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HomeMy WebLinkAbout1638 Moyer In Re: Donald Moyer, : File Docket: 13-019 Respondent : X-ref: Order No. 1638 : Date Decided: 5/7/14 : Date Mailed: 5/9/14 Before: John J. Bolger, Chair Nicholas A. Colafella, Vice Chair Raquel K. Bergen Mark R. Corrigan Roger Nick Maria Feeley 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 allegation(s). Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an “Investigative Complaint.” An Answer was not filed and a hearing was deemed waived. The factual averments in the Investigative Complaint are admitted and are set forth as the following Findings. The record is complete. I. ALLEGATIONS: That Donald Moyer, a public official/public employee in his capacity as a Supervisor for Tobyhanna Township, Monroe County, violated \[Sections 1103(a), 1104(a), 1104(d), and 1105(b)\] of the State Ethics Act (Act 93 of 1998) when he solicited and received travel, hospitality and/or lodging from Papillon & Moyer Excavating & Paving, LLC, including but not limited to travel, lodging and hospitality at various NASCAR events, at a time when he voted to approve and award contracts to Papillon & Moyer Excavating & Paving, LLC, in his capacity as a Township Supervisor; and when he failed to timely file Statements of Financial Interests for calendar years 2008, 2009 and 2010; when he failed to make complete and accurate disclosure concerning 2008, 2009, 2010, 2011 and 2012 calendar years Statement of Financial Interests forms by failing to list all direct and indirect sources of income, all office, directorship or employment in any business and any financial interests in any legal entity in business for profit on said calendar years Statement\[s\] of Financial Interests; and when for calendar years 2008, 2010, 2011 and 2012, he failed to indicate the calendar year for which the forms were being filed; and for calendar years 2008 and 2012, he failed to list his governmental entity; for calendar year 2008, \[he\] failed to list an address and occupation and/or profession; and for calendar year 2010, \[he\] failed to list his status as a public official or employee. II.FINDINGS: 1. The Investigative Division of the State Ethics Commission received a signed, sworn complaint alleging that Donald Moyer violated provisions of the State Ethics Act (Act 93 of 1998). Moyer, 13-019 Page 2 2. Upon review of the complaint the Investigative Division initiated a preliminary inquiry on July 17, 2013. 3. The preliminary inquiry was completed within sixty days. 4. On September 13, 2013, a letter was forwarded to Donald Moyer by the Investigative Division of the State Ethics Commission, informing himthat a complaint against him was received by the Investigative Division and that a full investigation was being commenced. a. Said letter was forwarded by certified mail, no. 7011 0470 0002 7991 6231. b. The domestic return receipt bore the signature of Donald Moyer, with a delivery date of September 18, 2013. 5. Periodic notice letters were forwarded to Donald Moyer in accordance with the provisions of the Ethics Act advising him of the general status of the investigation. 6. The Investigative Complaint/Findings Report was mailed to the Respondent on March 11, 2014. 7. Donald Moyer has served as a Member of the Tobyhanna Township Board of Supervisors since approximately January 2006. a. Tobyhanna Township is a Second Class Township, governed by a five (5) member Board of Supervisors. b. Tobyhanna Township Supervisors receive annual compensation in the amount of $2,500.00 to serve on the Board of Supervisors. 8. Professionally, Moyer owns and operates Moyer’s Country Kitchen, a family style restaurant located on Route 940, Pocono Lake, Pennsylvania. a. Moyer has owned and operated Moyer’s Country Kitchen, at that location, since approximately June 18, 2007. b. Moyer has simultaneously served on the Tobyhanna Township Board of Supervisors and owned and operated Moyer’s Country Kitchen since June 18, 2007. 9. Business records on file with the Pennsylvania Department of State, Corporation Bureau include a Fictitious Name Registration for Moyer’s Country Kitchen. a. This Fictitious Name Registration was filed with the Pennsylvania Department of State on June 18, 2007. b. Entity number 3737338 was assigned to Moyer’s Country Kitchen by the Pennsylvania Department of State. c. Donald Joseph Moyer is the stated owner of Moyer’s Country Kitchen with a principal place of business of Route 940, Pocono Lake, PA 18347. 10. Operationally, Tobyhanna Township generally holds one work session and one regular meeting, open to the public, each month. Moyer, 13-019 Page 3 a. In advance of their monthly meetings, Members of the Board of Supervisors are provided with meeting packets for their review. b. Meeting packets include materials such as prior meeting minutes needing approval, bill lists/treasurer’s reports, agendas, bids, quotes and/or proposals and relevant correspondence. 1. Meeting minutes are transcribed using the services of a court reporter. c. Monthly meeting packets are assembled by clerical staff with input from the Township Secretary, Township Treasurer, Engineer, Solicitor and other Township officials having business before the Board. 11. Tobyhanna Township did not have a Manager from approximately 2006 until July 2, 2013. a. Phyllis Haase has been employed as the Tobyhanna Township Manager since July 2, 2013. 1. Haase previously was employed as the Township’s Zoning Officer from approximately April 8, 2006, until being appointed Manager, effective July 2, 2013. b. Between 2006 and July 2013, the day to day operations of the Township were administered by Supervisor Heidi Pickard, who also held the full time position of Township Secretary. c. During this same time frame, Supervisor John E. Kerrick was also employed by the Township as its Director of Public Works. 12. Tobyhanna Township owns light duty equipment for the general care and maintenance of Township roads. a. Additional equipment needed is obtained on an as-needed basis from private contractors. 13. Around 2005 the Township received suggestions from FEMA and PEMA that \[it\] should consider soliciting bids for equipment rental for emergency purposes. a. The premise behind the suggestions was so that the Township could readily hire private contractors needed to facilitate emergency repairs after major storms. b. The Township Engineer was tasked with developing general bid specifications which were consistent with PennDOT requirements and regulations. c. Complying with PennDOT requirements would ensure that the Township could use State Liquid Fuels funding to pay for the work. d. One of PennDOT’s requirements was that prevailing wages be paid on certain projects. 14. Tobyhanna Township has structured its road department operations in line with the recommendations received from FEMA and PEMA. Moyer, 13-019 Page 4 a. The Township annually solicits equipment rental bids for road projects on an as-needed basis, not just \[for\] emergency situations. b. By structuring Township road work to utilize private contractors, the Township limits the number of full time Public Works Department employees it needs and limits equipment acquisition and maintenance costs. 15. Since approximately 2008, Tobyhanna Township has utilized the following process to select a vendor(s) to provide equipment rental services, to the Township, on an annual basis. a. The Tobyhanna Township Engineer is responsible for preparing bid specifications encompassing anticipated Public Works Department needs. 1. This is done in concert with Supervisor John E. Kerrick acting in his official capacity as Supervisor and Director of Public Works. b. Bid specifications are developed to be compliant with PennDOT requirements allowing for the use of State Liquid Fuels funding where available. c. A legal advertisement requesting bids is placed in the Pocono Record Newspaper. 1. The Pocono Record Newspaper is the local paper used by Tobyhanna Township for legal notices regarding all Township business. d. Bid packets were available upon request at the Township Building. 1. The Township maintained information identifying individuals and businesses which received bid packets. e. Bidding individuals and/or companies were required to be PennDOT approved to be allowed to bid on the annual contract. f. The Township follows a sealed bid process annually for the contract, which is awarded during a public meeting of the Township’s Board of Supervisors. g. The stated contract period was based on the calendar year, commencing January 1 each year, through December 31 of that year. 1. These contracts did not include any options for an additional year(s). h. Bid specifications required prices for all stated equipment, including required operator(s), based on both PennDOT prevailing wage guidelines and non- prevailing wage standards. 1. Bidders were required to submit a bid for all equipment based on a forty (40) hour work week. 2. Bidders were required to have all equipment listed in the contract readily available, on an as-needed basis. 3. The actual total contract value was open-ended based on the equipment being used on an as-needed basis. Moyer, 13-019 Page 5 16. Once in place, the equipment rental contract was administered by Supervisor John E. Kerrick, serving as the Township’s Director of Public Works. a. Kerrick was responsible for identifying the scope of work to be done. b. Kerrick was responsible for contacting the vendor who was awarded the contract, to schedule work, as needed. c. Kerrick was responsible for the initial review of all vendor invoices submitted to the Township for payment, pursuant to the equipment rental contract. d. Once reviewed and initially approved by Kerrick, the vendor invoices were given to Township Treasurer Terri Dougherty to initiate their payment. 1. These payments were processed as part of the Township’s routine payment of bills. 17. Tobyhanna Township uses the following process for the routine payment of bills. a. The Treasurer is responsible for coding all bills to be paid to create a monthly bill list/Treasurer’s report. b. The bill list includes all of the bills to be paid for the month, including those which have been paid between meetings. 1. Bills which are due before the date of the meeting or may have some discount associated with them are sometimes paid prior to Board approval, as a cost savings measure. c. Bill lists are provided to Members of the Board of Supervisors as part of their meeting packets. 1. Bill lists include payments from the General Fund, Sewer Operating Fund, Capital Contingency Reserve, Capital Reserve Fund and Highway Aid Fund. d. Meeting packets are distributed to Members of the Board of Supervisors generally on the Friday before their Monday meeting. e. Bill lists are voted on in their entirety by a single motion and roll call vote of the Board of Supervisors. f. The actual bills to be paid are at the meeting \[for review should any questions be\] raised by the Supervisors or public. g. Township checks are prepared by the Treasurer and signed by the Treasurer and one Supervisor. 1. All five (5) Members of the Tobyhanna Township Board of Supervisors have signature authority on Township financial accounts. th 18. Papillon & Moyer Excavating & Paving (“Papillon & Moyer”), 816 North 9 Street, Stroudsburg, PA 18361 is an excavating, paving and crane service business. a. David W. Moyer is the President of Papillon & Moyer. Moyer, 13-019 Page 6 b. David W. Moyer has been the owner of Papillon & Moyer for approximately the past ten (10) \[sic\]. c. Papillon & Moyer operates two (2) business divisions under \[its\] corporate umbrella. 1. These are \[its\] paving and excavating services as one business entity and \[its\] crane service as the other. 19. David W. Moyer, President of Papillon & Moyer Excavating, is not related to Tobyhanna Township Supervisor Donald Moyer. a. The Moyers have known each other on a social level for approximately twenty-five (25) years. b. The Moyers know each other through school and community events with which their families and children have been involved. 20. Tobyhanna Township Supervisor Donald Moyer does not have any financial interest in Papillon & Moyer Excavating. 21. Papillon & Moyer Excavating has had a business relationship with Tobyhanna Township since at least 2008. a. This ongoing business relationship primarily related to equipment rental and labor provided for the Township’s Public Works Department, under Kerrick’s direct supervision. b. Donald Moyer has served on the Township’s Board of Supervisors throughout this ongoing business relationship. 22. Since 2008, Donald Moyer has participated in the process resulting in Papillon & Moyer Excavating being utilized to perform work for the Tobyhanna Township Public Works Department. Donald Moyer’s participation in the overall process included the following: a. Reviewing and voting in favor of annual contracts for equipment rental awarded to Papillon & Moyer. b. Participating in the review and approval of monthly bill lists which included payments to Papillon & Moyer. c. Signing the front side of Township checks issued to Papillon & Moyer in his official capacity as a Member of the Township’s Board of Supervisors. 23. Between 2008 and 2013, the Township placed ads in the Pocono Record soliciting bids for equipment rental contracts. 24. Tobyhanna Township records maintained for annual equipment rental contracts included the following bid records resulting in Papillon & Moyer Excavating being awarded annual equipment rental contracts since December 2008: a. Contract Year: 2009 Invitation for Bids: Announced Bids due by 12:00 p.m. on December 18, 2008, with a scheduled award date by the Board of Supervisors of December 19, 2008. Moyer, 13-019 Page 7 Legal Ad: Ran in the Pocono Record on December 5, 2008, and December 8, 2008. Bid packets provided to: Locust Ridge Contractors Randy Hoffman Papillon & Moyer Excavating Bids Received From: Papillon & Moyer Excavating Locust Ridge Contractors Bid Award: December 19, 2008, to Papillon & Moyer, with contract signed by John E. Kerrick, Chair and Heidi Pickard, Vice-Chair. Bid Award Notification Letter: Sent by Township Secretary Heidi Pickard, to Papillon & Moyer Excavating, dated December 19, 2008, and requesting a required performance bond in the amount of $89,499.60. b. Contract Year: 2010 Invitation for Bids: Announced Bids due by 12:00 p.m. on December 18, 2009, with a scheduled award date by the Board of Supervisors of December 21, 2009. Legal Ad: Ran in the Pocono Record on December 4, 2009, and December 8, 2009. Bid packets provided to: Locust Ridge Contractors Robert Ciccone Papillon & Moyer Excavating Bids Received From: Papillon & Moyer Excavating Locust Ridge Contractors Bid Award: December 21, 2009, to Papillon & Moyer, with contract signed by John E. Kerrick, Chair and Heidi Pickard, Vice-Chair. Bid Award Notification Letter: Sent by Township Secretary Heidi Pickard, to Papillon & Moyer Excavating, dated December 23, 2009, and requesting a required performance bond in the amount of $199,938.00. c. Contract Year: 2011 Invitation for Bids: Announced Bids due by 11:00 a.m. on December 17, 2010, with a scheduled award date by the Board of Supervisors of December 20, 2010. Legal Ad: Ran in the Pocono Record on December 3, 2010, and December 7, 2010. Moyer, 13-019 Page 8 Bid packets provided to: Locust Ridge Quarry Alter Inc. A. Scott Enterprises, Inc. Papillon & Moyer Excavating Bids Received From: Papillon & Moyer Excavating Bid Award: December 20, 2010, to Papillon & Moyer, with contract signed by John E. Kerrick, Chair and Heidi Pickard, Vice-Chair. Bid Award Notification Letter: Sent by Township Secretary Heidi Pickard to Papillon & Moyer Excavating, dated December 21, 2010, and requesting a required performance bond in the amount of $314,372.80. d. Contract Year: 2012 Invitation for Bids: Announced Bids due by 11:00 a.m. on December 19, 2011, with a scheduled award by the Board of Supervisors \[on\] December 21, 2011. Legal Ad: Ran in the Pocono Record on December 5, 2011, and December 9, 2011. Bid packets provided to: A & R Excavating Papillon & Moyer Excavating Bids Received From: Papillon & Moyer Excavating Bid Award: December 21, 2011, to Papillon & Moyer, with contract signed by John E. Kerrick, Chair and Heidi Pickard, Vice-Chair. Bid Award Notification Letter: Sent by Township Secretary Heidi Pickard to Papillon & Moyer Excavating, dated December 21, 2011, and requesting a required performance bond in the amount of $314,372.80. e. Contract Year: 2013 Invitation for Bids: Announced Bids due by 12:00 p.m. on January 7, 2013, with a scheduled award by the Board of Supervisors \[on\] January 7, 2013. Legal Ad: Ran in the Pocono Record on December 14, 2012, and December 21, 2012. Bid packets provided to: Papillon & Moyer Excavating Bids Received From: Moyer, 13-019 Page 9 Papillon & Moyer Excavating Bid Award: January 7, 2013, to Papillon & Moyer with contract signed by John E. Kerrick, Chair and Heidi Pickard, Vice-Chair. Bid Award Notification Letter: Sent by Township Secretary Heidi Pickard to Papillon & Moyer Excavating, dated January 11, 2013, and requesting a required performance bond in the amount of $316,838.40. f. Contract Year: 2014 Invitation for Bids: Announced Bids due by 12:00 p.m. on December 2, 2013, with a scheduled award by the Board of Supervisors \[on\] December 9, 2013. Legal Ad: Ran in the Pocono Record on November 15, 2013, and November 22, 2013. Bid packets provided to: Papillon & Moyer Excavating Possinger & Sons Excavating Bids Received From: Papillon & Moyer Excavating Bid Award: December 9, 2013, to Papillon & Moyer, with unsigned contract containing signature lines for John E. Kerrick, Chair and Heidi Pickard, Vice-Chair. Bid Award Notification Letter: Sent by Township Manager Phyllis Haase to Papillon & Moyer Excavating, dated December 11, 2013, and requesting a required performance bond in the amount of $332,540.40. 25. Members of the Tobyhanna Township Board of Supervisors were provided with equipment rental bids documents received prior to taking any official action detailed in the previous findings. a. Moyer participated in the review of equipment rental bids for calendar years 2011 through 2012. b. Moyer never disclosed that he had a personal friendship with David Moyer, President of Papillon & Moyer Excavating, while equipment rental bids submitted by Papillon & Moyer Excavating were being considered by the Board of Supervisors. c. Papillon & Moyer Excavating was the only company that submitted a bid to the Township for the equipment rental contract for calendar years 2011 through 2014. 26. Moyer participated in actions taken by the Tobyhanna Township Board of Supervisors to award annual equipment rental contracts to Papillon & Moyer Excavating for calendar years 2011 through 2014. Moyer, 13-019 Page 10 a. Moyer was not present at Board of Supervisors meetings held on December 19, 2008, and December 23, 2009, when equipment rental contracts were awarded to Papillon & Moyer Excavating for the 2009 and 2010 calendar years, respectively. 27. Tobyhanna Township Board of Supervisors meeting minutes reflect that Papillon & Moyer Excavating has annual\[ly\] been awarded equipment rental contracts with the Township since the 2009 calendar year. a. These contracts have been awarded as the result of a sealed bid process detailed above. 28. A summary of Tobyhanna Township Board of Supervisors meeting minutes reflects the following approvals were given awarding annual equipment rental contracts to Papillon & Moyer Excavating since December 19, 2008: a. Meeting Date: December 19, 2008 Contract Year: 2009 Motion: Pickard Second: Lamberton Yes Votes: Keener, Lamberton, Kerrick, Pickard Moyer Absent: b. Meeting Date: December 23, 2009 Contract Year: 2010 Motion: Pickard Second: Keener Yes Votes: Keener, Kerrick, Pickard Abstain: Lamberton Moyer Absent: c. Meeting Date: December 20, 2010 Contract Year: 2011 Motion: Moyer Second: Pickard Moyer Yes Votes: Keener, , Kerrick, Pickard Abstain: Lamberton d. Meeting Date: December 21, 2011 Contract Year: 2012 Motion: Pickard Second: Holahan Moyer Yes Votes: Holahan, , Kerrick, Pickard Abstain: Lamberton e. Meeting Date: January 7, 2013 Contract Year: 2013 Motion: Holahan Second: Moyer Moyer Yes Votes: Holahan, , Kerrick, Pickard Abstain: Lamberton f. Meeting Date: December 19, 2013 Contract Year: 2014 Motion: Holahan Second: Moyer Moyer Yes Votes: Holahan, , Pickard Abstain: Lamberton, Kerrick 29. Transcribed Tobyhanna Township Board of Supervisors meeting minutes include the following recorded discussions and official actions taken and participation by Moyer in awarding annual equipment rental contracts to Papillon & Moyer Excavating since December 20, 2010: Moyer, 13-019 Page 11 December 20, 2010: a. MR. KERRICK: First item on our agenda is consider the equipment bid for 2011. It's in your packet. MS. PICKARD: We only received the one bid from Papillon & Moyer. MR. KERRICK: Did you go through this, Pat, the bid bond? MR. ARMSTRONG: I did not. They were the only bid? MR. KERRICK: Yes. MS. PICKARD: Yes. They were open Friday at 11:15. We had four contractors pick up the packet and only one came in. MR. MOYER: How do we move forward? MR. KERRICK: Pat's going through it. MR. ARMSTRONG: The bid bond, I guess, is ten percent of the amount so that's fine. Yep, that's fine. MR. KERRICK: What's the board's pleasure? MR. MOYER: rest of the bidders? MS. PICKARD: Is the time up for the It was at eleven o'clock on Friday. MR. KERRICK: Four people picked up and only one delivered, and they were open on Friday. MR. MOYER: Well, we got one, I guess, to move forward with it. MS. PICKARD: Do you make the motion to award the equipment bid? MR. MOYER: I'll second that. MS. PICKARD: No, I'm asking you. MR. MOYER: Yeah, I'll make the motion. MS. PICKARD: I'll second the motion. MR. KERRICK: Questions from the board? Questions from the public on the motion? Call the vote. Jamie? MR. KEENER: I vote in favor. MR. KERRICK: Anne? MS. LAMBERTON: I'll abstain. MR. KERRICK: Donny? MR. MOYER: I vote in favor. MR. KERRICK: Heidi? MS. PICKARD: I vote in favor. Moyer, 13-019 Page 12 MR. KERRICK: I'll vote in favor. Motion carried. Present: Kerrick, Moyer, Keener, Pickard, Lamberton. December 21, 2011: b. MR. KERRICK: We'll start new business. First item we have is, consider the award equipment bid. Heidi, you want to explain. We had one bidder. Three people pick up bids. MS. PICKARD: We only had one bid. We opened the bids at 11:15 on Monday, December 19. I had the proof of publication in the Pocono Record and that was from Papillon and Moyer. Did you get a chance to look at that? It appears that everything was in here, the performance, the bid bond. MR. ARMSTRONG: Well, the performance bond will come after the -- MS. PICKARD: The bid bond is what I'm -- and I believe we currently have Papillon and Moyer, and the rates are the same as they were for this past year. So with that, I'll make a motion that we award the equipment hours bid to Papillon and Moyer Excavating and Paving, LLC. MR. HOLAHAN: I'll second. MR. KERRICK: Could I ask a question? In the bid there's both prevailing and MS. PICKARD: -- nonprevailing. MR. KERRICK: Yeah. Do we have to do two motions for that, Pat, or just one? MR. ARMSTRONG: You can make it one motion awarding the bid for both the prevailing and non. MS. PICKARD: I'll amend my motion. MR. KERRICK: Do you amend the second, John? MR. HOLAHAN: I will. MR. KERRICK: Motion and second on the floor. Any questions or comments from the board? Questions or comments from the public? Call the vote. John? MR. HOLAHAN: I vote in favor. MR. KERRICK: Anne? MS. LAMBERTON: I'll abstain. MR. KERRICK: Donny? MR. MOYER: I'll vote in favor MR. KERRICK: Heidi? MS. PICKARD: I vote in favor. MR. KERRICK: I'll vote in favor. Motion carried. Moyer, 13-019 Page 13 Present: Holahan, Kerrick, Lamberton, Pickard, Moyer. January 7, 2013: c. MR. McHALE: Pat, do your best. That would be great. Equipment bid, did you all want to talk about that now? MR. KERRICK: Yes. MS. PICKARD: Yeah. MR. McHALE: The equipment bid, Heidi, John and I had -- were here to open those bids. There was only one equipment bid so that was Papillion and Moyer. They did submit for -- with a schedule for nonprevailing wage rates, as well as prevailing wage rates. I don't know if you all want to take action on that if you could. MR. KERRICK: Do you want to review it? Do you want to talk about it with Bob now or -- MR. HOLAHAN: Let's talk about it with Bob now. The rate over our previous agreements. MR. McHALE: They're pretty well in line with the previous. This is the Papillion and Moyer equipment bid and it's pretty much in line. MR. HOLAHAN: Pretty much the same thing. But one says nonprevailing, one says prevailing -- MR. McHALE: Yes, but the -- MR. HOLAHAN: But the numbers the sa -- remains the same. MR. McHALE: That's up to him to do that. MR. KERRICK: Whatever project it is, whether it's prevailing or nonprevailing, but he chooses to eat the additional for the prevailing and has in the past. MR. McHALE: There was 1100 difference in last year's between the two. MR. KERRICK: If you recall what we have in the budget this year, mostly for continued oil and chip application. And I would say the equipment bid is more on the lines of emergency or some small projects unless we find some additional funding. MR. HOLAHAN: Then once I can find my paperwork, but I'll make a motion that -- I'd make a motion that we accept the bid from Papillion and Moyer on the equipment rental. MR. MOYER: I'll second. MR. KERRICK: Motion and second on the floor. Questions or comments from the board on the motion? Questions or comments from the public on the motion? Call the vote. John? Moyer, 13-019 Page 14 MR. HOLAHAN: I vote in favor. MR. KERRICK: Anne? MS. LAMBERTON: I'll abstain. MR. KERRICK: Donny? MR. MOYER: I'll vote in favor. MR. KERRICK: Heidi? MS. PICKARD: I vote in favor. MR. KERRICK: I'll vote in favor. Motion carried. Present: Holahan, Kerrick, Moyer, Lamberton, Pickard. December 9, 2013: d. MR. KERRICK: Next item consider equipment rental bids Item E in your packet MS. HAASE: We’ve had one bid submitted at the time it was advertised in the Pocono Record and the bid was from Papillion Moyer MR. HOLAHAN: I’ll make a motion that we award the equipment bid to Papillion Moyer MR. MOYER: I’ll second MR. KERRICK: We have a motion, Do we have a second MR. MOYER: I second MR. KERRICK: I’m sorry, Questions or comments, Questions from the public on the motion, Call the question John MR. HOLAHAN: I vote in favor MR. KERRICK: Anne MS. LAMBERTON: I’ll abstain MR. KERRICK: Donny MR. MOYER: I’ll vote in favor MR. KERRICK: Heidi MS. PICKARD: Vote in favor MR. KERRICK: I’ll abstain Present: Kerrick, Moyer, Holahan, Lamberton, Pickard. 30. Donald Moyer, in his official capacity as a Member of the Tobyhanna Township Board of Supervisors, regularly participated in the approval of payments issued to Papillon & Moyer Excavating. Moyer, 13-019 Page 15 a. Township payments issued to Papillon & Moyer Excavating often times would be for multiple equipment rental invoices submitted. 31. Papillon & Moyer Excavating invoices were initially reviewed by Supervisor John Kerrick, in Kerrick’s official capacity as the Township’s Director of Public Works. a. Moyer did not participate in this initial review. 32. Between June 10, 2008, and December 31, 2013, Tobyhanna Township issued approximately seventy-two (72) payments totaling approximately $2,176,661.35, to Papillon & Moyer Excavating. Approximate payments by year are as follows: a. Year Payments Bills Approved 2008 5 $ 210,338.17 2009 17 $ 285,277.48 2010 18 $ 645,167.09 2011 14 $ 290,617.00 2012 12 $ 596,704.84 2013 6 $ 148,556.77 72 $2,176,661.35 33. Moyer, in his official capacity as a Member of the Tobyhanna Township Board of Supervisors, participated in 35 separate \[Board of Supervisors\] actions taken approving payments issued to Papillon & Moyer Excavating totaling approximately $1,562,451.39, during calendar years 2009 through 2013. Approvals by year are as follows: a. Year Votes Bills Approved 2009 9 $ 290,654.33 2010 7 $ 555,616.89 2011 9 $ 275,590.99 2012 5 $ 330,317.61 2013 5 $ 110,271.57 35 $1,562,451.39 34. The following chart details Moyer’s participation in approving monthly bill lists which include payments to Papillon & Moyer Excavating. Highlighted are any motions/seconds Moyer made as well as the annual total of payments approved. Vote by Mtg. Date Bill Pack Motion Second Moyer Vote Invoices Amount 01/12/09 $191,118.15 Pickard Keener Yes 4-0-0-0 1017 $1,147.35 02/09/09 $588,680.32 Pickard Lamberton Yes 4-0-0-0 1080 $18,705.64 04/13/09 $565,066.03 Pickard Kerrick Yes 4-0-1-0 1 $810.00 1 $585.00 06/08/09 $148,266.72 Keener Moyer Yes 4-0-0-0 1 $6,745.00 2 $4,147.64 07/06/09 $761,902.83 Pickard Keener Yes 5-0-0-0 1094 $5,092.50 08/10/09 $197,715.57 Pickard Keener Yes 4-0-1-0 2 $25,906.80 4 $21,362.96 09/14/09 $260,829.83 Pickard Keener Yes 3-0-1-0 3 $1,821.51 3 $7,907.36 2 $18,026.50 4 $59,327.25 10/12/09 $771,396.93 Pickard Keener Yes 3-0-1-0 1 $2,263.82 Moyer, 13-019 Page 16 7 $109,375.50 11/09/09 $110,436.91 Pickard Moyer Yes 3-0-1-0 1280 $7,429.50 2009 $290,654.33 01/04/10 $74,918.51 Keener Moyer Yes 4-0-1-0 1 $6,215.00 02/08/10 $604,430.40 Pickard Keener Yes 4-0-1-0 1287 $29,671.12 2 $22,492.67 04/12/10 $600,633.24 Pickard Keener Yes 4-0-0-1 4 $21,646.00 2 $30,257.48 1 $926.24 06/14/10 $247,726.15 Pickard Keener Yes 4-0-0-1 2 $597.00 4 $72,113.25 08/09/10 $349,065.90 Pickard Keener Yes 4-0-1-0 1300 $152,858.50 09/13/10 $237,468.28 Pickard Keener Yes 4-0-1-0 1301 $52,374.88 10/11/10 $726,532.49 Pickard Keener Yes 4-0-1-0 1304 $10,757.25 7 $121,302.50 1 $10,447.75 1 $20,145.25 1 $3,812.00 2010 $555,616.89 01/03/11 $235,179.41 Pickard Keener Yes 3-0-1-0 1306 $38,598.25 02/14/11 $586,842.97 Pickard Keener Yes 3-0-1-0 2 $2,359.93 2 $32,151.37 03/14/11 $262,610.32 Pickard Moyer Yes 3-0-1-1 6 $17,397.49 04/11/11 $332,844.87 Pickard Keener Yes 4-0-1-0 1 $4,953.50 06/13/11 $372,276.85 Pickard Keener Yes 4-0-0-1 2 $1,689.90 08/08/11 $157,623.90 Pickard Moyer Yes 4-0-1-0 1 $150.00 09/12/11 $512,554.91 Pickard Moyer Yes 3-0-1-1 2 $38,302.28 10/10/11 $335,565.02 Pickard Keener Yes 3-0-1-0 35582 $39,574.16 5 $28,174.87 11/14/11 $463,370.44 Pickard Moyer Yes 3-0-1-1 7 $51,130.07 3 $21,109.17 2011 $275,590.99 01/03/12 $120,977.94 Pickard Holahan Yes 3-0-1-0 8 $39,087.00 02/06/12 $563,663.04 Pickard Moyer Yes 3-0-1-1 6 $61,967.91 06/11/12 $417,978.87 Pickard Holahan Yes 4-0-0-1 4 $57,640.96 08/13/12 $371,312.18 Pickard Moyer Yes 4-0-1-0 8 $70,025.34 $346,107.76 1 $15,229.36 11/12/12 $543,218.16 Pickard Moyer Yes 4-0-1-0 6 $67,525.54 37473 $18,841.50 2012 $330,317.61 02/11/13 $492,243.81 Holahan Moyer Yes 4-0-1-0 1 $1,120.20 05/13/13 $427,562.63 Holahan Moyer Yes 3-0-2-0 37896 $18,341.50 08/12/13 $333,536.98 Holahan Moyer Yes 3-1-1-1 5 $43,269.01 10/07/13 $333,202.25 Pickard Moyer Yes 3-0-1-1 5 $38,330.99 Moyer, 13-019 Page 17 12/09/13 $545,864.62 Pickard Moyer Yes 4-0-1-0 38409 $9,209.87 2013 $110,271.57 35. Between October 14, 2008, and February 12, 2013, Moyer, in his official capacity as a Member of the Tobyhanna Township Board of Supervisors, signed the front side of fifteen (15) checks totaling approximately $695,112.66, which were issued to Papillon & Moyer Excavating. Authorizations by year were as follows: a. Year # Signed Amount 2008 1 $136,569.57 2009 5 $195,221.61 2010 3 $215,061.75 2011 3 $70,658.03 2012 2 $76,481.50 2013 1 $1,120.20 15 $695,112.66 36. The following chart details the fifteen (15) Tobyhanna Township checks totaling approximately $695,112.66 issued to Papillon & Moyer Excavating that Moyer signed the front side of in his official capacity as a Member of the Township’s Board of Supervisors, between June 10, 2008, and December 31, 2013. Check Date # Amount Signed 10/14/08 1012 $136,569.57 Moyer, Dougherty $136,569.57 04/14/09 1088 $585.00 Moyer, Dougherty 09/15/09 1103 $59,327.25 Moyer, Dougherty 09/15/09 3630 $7,907.36 Moyer, Dougherty 09/15/09 1276 $18,026.50 Moyer, Dougherty 10/13/09 1108 $109,375.50 Moyer, Dougherty $195,221.61 04/13/10 34144 $21,646.00 Moyer, Dougherty 06/15/10 1298 $72,113.25 Moyer, Dougherty 10/12/10 34672 $121,302.50 Moyer, Dougherty $215,061.75 02/15/11 3934 $32,151.37 Moyer, Dougherty 03/15/11 35043 $17,397.49 Moyer, Dougherty 11/15/11 35733 $21,109.17 Moyer, Dougherty $70,658.03 Moyer, 13-019 Page 18 06/12/12 37105 $57,640.00 Moyer, Dougherty 11/13/12 37473 $18,841.50 Moyer, Dougherty $76,481.50 02/12/13 37694 $1,120.20 Moyer $1,120.20 37. Effective August 27, 2013, Tobyhanna Township Manager Phyllis Haase implemented changes in the way the Township conducted business with Papillon & Moyer in order to eliminate potential conflicts of interest between Papillon & Moyer and Members of the Board of Supervisors. a. On or about August 27, 2013, Haase held a meeting with Supervisor Kerrick, advising him that he would no longer be able to initiate work with Papillon & Moyer. 1. Haase provided this advice due to the ongoing business relationship between Papillon & Moyer and John H. Kerrick Builder, a business owned by Township Supervisor and Director of Public Works John E. Kerrick. b. Haase transferred that function to her position as Township Manager. c. Haase also became responsible for the initial review and approval of invoices submitted by Papillon & Moyer for payment to the Township, a task previously performed by Kerrick. d. Kerrick continued to hold the positions of Township Supervisor and Director of Public Works but was restricted in his ability to initiate work with Papillon & Moyer. e. No changes were made to the manner in which the annual equipment rental contract was bid. f. No changes were made to the manner in which the Township processed invoices submitted by Papillon & Moyer after they were initially approved by Manager Haase. THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS THAT MOYER SOLICITED AND RECEIVED TRAVEL, HOSPITALITY AND/OR LODGING FROM PAPILLON & MOYER EXCAVATING & PAVING, LLC AT A TIME WHEN HE VOTED TO APPROVE AND AWARD CONTRACTS TO PAPILLON & MOYER EXCAVATING & PAVING, LLC, IN HIS CAPACITY AS A TOWNSHIP SUPERVISOR. 38. David Moyer, President of Papillon & Moyer Excavating, owns a Beechcraft Bonanza, single engine aircraft. a. This plane seats three (3) plus the pilot. b. David Moyer pilots this aircraft for both personal use and Papillon & Moyer Excavating business. c. Dave Moyer keeps this aircraft at the Mount Pocono Airport. Moyer, 13-019 Page 19 39. Both Donald Moyer and David Moyer share a common interest in NASCAR auto racing and have connections to drivers and/or tracts \[sic\] in the sport. a. Papillon & Moyer Excavating has performed work at Pocono International Speedway. b. Donald Moyer employed the mother-in-law of NASCAR driver Ryan Newman at Moyer’s Country Kitchen. 40. Through those connections, both David Moyer and Donald Moyer developed a personal friendship with NASCAR driver Ryan Newman. a. Donald Moyer has attended various NASCAR events and functions at the request of Newman. b. Both Moyers attended NASCAR races at the request of Newman and others connected to the sport. 41. Between 2010 and 2012, both David and Donald Moyer attended at least two NASCAR races held at Richmond International Raceway (“RIR”), in Richmond, Virginia. a. RIR hosts two (2) NASCAR Sprint Cup Series races annually. b. Both annual races held at RIR are scheduled for Saturday nights. 42. NASCAR Sprint Cup Series races were held at RIR on the following dates between 2010 and 2012: a. 2010: May 1, 2010, and September 11, 2010. b. 2011: April 30, 2011, and September 10, 2011. c. 2012: April 28, 2011 \[sic\], and September 8, 2012. 43. Neither David Moyer nor Donald Moyer knew exactly which two (2) RIR races they attended. a. Donald Moyer believed that the two races he attended with David Moyer at RIR together \[sic\] were held in 2010 and 2011. b. David Moyer believed that the two races he attended at RIR together \[sic\] were held in 2011 and 2012. c. Neither had any documentation of the exact dates of the two races at RIR they attended together. 44. For both NASCAR Sprint Cup Series races Donald Moyer attended at RIR with David Moyer, round trip air transportation was provided by David Moyer the day of the race from the Mount Pocono Airport, Mount Pocono, Pennsylvania, to Richmond, Virginia, and back. a. Donald Moyer did not pay David Moyer or Papillon & Moyer Excavating anything towards the cost of the transportation. b. Donald Moyer’s wife also joined them on one of the two trips to RIR. Moyer, 13-019 Page 20 1. It is not known which year Donald Moyer’s wife attended the race. 45. David Moyer provided a rental value of his plane at approximately $250.00 per hour including the pilot. a. David Moyer estimated the flight time from the Mount Pocono Airport to Richmond, Virginia, to be one hour and fifteen minutes. b. David Moyer did not believe that his hourly rate estimate would be applicable towards stand-by time at the airport in Richmond, Virginia, since he and another guest attended the races as well. c. David Moyer was the pilot for both trips to RIR. d. David Moyer believed that his actual cost for each trip was approximately $200.00 for fuel. 46. David Moyer did not provide Donald Moyer or Donald Moyer’s wife with any lodging or hospitality associated with either trip to RIR. a. Donald Moyer asserts that his rental car from the airport and entrance to the races were provided by Ryan Newman, as a result of their personal friendship. 47. The cost for Moyer and his wife to travel to NASCAR races at the expense of David Moyer was at least $1,000.00. a. The exact events attended are not known. b. Donald Moyer received a private pecuniary gain of approximately $1,000.00 based on a rate of $500.00 per race ($250.00 each way). 48. During the time frame from 2012 \[sic\] through 2012 when he accepted free airfare from David Moyer, Donald Moyer regularly participated in actions as a Tobyhanna Township Supervisor to approve contracts with and issue payments to Donald \[sic\] Moyer’s company, Papillon & Moyer Excavating. 49. Between 2010 \[sic\] and 2012, Donald Moyer participated in the following actions as a Member of the Tobyhanna Township Board of Supervisors which benefited David Moyer d/b/a Papillon & Moyer Excavating: a. Annually participated in \[Board of Supervisors\] actions taken to award equipment rental contracts to Papillon & Moyer Excavating during 2011 and 2012 (See Finding # 25). b. Participated in \[Board of Supervisors\] actions taken to approve approximately thirty-five (35) bill lists containing payments totaling $1,562,451.39 to Papillon & Moyer Excavating (See Finding # 33). c. Signed the front side of approximately fifteen (15) Township checks totaling $695,112.66 issued to Papillon & Moyer Excavating (See Finding # 36). 50. Donald Moyer did not publically disclose that he had received no cost air transportation from David Moyer, to at least two (2) NASCAR Sprint Cup Series events held at RIR, between 2010 and 2012, while participating in the official actions detailed in the previous finding. Moyer, 13-019 Page 21 a. Donald Moyer did not report the receipt of the free air transportation on any Statement of Financial Interests form he filed for the 2010 through 2012 calendar years. THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS THAT MOYER FAILED TO TIMELY FILE STATEMENTS OF FINANCIAL INTERESTS FOR CALENDAR YEARS 2008, 2009 AND 2010; AND THAT HE FAILED TO MAKE COMPLETE AND ACCURATE DISCLOSURE CONCERNING 2008, 2009, 2010, 2011 AND 2012 CALENDAR YEARS STATEMENT OF FINANCIAL INTERESTS FORMS. 51. Donald Moyer, in his official capacity as a Member of the Tobyhanna Township st Board of Supervisors, was annually required to file with the Township, by May 1, a completed Statement of Financial Interests form containing information for the prior calendar year. 52. In Tobyhanna Township, clerical secretary Margie Argot is responsible for the distribution and retention of Statement of Financial Interests form\[s\]. a. Each January, Argot will distribute blank Statement of Financial Interests form\[s\] to be filled out by Township officials and select employees. b. Argot maintains a list of Township officials and employees that she provides blank Statement of Financial Interests forms to on an annual basis. c. Completed Statement of Financial Interests forms are returned to Argot’s attention for retention with other Township records. 53. On August 27, 2013, the following Statement of Financial Interests forms on file with Tobyhanna Township for Donald Moyer were reviewed: a. Calendar Year: 2012 (Not Completed On Form) Dated: 02/14/13 on form SEC-1 REV.01/13 “Date Stamp Received Feb 14, 2013” Position: Supervisor Governmental Entity: Blank Occupation: Restaurant Owner Creditors: None Direct/Indirect Income: None All Other Financial Interests: None b. Calendar Year: 2011 (Not Completed On Form) Dated: 02/28/12 on form SEC-1 REV.01/12 “Date Stamp Received Feb 29, 2012” Position: Supervisor Governmental Entity: Tobyhanna Township Occupation: Restaurant Owner Creditors: None Direct/Indirect Income: None All Other Financial Interests: None c. Calendar Year: 2010 (Not Completed On Form) Dated: 05/13/11 on form SEC-1 REV.01/11 “Date Stamp Received May 13, 2011” Position: Supervisor Governmental Entity: Tobyhanna Township Moyer, 13-019 Page 22 Occupation: Restaurant Owner Creditors: None Direct/Indirect Income: None All Other Financial Interests: None d. Calendar Year: 2009 Dated: 04/30/10 on form SEC-1 REV.01/10 “Date Stamp Received May 6, 2010” Position: Supervisor Governmental Entity: Tobyhanna Township Occupation: Restaurant Owner Creditors: None Direct/Indirect Income: None All Other Financial Interests: None e. Calendar Year: 2008 (Not Completed On Form) Dated: 05/04/09 on form SEC-1 REV.01/09 Position: Supervisor Governmental Entity: Blank Occupation: Blank Creditors: None Direct/Indirect Income: None All Other Financial Interests: None 54. Statement of Financial Interests forms filed by Donald Moyer, in his official capacity as a Tobyhanna Township Supervisor, as detailed in previous findings, confirmed multiple deficiencies on each SFI filed for calendar years 2008 through 2012. Known deficiencies by year included the following: a. Date Signed: 02/14/13 on Form SEC-1 REV. 01/13 Box # Response Item Section 5 Blank Governmental Entity 1105(b)(1) 7 Blank Calendar Year (2012) 1105(b) 10 None Direct/Indirect Income 1105(b)(5) 13 None Office, Directorship or Employment 1105(b)(8) 14 None Financial Interest in any Business 1105(b)(9) b. Date Signed: 02/28/12 on Form SEC-1 REV. 01/12 Box # Response Item Section 7 Blank Calendar Year (2011) 1105(b) 10 None Direct/Indirect Income 1105(b)(5) 13 None Office, Directorship or Employment 1105(b)(8) 14 None Financial Interest in any Business 1105(b)(9) c. Date Signed: 05/13/11 on Form SEC-1 REV. 01/11 Date Stamped: May 13, 2011- Not timely filed Box # Response Item Section 3 Blank Status 1105(b)(1) 7 Blank Calendar Year (2010) 1105(b) 10 None Direct/Indirect Income 1105(b)(5) 13 None Office, Directorship or Employment 1105(b)(8) 14 None Financial Interest in any Business 1105(b)(9) d. Date Signed: 04/30/10 on Form SEC-1 REV. 01/10 Date Stamped: May 06, 2010- Not timely filed Moyer, 13-019 Page 23 2009 Calendar Year Listed Box # Response Item Section 10 None Direct/Indirect Income 1105(b)(5) 13 None Office, Directorship or Employment 1105(b)(8) 14 None Financial Interest in any Business 1105(b)(9) e. Date Signed: 05/04/09 on Form SEC-1 REV. 01/09 Date Signed: 05/04/09 – Not timely filed Box # Response Item Section 2 Incomplete Address 1105(b)(1) 5 Blank Governmental Entity 1105(b)(1) 6 Blank Occupation/Profession 1105(b)(2) 7 Blank Calendar Year (2008) 1105(b) 10 Blank Direct/Indirect Income 1105(b)(5) 13 None Office, Directorship or Employment 1105(b)(8) 14 None Financial Interest in any Business 1105(b)(9) 55. The following summarizes deficient Statement of Financial Interests forms filed by Donald Moyer, in his official capacity as a Tobyhanna Township Supervisor, for calendar years 2008 through 2012: a. Moyer failed to timely file SFI’s for the 2008, 2009 and 2010 calendar years. b. Moyer failed to complete Box # 2, address, on his SFI filed for the 2008 calendar year. c. Moyer failed to respond to Box # 3, Status, on his SFI filed for the 2010 calendar year. d. Failed to respond to Box # 5, Governmental Entity, on his SFI’s filed for the 2008 and 2012 calendar years. e. Moyer failed to respond to Box # 6, Occupation/Profession, on his SFI filed for the 2008 calendar year. f. Moyer failed to respond to Box # 7, Calendar Year, on his SFI’s filed for the 2008, 2010, 2011 and 2012 calendar years. g. Failed to respond, or marked none in Box # 10, Direct/Indirect Income on his SFI’s filed for calendar years 2008 through 2012. h. Moyer marked None in Box #13, Office, Directorship, or Employment in any Business, failing to disclose his ownership interest \[sic\] in Moyer’s Country Kitchen on his SFI’s filed for calendar years 2008 through 2012. i. Moyer marked None in Box #14, Financial Interest in any Business, failing to disclose his ownership interest in Moyer’s Country Kitchen on his SFI’s filed for calendar years 2008 through 2012. 56. Moyer failed to report direct/indirect sources of income on any of his filings. a. As a Tobyhanna Township Supervisor, Moyer annually receives $2,500.00, paid in quarterly installments of $625 each, which he failed to report. Moyer, 13-019 Page 24 b. Moyer admitted to Ethics Commission Investigators that he received income in excess of $1,300.00 annually from his business, Moyer’s Country Kitchen, between 2008 and 2012 which was not reported. 57. On October 21, 2013, Donald Moyer submitted amended Statement of Financial Interests forms for calendar years 2008 through 2012, directly to the State Ethics Commission. a. These amended forms were filed by Moyer to correct deficiencies on SFI forms Moyer previously filed in his official capacity as a Supervisor for Tobyhanna Township detailed in the previous findings. b. These forms were filed subsequent to Moyer’s receipt of the notice of investigation from the State Ethics Commission. 58. Amended SFI forms filed by Moyer for calendar years 2008 through 2012 with the State Ethics Commission on October 21, 2013, included the following information: a. Calendar Year: 2012 Dated 10/17/13 on form SEC-1 REV. 01/13 Position: Township Supervisor Occupation: Chef/Owner Creditors: None Direct/indirect Income: Moyer’s Country Kitchen, Tobyhanna Township Office, Directorship, or Employment in any Business: Moyer’s Country Kitchen, Owner Financial Interest in any Business for Profit: Moyer’s Country Kitchen, 100% All other financial interests: None b. Calendar Year: 2011 Dated 10/17/13 on form SEC-1 REV. 01/13 Position: Township Supervisor Occupation: Chef/Owner Creditors: None Direct/indirect Income: Moyer’s Country Kitchen, Tobyhanna Township Office, Directorship, or Employment in any Business: Moyer’s Country Kitchen, Owner Financial Interest in any Business for Profit: Moyer’s Country Kitchen, 100% All other financial interests: None c. Calendar Year: 2010 Dated 10/17/13 on form SEC-1 REV. 01/13 Position: Township Supervisor Occupation: Chef/Owner Creditors: None Direct/indirect Income: Moyer’s Country Kitchen, Tobyhanna Township Office, Directorship, or Employment in any Business: Moyer’s Country Kitchen, Owner Financial Interest in any Business for Profit: Moyer’s Country Kitchen, 100% All other financial interests: None d. Calendar Year: 2009 Dated 10/17/13 on form SEC-1 REV. 01/13 Position: Township Supervisor Occupation: Chef/Owner Creditors: None Direct/indirect Income: Moyer’s Country Kitchen, Tobyhanna Township Moyer, 13-019 Page 25 Office, Directorship, or Employment in any Business: Moyer’s Country Kitchen, Owner Financial Interest in any Business for Profit: Moyer’s Country Kitchen, 100% All other financial interests: None e. Calendar Year: 2008 Dated 10/17/13 on form SEC-1 REV. 01/13 Position: Township Supervisor Occupation: Chef/Owner Creditors: None Direct/indirect Income: Moyer’s Country Kitchen, Tobyhanna Township Office, Directorship, or Employment in any Business: Moyer’s Country Kitchen, Owner Financial Interest in any Business for Profit: Moyer’s Country Kitchen, 100% All other financial interests: None 59. From 2008 through 2012, Donald Moyer annually received compensation from Tobyhanna Township in the amount of $2,500.00, while failing to have accurately filed \[sic\] Statement of Financial Interests forms on file with the Township. III.DISCUSSION: As a Member of the Tobyhanna Township (“Township”) Board of Supervisors since approximately January 2006, Respondent Donald Moyer, also referred to herein as “Respondent,” “Respondent Moyer,” and “Moyer,” 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. The allegations are that Respondent violated Sections 1103(a), 1104(a), 1104(d), and 1105(b) of the Ethics Act: (1) When he solicited and received travel, hospitality and/or lodging from Papillon & Moyer Excavating & Paving, LLC (“Papillon & Moyer”), including but not limited to travel, lodging and hospitality at various NASCAR events, at a time when he voted to approve and award contracts to Papillon & Moyer in his capacity as a Township Supervisor; (2) When he failed to timely file Statements of Financial Interests (“SFIs”) for calendar years 2008, 2009, and 2010; (3) When he failed to make complete and accurate disclosure concerning 2008, 2009, 2010, 2011, and 2012 calendar year SFI forms by failing to list all direct and indirect sources of income, all office, directorship or employment in any business, and any financial interests in any legal entity in business for profit on said calendar year SFIs; (4) When for calendar years 2008, 2010, 2011, and 2012, he failed to indicate the calendar year for which the forms were being filed; (5) When for calendar years 2008 and 2012, he failed to list his governmental entity; (6) When for calendar year 2008, he failed to list an address and occupation and/or profession; and (7) When for calendar year 2010, he failed to list his status as a public official. Moyer, 13-019 Page 26 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 1104(a) of the Ethics Act provides that each public official/public employee must file an SFI 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, or enter or continue upon his duties, nor shall he receive compensation from public funds, unless he has filed an SFI as required by the Ethics Act. Pursuant to Section 1105(a) of the Ethics Act, the SFI shall be filed using the form prescribed by this Commission, and all information requested on the SFI shall be provided to the best of the knowledge, information and belief of the person required to file and shall be signed under oath or equivalent affirmation. Section 1105(b) of the Ethics Act and its subsections detail the financial disclosure that a person required to file the SFI form must provide. Section 1105(b)(1) of the Ethics Act requires the filer to disclose on the SFI his name, address, and public position. Section 1105(b)(2) of the Ethics Act requires the filer to disclose on the SFI his Moyer, 13-019 Page 27 occupation or profession. Subject to certain statutory exceptions not applicable to this matter, Section 1105(b)(5) of the Ethics Act requires the filer to disclose on the SFI the name and address of any direct or indirect source of income totaling in the aggregate $1,300 or more. Section 1105(b)(8) of the Ethics Act requires the filer to disclose on the SFI any office, directorship or employment in any business entity. Section 1105(b)(9) of the Ethics Act requires the filer to disclose on the SFI any financial interest in any legal entity engaged in business for profit. The term “financial interest” is defined in the Ethics Act as “\[a\]ny financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness.” 65 Pa.C.S. § 1102. We shall now summarize the facts pertaining to this case. Given Respondent’s failure to file an Answer to the Investigative Complaint, the facts as averred by the Investigative Complaint are deemed admitted by Respondent. 65 Pa.C.S. § 1108(e); 51 Pa. Code § 21.5(k)(1). The Township is governed by a five-Member Board of Supervisors (“Board”). Township Supervisors receive annual compensation in the amount of $2,500.00 for serving on the Board. Respondent has served as a Supervisor since approximately January 2006. Professionally, Respondent owns and operates Moyer’s Country Kitchen, a family style restaurant located in Pocono Lake, Pennsylvania. Respondent has owned and operated the restaurant at that location since approximately June 18, 2007. The Township owns light-duty equipment for the general care and maintenance of Township roads. Additional equipment is obtained on an as-needed basis from private contractors. Since approximately 2008, the Township has selected a vendor to provide equipment rental services to the Township under an annual contract awarded through a sealed bid process. The equipment rental contract is awarded during a public meeting of the Board. The actual total contract value is open-ended based on the equipment being used on an as-needed basis. Vendor invoices submitted pursuant to the equipment rental contract are processed as part of the Township’s routine payment of bills. Papillon & Moyer is an excavating, paving and crane service business located in Stroudsburg, Pennsylvania. David W. Moyer (“David Moyer”) is the President of Papillon & Moyer. David Moyer is not related to Respondent Moyer, and Respondent Moyer does not have any financial interest in Papillon & Moyer. David Moyer and Respondent Moyer have known each other on a social level for approximately twenty-five years through school and community events with which their families and children have been involved. Since at least 2008, Papillon & Moyer has had a business relationship with the Township which is primarily related to equipment rental and labor provided for the Township Public Works Department. Each year from 2008 through 2013, the Township placed advertisements in the Pocono Record newspaper soliciting bids for the following calendar year’s annual equipment rental contract. Papillon & Moyer and one other business submitted bids for the equipment rental contracts for the 2009 and 2010 calendar years. Papillon & Moyer was the only business to submit bids for the equipment rental contracts for the 2011 through 2014 calendar years. The Board voted to award the equipment rental contracts for the 2009 through 2014 calendar years to Papillon & Moyer. Respondent was not present at Board meetings held in 2008 and 2009 when the Board voted to award the equipment rental contract to Papillon & Moyer for the 2009 and 2010 calendar years, respectively. Respondent voted in favor of Moyer, 13-019 Page 28 awarding the equipment rental contracts for the 2011 through 2014 calendar years to Papillon & Moyer. For the 2011 calendar year contract, Respondent also made the motion to award the contract to Papillon & Moyer. For the 2013 and 2014 calendar year contracts, Respondent also seconded the motion to award the contract to Papillon & Moyer. Respondent regularly participated in the approval of payments issued by the Township to Papillon & Moyer. Township payments issued to Papillon & Moyer were often for multiple equipment rental invoices submitted by Papillon & Moyer. Between June 10, 2008, and December 31, 2013, the Township issued approximately seventy-two payments totaling approximately $2,176,661.35 to Papillon & Moyer. From January 12, 2009, through December 9, 2013, Moyer voted on thirty-five occasions to approve Township bill lists that included $1,562,451.39 in payments to Papillon & Moyer. On fifteen of those occasions, Respondent also seconded the motion to approve the bill list. Between October 14, 2008, and February 12, 2013, Respondent signed, as an authorized Township signatory, fifteen checks totaling approximately $695,112.66 which the Township issued to Papillon & Moyer. Respondent and David Moyer share a common interest in NASCAR auto racing and have connections to the sport. Respondent developed a personal friendship with NASCAR driver Ryan Newman (“Newman”) through employing Newman’s mother-in-law at Respondent’s restaurant, and David Moyer developed a personal friendship with Newman through work performed by Papillon & Moyer at Pocono International Speedway. Respondent and David Moyer have attended NASCAR races at the request of Newman and others connected to the sport. David Moyer owns a single engine airplane which he pilots for both personal use and Papillon & Moyer business. David Moyer keeps his airplane at the Mount Pocono Airport. Between 2010 and 2012, Respondent attended two NASCAR races with David Moyer which were held at Richmond International Raceway (“RIR”) in Richmond, Virginia. For each NASCAR race at RIR that Respondent and David Moyer attended together, David Moyer piloted his airplane and provided Respondent with round trip air transportation between the Mount Pocono Airport and Richmond, Virginia, the day of the race. Respondent’s wife joined him and David Moyer on one of the trips to RIR. David Moyer did not provide Respondent or his wife with any lodging or hospitality associated with either trip to RIR. Respondent did not pay David Moyer or Papillon & Moyer anything towards the cost of the round trip air transportation to the two NASCAR races at RIR. David Moyer provided a rental value of his airplane at approximately $250.00 per hour including the pilot, and he estimated the flight time from the Mount Pocono Airport to Richmond, Virginia, to be one hour and fifteen minutes. Per admitted Fact Finding 47 b, Respondent received a private pecuniary gain of approximately $1,000.00 based upon a rate of $500.00 for each NASCAR race ($250.00 each way per race) to which he traveled at the expense of David Moyer. As a Township Supervisor, Respondent is required to annually file an SFI by May 1 containing information for the prior calendar year. On August 27, 2013, Respondent had five SFIs on file with the Township. With respect to the aforesaid SFIs, Respondent failed to timely file his SFIs for the 2008, 2009, and 2010 calendar years. Per the Fact Findings deemed admitted by Respondent, Respondent further failed to: (1) disclose all direct and indirect sources of income in excess of $1,300, including the Township and Moyer’s Country Kitchen, on his SFIs for calendar years 2008 through 2012; (2) disclose his office, directorship, or employment in Moyer’s Country Kitchen on his SFIs for calendar years 2008 through 2012; (3) disclose his ownership interest in Moyer’s Country Kitchen on his SFIs for calendar years 2008 through 2012; (4) indicate on his SFIs for calendar years 2008, 2010, 2011, and 2012 the calendar year for which each SFI was filed; (5) disclose his governmental entity on his SFIs for calendar years 2008 and 2012; (6) disclose his Moyer, 13-019 Page 29 complete address and his occupation or profession on his SFI for calendar year 2008; and (7) disclose his status as a public official on his SFI for calendar year 2010. On October 21, 2013, Respondent submitted amended SFI forms for calendar years 2008 through 2012 directly to this Commission to correct deficiencies on the SFI forms that he previously filed with the Township. We must now determine, based upon the record, whether the actions of Respondent violated the Ethics Act. As we apply the facts to the allegations, due process requires that we not depart from the allegations. Pennsy v. Department of State, 594 A.2d 845 (Pa. Commw. Ct. 1991). A violation of the Ethics Act must be based upon clear and convincing proof. 65 Pa.C.S. § 1108(g). Clear and convincing proof is “so ‘clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue.’” In Re: Charles E.D.M., 550 Pa. 595, 601, 708 A.2d 88, 91 (1998) (Citation omitted). The first allegation is that Respondent violated Section 1103(a) of the Ethics Act when he solicited and received travel, hospitality and/or lodging from Papillon & Moyer, including but not limited to travel, lodging and hospitality at various NASCAR events, at a time when he voted to approve and award contracts to Papillon & Moyer in his capacity as a Township Supervisor. The acceptance of gifts, transportation, lodging or hospitality from donor(s) may form the basis for a violation of Section 1103(a) of the Ethics Act when the public official/public employee uses the authority of his public position as to the donor. See, e.g., Maley, Order 1594; Munford, Order 1390; Espenshade, Order 1387; Helsel, Order 801; cf., Haldeman, Order 1443 (involving tickets to sporting events and clothing items received from grant applicants). In the instant matter, Respondent used the authority of his public position as a Township Supervisor in matters involving Papillon & Moyer: (1) when he voted in favor of awarding the Township’s annual equipment rental contracts for the 2011 through 2014 calendar years to Papillon & Moyer; (2) when, from January 12, 2009, through December 9, 2013, he voted on thirty-five occasions to approve Township bill lists that included $1,562,451.39 in payments to Papillon & Moyer; and (3) when, between October 14, 2008, and February 12, 2013, he signed, as an authorized Township signatory, fifteen checks totaling approximately $695,112.66 which the Township issued to Papillon & Moyer. During the time that Respondent was using the authority of his public position in matters involving Papillon & Moyer, he received round trip air transportation to two NASCAR races in Richmond, Virginia, from David Moyer, President of Papillon & Moyer, via an airplane owned and piloted by David Moyer. Although this type of conduct could form the basis for a violation of Section 1103(a) of the Ethics Act, we conclude that the private pecuniary benefit in the amount of approximately $1,000.00 that Respondent realized as a result of receiving the round trip air transportation from David Moyer was de minimis. Based upon the above, we hold that Respondent did not violate Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when he received round trip air transportation to two NASCAR races in Richmond, Virginia, from David Moyer, President of Papillon & Moyer, at a time when he voted to approve and award contracts to Papillon & Moyer in his capacity as a Township Supervisor, in that the resulting private pecuniary benefit was de minimis. Turning to the allegations regarding Respondent’s SFIs, we hold that Respondent violated Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), when he failed to timely file SFIs for calendar years 2008, 2009, and 2010. Moyer, 13-019 Page 30 We further hold that Respondent violated Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), when he failed to make complete and accurate disclosure concerning 2008, 2009, 2010, 2011, and 2012 calendar year SFI forms by failing to list all direct and indirect sources of income, his office, directorship or employment in any business, and his financial interests in any legal entity in business for profit on said calendar year SFIs; when for calendar years 2008, 2010, 2011, and 2012, he failed to indicate the calendar year for which the forms were being filed; when for calendar years 2008 and 2012, he failed to list his governmental entity; when for calendar year 2008, he failed to list an address and occupation and/or profession; and when for calendar year 2010, he failed to list his status as a public official. As for the allegation pertaining to Section 1104(d) of the Ethics Act, Respondent obtained annual compensation in the amount of $2,500.00 for serving as a Township Supervisor while he was in violation of the financial disclosure requirements of the Ethics Act. Specifically, Respondent failed to properly file complete and accurate SFIs for calendar years 2008, 2009, 2010, 2011, and 2012. Accordingly, we hold that Respondent obtained a financial gain of $12,500.00 in contravention of Section 1104(d) of the Ethics Act, 65 Pa.C.S. § 1104(d), when he received compensation as a public official but failed to properly file the requisite SFIs for calendar years 2008, 2009, 2010, 2011, and 2012. Cf., Hoover, Order 1402; Nagele, Order 1403. Section 1107(13) of the Ethics Act empowers this Commission to order restitution in instances where a public official/public employee has obtained a financial gain in violation of the Ethics Act. Although we are aware that we could order restitution of the full $12,500.00 of compensation that Respondent received from the Township while failing to have the requisite SFIs on file for calendar years 2008, 2009, 2010, 2011, and 2012, we shall exercise our discretion and order restitution in the amount of $2,500.00 for one year of Respondent’s compensation as a Township Supervisor. Accordingly, Respondent is directed to make payment of restitution in the amount of $2,500.00 payable to Tobyhanna Township and forwarded to this Commission by no later th than the thirtieth (30) day after the mailing date of this adjudication and Order. Respondent is further directed to not accept any reimbursement, compensation or other payment from the Township representing a full or partial reimbursement of the aforesaid restitution. It is not clear from the admitted Fact Findings whether Respondent’s SFIs for calendar years 2008, 2009, 2010, 2011, and 2012 are now in compliance with the Ethics Act. To the extent he has not already done so, Respondent is directed to file with the Township amended SFIs for calendar years 2008, 2009, 2010, 2011, and 2012, disclosing all required information, and to forward copies of such filings to this Commission by no th later than the thirtieth (30) day after the mailing date of this adjudication and Order. Noncompliance will result in the institution of an order enforcement action. IV.CONCLUSIONS OF LAW: 1. As a Member of the Tobyhanna Township (“Township”) Board of Supervisors since approximately January 2006, Respondent Donald Moyer (“Moyer”) 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. Moyer did not violate Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when he received round trip air transportation to two NASCAR races in Richmond, Virginia, from David Moyer, President of Papillon & Moyer, at a time when he voted Moyer, 13-019 Page 31 to approve and award contracts to Papillon & Moyer in his capacity as a Township Supervisor, in that the resulting private pecuniary benefit was de minimis. 3. Moyer violated Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), when he failed to timely file Statements of Financial Interests (“SFIs”) for calendar years 2008, 2009, and 2010. 4. Moyer violated Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), when he failed to make complete and accurate disclosure concerning 2008, 2009, 2010, 2011, and 2012 calendar year SFI forms by failing to list all direct and indirect sources of income, his office, directorship or employment in any business, and his financial interests in any legal entity in business for profit on said calendar year SFIs; when for calendar years 2008, 2010, 2011 and 2012, he failed to indicate the calendar year for which the forms were being filed; when for calendar years 2008 and 2012, he failed to list his governmental entity; when for calendar year 2008, he failed to list an address and occupation and/or profession; and when for calendar year 2010, he failed to list his status as a public official. 5. Moyer obtained a financial gain of $12,500.00 in contravention of Section 1104(d) of the Ethics Act, 65 Pa.C.S. § 1104(d), when he received compensation as a public official but failed to properly file the requisite SFIs for calendar years 2008, 2009, 2010, 2011, and 2012. In Re: Donald Moyer, : File Docket: 13-019 Respondent : Date Decided: 5/7/14 : Date Mailed: 5/9/14 ORDER NO. 1638 1. As a Member of the Tobyhanna Township (“Township”) Board of Supervisors, Donald Moyer (“Moyer”) did not violate Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), when he received round trip air transportation to two NASCAR races in Richmond, Virginia, from David Moyer, President of Papillon & Moyer Excavating & Paving, LLC (“Papillon & Moyer”), at a time when he voted to approve and award contracts to Papillon & Moyer in his capacity as a Township Supervisor, in that the resulting private pecuniary benefit was de minimis. 2. Moyer violated Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), when he failed to timely file Statements of Financial Interests (“SFIs”) for calendar years 2008, 2009, and 2010. 3. Moyer violated Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), when he failed to make complete and accurate disclosure concerning 2008, 2009, 2010, 2011, and 2012 calendar year SFI forms by failing to list all direct and indirect sources of income, his office, directorship or employment in any business, and his financial interests in any legal entity in business for profit on said calendar year SFIs; when for calendar years 2008, 2010, 2011 and 2012, he failed to indicate the calendar year for which the forms were being filed; when for calendar years 2008 and 2012, he failed to list his governmental entity; when for calendar year 2008, he failed to list an address and occupation and/or profession; and when for calendar year 2010, he failed to list his status as a public official. 4. Moyer obtained a financial gain of $12,500.00 in contravention of Section 1104(d) of the Ethics Act, 65 Pa.C.S. § 1104(d), when he received compensation as a public official but failed to properly file the requisite SFIs for calendar years 2008, 2009, 2010, 2011, and 2012. 5. Moyer is directed to make payment of restitution in the amount of $2,500.00 payable to Tobyhanna Township and forwarded to the Pennsylvania State Ethics th Commission by no later than the thirtieth (30) day after the mailing date of this Order. 6. Moyer is directed to not accept any reimbursement, compensation or other payment from the Township representing a full or partial reimbursement of the aforesaid restitution. 7. To the extent he has not already done so, Moyer is directed to file with the Township amended SFIs for calendar years 2008, 2009, 2010, 2011, and 2012, disclosing all required information, and to forward copies of such filings to the th Pennsylvania State Ethics Commission by no later than the thirtieth (30) day after the mailing date of this Order. Moyer, 13-019 Page 33 8. Non-compliance with paragraph 5, 6, or 7 of this Order will result in the institution of an order enforcement action. BY THE COMMISSION, ___________________________ John J. Bolger, Chair Commissioner Raquel K. Bergen and Commissioner Maria Feeley dissent as to the amount of restitution ordered and would require restitution of the full amount of $12,500.00, based upon their view that Section 1104(d) of the Ethics Act does not provide discretion to order less than full restitution of the compensation that Moyer received as a public official while in violation of the financial disclosure requirements of the Ethics Act.