borough vehicle repairs/maintenance only if quotes and/or sealed bids are obtained through an open and public process. Between 2010, when Harvanek began serving as a Borough Council Member, and 2013, none of the vehicle maintenance services in excess of $500.00 that were performed by All Time for the Borough were publicly advertised for bid. In or about 2011, then Borough Council President Frank Meledandri (“Meledandri”) discussed with Borough Solicitor Anthony Colangelo (“Colangelo”) a potential conflict of interest situation relating to Harvanek voting to approve bill lists which included payments to All Time. Meledandri requested that Colangelo determine whether or not Harvanek’s official actions were a conflict of interest. Colangelo subsequently advised Harvanek to abstain from the approval of future bill lists that documented payment to All Time to alleviate any potential conflict of interest. Colangelo did not provide any advice related to Borough Council going through a public bidding process if services to be performed by All Time were to exceed $500.00. Harvanek did not vote to approve a bill list after November 20, 2012. From November 2009 through June 2013, All Time submitted 108 invoices to the Borough, seeking payment totaling $52,097.66 for services rendered. Of the 108 invoices submitted to the Borough by All Time, 26 were in excess of $500.00. None of the 26 services rendered in excess of $500.00 were advertised via a public bid, and no quotes were obtained for such services. Three of the invoices in excess of $500.00 were for work performed prior to Harvanek assuming a seat on Borough Council. In four instances, services in excess of $500.00 that were rendered by All Time were piecemealed and submitted to the Borough via ten separate invoices, each of which was under $500.00. Harvanek voted on 25 occasions to approve bill lists which contained 71 of the 108 All Time invoices submitted to the Borough for payment. Harvanek was absent from two meetings at which payments were made to All Time, and he abstained from approving thirteen bill lists that included payments to All Time. Harvanek, 13-009 Page 13 Fifty-three Borough checks totaling $52,097.66 were issued to All Time from December 2009 into August 2013. Harvanek’s votes resulted in payments totaling $37,499.92 to All Time for services rendered, including $2,283.94 for services provided by All Time prior to Harvanek taking office as a Borough Council Member. The parties have stipulated that Harvanek and/or All Time, a business with which he is associated, realized a financial gain when he participated in actions of Borough Council resulting in payments being issued to All Time for providing services for the Borough. As a Borough Council Member, Harvanek is required to annually file an SFI by May 1 containing information for the prior calendar year. Harvanek failed to file SFIs for calendar years 2009 and 2010. Harvanek further failed to disclose his ownership/financial interest in All Time on his SFIs for calendar years 2011 and 2012 and to disclose All Time as a source of income on his SFI for calendar year 2012. 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 Harvanek’s use of the authority of his public office by participating in official actions of Borough Council by voting to approve payment of invoices from All Time Truck and Car Service, a business with which he is associated. b. That a violation of Section 1104(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Harvanek failed to file Statements of Financial Interests for the 2009 and 2010 calendar years. c. That a violation of Section 1105(b) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1105(b), occurred when Harvanek filed deficient Statements of Financial Interests for the 2011 and 2012 calendar years by failing to disclose his ownership/financial interests in All Time Truck and Car Service, and failed to disclose All Time Truck and Car Service as a source of income for calendar year 2012. d. That no violation of Section 1103(f) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(f), occurred in relation to All Time Truck and Car Service entering into contracts with the Borough in excess of $500.00 absent an open and public process, as Harvanek did not utilize the authority of his public office to facilitate the contracts between the Borough and All Time Truck and Car Service. Harvanek, 13-009 Page 14 4. Harvanek agrees to make payment in the amount of $1,000.00 in settlement of this matter payable to the Commonwealth of Pennsylvania, and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. 5. Harvanek agrees to file complete and accurate Statements of Financial Interests with Cheswick Borough through the Pennsylvania State Ethics Commission, for the 2009-2012 calendar years within thirty (30) days of the issuance of the final adjudication in this matter. 6. Harvanek agrees to not accept any reimbursement, compensation or other payment from Cheswick Borough 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 of the parties, we accept the recommendation of the parties for a finding that a violation of Section 1103(a) of the Ethics Act occurred in relation to Harvanek’s use of the authority of his public office by participating in official actions of Borough Council by voting to approve payment of invoices from All Time, a business with which he is associated. All Time is a business with which Harvanek is associated as the owner. Since at least 1997, the Borough utilized All Time to provide vehicle maintenance services for the Public Works Department and the Police Department. The Borough continued to utilize All Time for various vehicle maintenance services on multiple occasions after Harvanek began serving on Borough Council in January 2010. From November 2009 through June 2013, All Time submitted 108 invoices to the Borough, seeking payment totaling $52,097.66 for services rendered. Harvanek used the authority of his public position as a Borough Council Member when he voted on 25 occasions to approve bill lists which contained 71 of the 108 All Time invoices submitted to the Borough for payment. Harvanek’s votes resulted in payments totaling $37,499.92 to All Time for services rendered, including $2,283.94 for services provided by All Time prior to Harvanek taking office as a Borough Council Member. The parties haves stipulated that Harvanek and/or All Time realized a financial gain when he participated in actions of Borough Council resulting in payments being issued to All Time for providing services for the Borough. 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 Harvanek’s use of the authority of his public office by participating in official actions of Borough Council by voting to approve payment of invoices from All Time, a business with which he is associated. Harvanek, 13-009 Page 15 As for the allegations regarding Harvanek’s SFIs, it is clear that Harvanek: (1) failed to file SFIs for the 2009 and 2010 calendar years; (2) failed to disclose his ownership/financial interest in All Time on his SFIs for calendar years 2011 and 2012; and (3) failed to disclose All Time as a source of income on his SFI for calendar year 2012. We hold that a violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Harvanek failed to file SFIs for the 2009 and 2010 calendar years. We further hold that a violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred when Harvanek filed deficient SFIs for the 2011 and 2012 calendar years by failing to disclose his ownership/financial interests in All Time, and failed to disclose All Time as a source of income for calendar year 2012. The parties have recommended a finding that no violation of Section 1103(f) of the Ethics Act occurred in relation to All Time entering into contracts with the Borough in excess of $500.00 absent an open and public process. The parties’ reasoning is that Harvanek did not utilize the authority of his public office to facilitate such contracts between the Borough and All Time. We recognize the prosecutorial discretion of the Investigative Division to opt to not further pursue such alleged violation as part of a negotiated settlement agreement. Without adopting any particular reasoning of the parties, we accept the parties’ recommendation and hold that as part of a negotiated settlement agreement, no violation of Section 1103(f) of the Ethics Act, 65 Pa.C.S. § 1103(f), occurred in relation to All Time entering into contracts with the Borough in excess of $500.00 absent an open and public process. As part of the Consent Agreement, Harvanek has agreed to make payment in the amount of $1,000.00 payable to the Commonwealth of Pennsylvania and forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter. Harvanek has agreed to not accept any reimbursement, compensation or other payment from the Borough representing a full or partial reimbursement of the amount paid in settlement of this matter. Harvanek has further agreed to file complete and accurate SFIs for the 2009 through 2012 calendar years with the Borough, 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, Harvanek is directed to make payment in the amount of $1,000.00 payable to the Commonwealth of Pennsylvania th and forwarded to 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, Harvanek is directed to not accept any reimbursement, compensation or other payment from the Borough representing a full or partial reimbursement of the amount paid in settlement of this matter. To the extent he has not already done so, Harvanek is directed to file complete and accurate SFIs for the 2009 through 2012 calendar years with the Borough, through this th Commission, by no later than the thirtieth (30) day after the mailing date of this adjudication and Order. Harvanek, 13-009 Page 16 Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV.CONCLUSIONS OF LAW: 1. As a Council Member for Cheswick Borough (“Borough”), Allegheny County, from January 19, 2010, until the present, Respondent Brian Harvanek (“Harvanek”) 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. Harvanek violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), in relation to his use of the authority of his public office by participating in official actions of Borough Council by voting to approve payment of invoices from All Time Truck and Car Service, a business with which he is associated. 3. A violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Harvanek failed to file Statements of Financial Interests (“SFIs”) for the 2009 and 2010 calendar years. 4. A violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred when Harvanek filed deficient SFIs for the 2011 and 2012 calendar years by failing to disclose his ownership/financial interests in All Time Truck and Car Service, and failed to disclose All Time Truck and Car Service as a source of income for calendar year 2012. 5. As part of a negotiated settlement agreement, no violation of Section 1103(f) of the Ethics Act, 65 Pa.C.S. § 1103(f), occurred in relation to All Time entering into contracts with the Borough in excess of $500.00 absent an open and public process. In Re: Brian Harvanek, : File Docket: 13-009 Respondent : Date Decided: 2/6/14 : Date Mailed: 2/18/14 ORDER NO. 1631 1. As a Council Member for Cheswick Borough (“Borough”), Allegheny County, Brian Harvanek (“Harvanek”) violated Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), in relation to his use of the authority of his public office by participating in official actions of Borough Council by voting to approve payment of invoices from All Time Truck and Car Service, a business with which he is associated. 2. A violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Harvanek failed to file Statements of Financial Interests (“SFIs”) for the 2009 and 2010 calendar years. 3. A violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred when Harvanek filed deficient SFIs for the 2011 and 2012 calendar years by failing to disclose his ownership/financial interests in All Time Truck and Car Service, and failed to disclose All Time Truck and Car Service as a source of income for calendar year 2012. 4. As part of a negotiated settlement agreement, no violation of Section 1103(f) of the Ethics Act, 65 Pa.C.S. § 1103(f), occurred in relation to All Time entering into contracts with the Borough in excess of $500.00 absent an open and public process. 5. Per the Consent Agreement of the parties, Harvanek is directed to make payment in the amount of $1,000.00 payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission by no later than the th thirtieth (30) day after the mailing date of this Order. 6. Per the Consent Agreement of the parties, Harvanek is directed to not accept any reimbursement, compensation or other payment from the Borough representing a full or partial reimbursement of the amount paid in settlement of this matter. 7. To the extent he has not already done so, Harvanek is directed to file complete and accurate SFIs for the 2009 through 2012 calendar years with the Borough, through th the Pennsylvania State Ethics Commission, by no later than the thirtieth (30) day after the mailing date of this Order. 8. Compliance with paragraphs 5, 6, and 7 of this Order will result in the closing of this case with no further action by this Commission. a. Non-compliance will result in the institution of an order enforcement action. BY THE COMMISSION, ___________________________ John J. Bolger, Chair