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HomeMy WebLinkAbout1643 Colocino In Re: Deborah Colocino, : File Docket: 13-021 Respondent : X-ref: Order No. 1643 : Date Decided: 6/16/14 : Date Mailed: 7/14/14 Before: John J. Bolger, Chair Nicholas A. Colafella, Vice Chair Raquel K. Bergen Mark R. Corrigan Roger Nick Kathryn Streeter Lewis 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 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 Deborah Colocino, a public official/public employee in her capacity as a Council Member for Jersey Shore Borough, Lycoming County, violated \[Sections 1103(a), 1103(f), 1104(a), and 1104(d)\] of the State Ethics Act (Act 93 of 1998) when she used the authority of her public position for the private pecuniary benefit of herself and/or an immediate family member and/or a business with which a member of her immediate family is associated, when she utilized the authority of her public position to direct Borough staff to issue payments to her husband and/or her husband’s company for landscaping services provided to the Borough; when she utilized the authority of her public position to vote for the payment of bills including payments of public monies to her husband and/or her husband’s landscaping company; when those services were entered into between the Borough and \[her\] husband and/or \[her\] husband’s business without an open and public process; and when she failed to file a Statement of Financial Interests for the 2009 calendar year. II.FINDINGS: 1. Deborah Colocino has continuously served as a Member of Jersey Shore Borough Council since January 4, 2010. Colocino, 13-021 Page 2 a. Deborah Colocino was employed as the Jersey Shore Borough Manager from approximately February 7, 2000, through the end of 2005. 2. Colocino currently serves as Chair of the Borough’s Finance Committee. a. The Borough’s Finance Committee is comprised of three (3) Members of Council. b. As Chair of the Borough’s Finance Committee, Colocino is responsible for presenting the monthly bill lists to Council for approval. 3. Borough committee assignments are made by the President of Council during Council’s biennial reorganization. a. In addition to the Finance Committee, Jersey Shore Borough has other committees including: Police; Tree; Personnel; Highway; Sewer; Codes; Fire; Chamber of Commerce; Hospital Liaison; and Library. 4. Jersey Shore Borough Council is comprised of eight (8) Council Members plus a Mayor. a. Council Members are compensated $100.00 per month. 1. Attendance at meetings of Council is not a requirement to receive compensation. b. Jersey Shore Borough employs approximately four (4) full-time laborers in the Public Works Department. 1. The Public Works Department is responsible for the general care and maintenance of the Borough streets and property. c. The Borough’s Public Works Department has the ability to perform maintenance and landscaping services at Borough-owned parks and facilities. 1. The Borough maintains approximately forty (40) acres of public land which includes numerous parks, playgrounds, athletic fields, and a Borough-owned swimming pool. 5. Grieco Park and Veterans Park are two public/park properties owned and maintained by the Borough. a. Both Grieco Park and Veterans Park are located near the main thoroughfare of Jersey Shore Borough and serve as a focal point to visitors entering the Borough. 1. Grieco Park and Veterans Park received greater attention to maintenance than other Borough property for aesthetic reasons. b. Jersey Shore Borough’s Public Works Department does not conduct summer landscaping/grounds keeping at Grieco Park or Veterans Park. 1. Borough Public Works Department employees are responsible for landscaping/grounds keeping work at all other Borough-owned parks and facilities. Colocino, 13-021 Page 3 6. Prior to 2014, Jersey Shore Borough Council did not follow a bid process for summer landscaping/grounds keeping services at Grieco Park and Veterans Park. a. Jersey Shore Borough had not solicited bids for summer landscaping/maintenance services at Grieco Park or Veterans Park since Deborah Colocino became a Member of Council. b. Council did not take into consideration the contracting provision (Section 1103(f)) of the State Ethics Act when awarding the annual contract without advertising for bids or quotes. 7. Jersey Shore Borough Council took no official action to solicit bids or otherwise advertise for bids regarding landscaping/grounds keeping services for the 2009 calendar year. 8. Around November 2008, John Colocino engaged in a conversation with the Borough Manager, regarding his (Colocino’s) ability to provide landscaping services to the Borough during the 2009 calendar year. a. From 2006 through 2008, Borough employees and private contractors were utilized by the Borough to provide maintenance and landscaping services at Grieco Park and Veterans Parks. b. Borough officials were not satisfied with the quality of work or costs associated with maintenance of these parks during that timeframe (2006- 2008). c. John Colocino had not provided any landscaping/grounds keeping services to the Borough between 2006 and 2008. 1. Colocino had previously provided landscaping services to the Borough. d. Deborah Colocino was not a Member of Jersey Shore Borough Council when the November 2008 discussion occurred between John Colocino and the Borough Manager. 9. Deborah Colocino has been married to John Colocino for approximately thirty- seven (37) years. a. John Colocino is employed as a Grounds Keeper at Lycoming College, Williamsport, Pennsylvania. b. John Colocino does not offer landscaping/grounds keeping services through any business entity, either incorporated or unincorporated/fictitious name. 10. John Colocino has provided landscaping services for Jersey Shore Borough on a part-time, contractual basis from approximately 1986 to 2005, and most recently from 2009 to 2013. a. The extent of landscaping/grounds keeping services John Colocino provided to the Borough between 1986 and 2005 had never extended beyond Grieco Park and Veterans Park. 1. Between 2006 and 2008, landscaping/grounds keeping at these parks was done by either Borough employees or a private contractor. Colocino, 13-021 Page 4 b. In performing these services, John Colocino would utilize his own tools and equipment. 1. Materials such as flowers and mulch are either donated or purchased by the Borough. 11. On November 17, 2008, John Colocino submitted a proposal to the Borough Manager for landscaping/grounds keeping services to be provided to the Borough during 2009. a. John Colocino’s November 17, 2008, proposal was for spring cleanup and maintenance of Grieco Park and Veterans Park. Specific work to be performed included: 1) mowing and weeding both parks on a weekly basis; 2) controlling weeds in beds and sidewalks; 3) trimming small trees and shrubs as needed; 4) mulching beds (mulch supplied by Borough) in spring; and 5) planting of donated flowers in parks for Memorial Day. b. The total amount of the proposal was $3,800.00, to be paid in five (5) monthly installments of $633.00 per month starting in April 2009 and one (1) final payment of $635.00 in September 2009. c. This proposal did not include any renewal clause for work to continue beyond September 2009. 12. On February 20, 2009, the Borough Manager sent correspondence to John Colocino referencing the discussion regarding his proposal held on February 9, 2009. Excerpts from the correspondence reflect: a. “The total amount in the agreement is not to exceed $3,800.00 and is to be paid in six (6) installments, the first five to be paid monthly in the amount of $633.00 beginning in April 2009, the sixth and final payment in the amount of $635.00 to be made in September 2009.” b. An attached agreement included with the correspondence was signed by the Borough Manager and identified the following services to be provided: “landscaping and maintenance of the Veterans and Grieco Parks in the Borough. The estimate should include the following: 1) Weed area and removal of dead debris from the winter; 2) Mulch areas to include edging, Borough will provide mulch; 3) Trim existing shrubbery and existing material for sizing; 4) Fertilize lawn area plus planted area, fertilizer to be provided by Borough; 5) Regular maintenance during season include weeding; 6) Fall cleanup in preparation for winter; 7) Planting of donated flowers (Shaffer’s); 8) Water parks from beyond site water outlets; 9) Mow grass and weed weekly; Spring maintenance, planting, mulching and all necessary preparations to be completed as early as weather permits but in any case prior to Memorial Day.” c. This document included signature lines for both the Borough Manager and John Colocino. 1. An executed copy of this document is filed with the Borough and includes a signature for John Colocino, dated February 25, 2009. aa. The Borough Manager signed on February 20, 2009. 13. Jersey Shore Borough Council did not take any official action authorizing the hiring of/contracting with John Colocino to provide landscaping services to the Borough at Colocino, 13-021 Page 5 Grieco Park and Veterans Park during 2009. a. Deborah Colocino was not a Member of Jersey Shore Borough Council during 2009 when this contract was negotiated/executed. 14. Payments due to John Colocino pursuant to the agreement/contract were included as line item number 454.371 in the Borough’s annual General Fund Budget under the title “Park Maintenance.” a. Within the Borough’s budget, John Colocino is not listed by name, and reference is only made to “Park Maintenance.” b. Since 2010, the General Fund Budget has included the following annual amounts as budgeted line items numbered 454.371, “Park Maintenance”: 2010: $4,000.00; 2011: $6,800.00 (Under 454.115 Park Mowing/CLNG; 454.371 Park; Maintenance Included); 2012: $9,000.00; 2013: $9,000.00; 2014: $9,000.00. c. John Colocino did not receive the entire budgeted amounts listed above. 1. A portion of the budget allocation was used to buy plants, mulch, and other maintenance/beautification items. 15. Borough payments issued to John Colocino during 2009 were managed through the Borough’s normal bill paying process, which may be summarized as follows: a. Jersey Shore Borough Council approves the payment of bills on a monthly basis. b. A bill list is generated by the Borough’s Program Coordinator each month. c. Bill lists include individual and total monthly disbursements for various Borough financial accounts, including: General Fund; Sewer Fund; Swimming Pool; Liquid Fuels; and Rails-To-Trails. d. Bill lists are provided to Council for review the Friday before the next regular meeting, which is to be held the following Monday night. e. Bill lists are presented to Council for approval each month by the Chair of the Finance Committee. f. Council does not review the actual invoices or bills appearing on any given bill list unless there is a specific question or issue as to a particular invoice/bill. g. After the bills are approved as presented, checks are signed by the Council Chair, Vice Chair, Chair of the Finance Committee, or Manager. 1. At least three (3) signatures of the above represented positions must be present to validly issue a payment check. 16. Jersey Shore Borough financial records reflect John Colocino receiving six (6) payments totaling $3,800.00 for landscaping services provided pursuant to the agreement for the year 2009. a. These six (6) payments pre-dated Deborah Colocino serving as a Member of Jersey Shore Borough Council. Colocino, 13-021 Page 6 b. These payments were budgeted/paid out of General Fund Budget amounts specified for park maintenance services. 17. No signed agreements were in place between John Colocino and Jersey Shore Borough as of January 2010, when Deborah Colocino assumed her seat as a Member of Borough Council. a. The agreement between Jersey Shore Borough and John Colocino dated February 25, 2009, did not include any automatic renewal clause or provisions for services to continue beyond September 2009. b. Deborah Colocino was aware that her husband had been compensated to provide landscaping/grounds keeping services to the Borough prior to her becoming a Member of Council. 18. On July 1, 2009, Deborah Colocino emailed a bill/invoice to the Jersey Shore Borough Treasurer for landscaping services on behalf of her husband. a. This email was sent from Deborah Colocino’s personal email account. b. Deborah Colocino’s July 1, 2009, email included the following request of the Borough Treasurer: “Attached please find John’s Invoice for the month. We are hoping that it does not take as long this month to pay this bill. With the th Borough Meeting not being held until the 13 and following the pattern of last month we would not receive payment until the last week of July. If this is going to continue to be the case, I would appreciate it if you would have left us know that as that was not part of the agreement. Our billing states 10 days and it seems to be going up to 20 days now until payment…Thank You Deb Colocino.” 19. Following Deborah Colocino’s election to Council, Jersey Shore Borough took no action in regards to soliciting bids, quotes, or proposals for landscaping services at Grieco Park or Veterans Park between 2010 and 2013. a. The anticipated cost associated with landscaping/grounds keeping at Grieco Park and Veterans Park was in excess of $500.00 annually. b. Funding for the work was included as a General Fund Budget line item titled “Park Maintenance.” 20. John Colocino continued to be compensated by the Borough for performing landscaping/grounds keeping services at Grieco Park and Veterans Park from 2010 through 2013 without a specific vote of Council authorizing the work. a. The Borough Manager served as John Colocino’s point of contact regarding the continuation of the landscaping/grounds keeping agreement from one year to the next. 1. The Manager did not solicit quotes or initiate a new written agreement with John Colocino. 2. The Manager made the decision not to bring the matter to Council for a vote. Colocino, 13-021 Page 7 b. John Colocino would commence work around March or April of each year by contacting the Borough’s administrative staff to arrange for the delivery of mulch and flowers to Grieco Park and Veterans Park. c. The Borough Manager was responsible for ensuring that John Colocino was maintaining both Grieco Park and Veterans Park. 1. Borough supervision of the contract/agreement consisted of occasional visual inspection of the parks throughout the summer months. 21. Between 2010 and 2013, no formal executed agreements existed between the Borough and John Colocino regarding landscaping/grounds keeping services at Grieco Park and Veterans Park. a. Funding for landscaping/grounds keeping at these parks was annually included in the Borough’s General Fund Budget between 2010 and 2013. b. No official action was taken by Council to hire or otherwise enter into a contractual relationship with John Colocino during this time frame (2010- 2013). 1. The Borough Manager never brought a contract for John Colocino to a vote by Council. c. Since John Colocino began providing landscaping/grounds keeping services at Grieco Park and Veterans Park in 2009, the Borough has had approximately four (4) different Borough Managers. 22. Jersey Shore Borough Council meeting minutes reflect that Deborah Colocino participated in actions of Jersey Shore Borough Council to approve annual General Fund Budgets for calendar years 2011, 2012, and 2013 which included a line item budget for “Parks Maintenance” as follows: a. 1) On December 13, 2010, Colocino made a motion to pass the 2011 General Fund Budget; 2) On December 14, 2011, Colocino voted to approve the 2012 General Fund Budget; and 3) on December 26, 2012, Colocino voted to approve the 2013 General Fund Budget. b. Colocino abstained from voting as it related to the General Fund line item “Park Maintenance” for the 2014 budget year. 23. The only recorded action of Jersey Shore Borough Council regarding the annual landscaping/grounds keeping work performed by John Colocino is its approval of payments issued to him. a. Not all payments issued to John Colocino were included on monthly bill lists. 1. Numerous payments were issued to John Colocino after the monthly bill lists were prepared for Council. b. Payments not included on monthly bill lists were “deemed approved” upon the actual check being signed by Borough officials. Colocino, 13-021 Page 8 24. Deborah Colocino did not make any public disclosures that her husband, John Colocino, was being compensated by the Borough to perform landscaping/grounds keeping services between 2010 and 2013. a. It was common knowledge among Council Members and the community of the spousal relationship between Deborah Colocino and John Colocino. 25. Jersey Shore Borough records include a proposal created by the Borough Manager, dated April 1, 2013, for landscaping/grounds keeping services to be provided by John Colocino during 2013. a. The April 1, 2013, document was signed by the Borough Manager but was not executed by John Colocino. b. The April 1, 2013, proposal did not go before Borough Council for any review or approval. c. John Colocino received compensation from the Borough for landscaping/grounds keeping services provided during 2013, despite the fact that a fully executed agreement as proposed by the Borough Manager was not returned to the Borough. d. The Borough Manager did not require a signed agreement with Colocino, since past practice between the Borough and Colocino did not require an executed agreement and funding for the work was approved/allocated within the General Fund Budget. 26. The Borough’s April 1, 2013, landscaping offer to John Colocino was as follows: “The Borough of Jersey Shore recognizes your past contributions to the Borough and desires to retain your gardening/landscaping services for fiscal year 2013. In the role of gardener/landscaper for the Borough of Jersey Shore you will be expected to perform the following services for the Borough:  Mowing and cleaning of Grieco Park and Veterans Park  Landscaping which includes planting flowers, mowing weeds, and doing the mulch work at Grieco Park, Veterans Park, and the Gazebo The Borough of Jersey Shore will provide the mulch. Please make sure that you make contact with the Borough when you are ready for the mulch and provide a location to place the mulch for your convenience. In the near future, the Borough will be locking up the Chipping area. We will provide you with a key to that area for your convenience and ask that the key be returned to the Borough at the end of the season. Also, it has been recommended by Council that you purchase the flowers for the parks from the Amish on Route 44 just past the intersection of Route 654 to provide savings for the Borough. Your salary for performing these services in 2013 will be $4,100. You will be paid 5 installments in the amount of $683 and (a) final installment in the amount of $685. If you are in agreement with the above employment offer details, please sign below and return this employment offer to the Borough Office at 232 Smith St. P.O. Box 526, Jersey Shore, PA 17740 within (10) days.” 27. Jersey Shore Borough records do not include any other proposals for landscaping/grounds keeping work for the years 2010 through 2012. Colocino, 13-021 Page 9 28. Payments from the Borough to John Colocino for landscaping/grounds keeping during the year 2010 were initiated upon receipt of an invoice dated April 2010 from John Colocino. a. This invoice was in the amount of $633.00 and states that it was “as per st agreed proposal – 1 installment payment for April, 2010 $633.00.” b. An “entered” stamp on the invoice was dated 4-20-10. 1. The “entered” stamp indicated the date it was received by the Borough. c. Similar invoices were on file for other months in 2010, including June, July, and September. 29. John Colocino received his initial payment from the Borough for landscaping/grounds keeping services at Grieco Park and Veterans Park for the year 2011 following the Borough’s receipt of an invoice dated April 4, 2011, from John Colocino. a. This invoice was in the amount of $666.00 and states that it was for “Installment #1 of Parks Proposal for 2011 $666.00.” b. An “entered” stamp on the invoice was dated April 13, 2011. c. Similar invoices were on file for other months in 2011, including May, June, July, August, and September. 30. John Colocino received payment for landscaping/grounds keeping work from the Borough for the year 2012 after forwarding a proposal dated February 7, 2012, to the Borough. a. This proposal was in the amount of $4,100.00 and states that it was for “Proposal for mowing and cleaning of Grieco Park and Veterans Park and occasional work at Gazebo…Taking care of landscaping at Gazebo for the year 2012\[…\] Total proposal amount: $4,100\[…\] To be paid in 5 installments starting April 1, 2012 – August 1, 2012 in the amount of $683.00 and final installment in September, 2012 of $685.00.” b. The proposal dated February 7, 2012, did not have any signatures evidencing an acceptance by either John Colocino or a representative of the Borough. c. Copies of the unexecuted proposal were included with vouchers on file with the Borough for other months in 2012, including April, May, June, July, August, and September. 31. Payments to John Colocino for landscaping/grounds keeping services for the year 2013 were in accord with the Borough’s April 1, 2013, proposal with the initial payment being made after the Borough received an invoice dated April 1, 2013, from John Colocino. a. This invoice was in the amount of $683.00 and states that it was for “Installment #1 of Parks Proposal for 2013 $683.00.” b. An “entered” stamp on the invoice was dated April 04, 2013. Colocino, 13-021 Page 10 c. Similar invoices were on file with the Borough for other months in 2013, including May, June, July, August, and September. 32. In addition to invoices being mailed/hand-delivered to the Borough, Deborah Colocino submitted invoices for payment on behalf of her husband via her personal email account. a. This submission occurred after Colocino began service as a Member of Council in 2010; however, Colocino asserts that the Borough’s practice of accommodating payment requests preceded her being on Council. b. On occasion, Colocino would also contact Borough employees to inquire about the payment status of some of the payments due her husband. c. Payments were issued to John Colocino between Council meetings to accommodate Deborah Colocino’s requests for immediate/expedited payment. 33. Jersey Shore Borough records include emails from Deborah Colocino initiating payment of landscaping invoices for her husband. a. These emails were sent under the name “Deb Colocino” from her personal email address. b. John Colocino does not use this email account for communication purposes. 34. Jersey Shore Borough records include the following emails from Deborah Colocino regarding payment due her husband: a. Email dated April 14, 2010 (6:37 a.m.), from Deb Colocino to the Borough Treasurer, Subject; Parks Bill. Colocino writes: “I thought this is what was in the envelope that he gave me with your name on that I left in my in box. Sorry.” April 14, 2010 (8:14 a.m.), forwarded to the Borough Program Coordinator with instructions: “Here is John’s bill for you to process.” Attachments: John Borough Billing.docx. b. Email dated July 15, 2010 (4:48 p.m.), from Deb Colocino to the Borough Treasurer, Subject: Park Billing. Colocino writes: “Here is Johns park bills for July and August.” July 19, 2010 (7:51 a.m.). The Borough Treasurer forwards to the Program Coordinator with no instructions. Attachments: John Borough Billing.docx, John Borough Billing.docx. c. Email dated September 2, 2010 (8:56 a.m.) from Deb Colocino to the Borough Treasurer, Subject: Park Bill. Colocino writes: “Here is John’s final bill for the season. Thanks. Deb.” September 2, 2010 (10:03 a.m.). The Borough Treasurer forwards to the Program Coordinator with instructions: “Please enter for the September bill meeting.” Attachments: John Borough Billing.docx. d. Email dated June 2, 2011 (9:10 p.m.), from Deb Colocino to the Borough Treasurer, cc: \[Program Coordinator\], Subject: June Billing. Colocino writes: “Attached please find billing for June for the parks.” June 3, 2011 (8:36 a.m.). The Borough Treasurer forwards to the Program Coordinator with instructions: “Please put in the June bills. SL.” Attachments: John Borough Billing.docx. e. Email dated July 11, 2011 (9:34 p.m.), from Deb Colocino to the Borough Colocino, 13-021 Page 11 Treasurer, cc: \[Program Coordinator\], Subject: July Billing. Colocino writes: “Here is John’s Park Billing. It’s a little late but I guess it can still get in.” Attachments: John Borough Billing.docx. July 12, 2011 (4:06 p.m.). The Borough Treasurer forwards to the Program Coordinator with instructions: “Did you receive this? Please enter this in this check run. Thanks.” Attachments: John Borough Billing.docx. f. Email dated September 18, 2011 (9:50 p.m.), from Deb Colocino. Colocino writes: “Here is John’s bill. Please let me know if you get it.” Attachments: John Borough Billing.docx. g. Email dated September 18, 2011 (9:57 p.m.), from Deb Colocino to the Borough Treasurer, Subject: Parks. Colocino writes: “Here is Johns billing for August.” September 20, 2011 (8:17 a.m.). The Borough Treasurer forwards to the Program Coordinator with no instructions. Attachments: John Borough Billing.docx. h. Email dated September 18, 2011 (9:57 p.m.), from Deb Colocino to the Borough Treasurer, Subject: Septembers Park Bill. Colocino writes: “Finally here is the parks bill. Deb.” September 20, 2011 (8:17 a.m.). The Borough Treasurer forwards to the Program Coordinator with no instructions. Attachments: John Borough Billing.docx. i. Email dated September 18, 2011 (9:57 p.m.), from Deb Colocino to the Borough Treasurer, Subject: Septembers Park Bill. Colocino writes: “Finally here is the parks bill. Deb.” September 20, 2011 (6:44 a.m.). Colocino forwards to the Program Coordinator with instructions: “Let me know whether you got this. I sent it to \[the Borough Treasurer\] but it came back.” Attachments: John Borough Billing.docx. 35. Jersey Shore Borough financial records, including monthly bill lists and processed checks, reflect that Deborah Colocino routinely participated in the approval of Borough bill lists which included payments to her husband, John Colocino. a. Between July 27, 2010, and September 17, 2013, Deborah Colocino, in her official capacity as a Member of Jersey Shore Borough Council, voted thirteen (13) times to approve payments totaling $8,751.00 to John Colocino for landscaping services/grounds keeping. b. Colocino asserts that no one, including the Borough Manager and Solicitor, advised her to abstain from participating in regard to her husband’s landscaping company, including voting to approve the line item budget for parks maintenance, submitting invoices on behalf of her husband via her personal email account, and voting to approve payment to her husband. 36. Financial records maintained by Jersey Shore Borough confirm that John Colocino received twenty-four (24) payments, totaling $15,997.00, for landscaping services between April 23, 2010, and the present. a. Between April 23, 2010, and September 28, 2011, Deborah Colocino signed, in her official capacity as a Member of Jersey Shore Borough Council and/or Chair of the Borough’s Finance Committee, twelve (12) Borough checks issued to her husband totaling $7,797.00. b. Deborah Colocino, in her official capacity as a Member of Jersey Shore Borough Council, both voted to approve and signed four (4) Jersey Shore Borough checks/payments to John Colocino totaling $2,600.00. Colocino, 13-021 Page 12 37. Between 2010 and 2013, the Borough issued to John Colocino 1099 Miscellaneous Income Forms, which reflected total annual income from the Borough as follows: a. 2010: $3,800.00; 2011: $3,997.00; 2012: $4,100.00; and 2013: $4,100.00. 38. Between April 23, 2010, and August 20, 2013, John Colocino was issued eleven (11) Borough payments, totaling approximately $7,246.50, without a prior approval of Council and/or inclusion on a monthly bill list. a. The eleven (11) payments referenced above were made between Council meetings and in response to a request by Deborah Colocino to Borough employees to expedite payment. b. As a sitting Member of Council, Deborah Colocino had general supervisory authority over Borough employees. 39. Deborah Colocino and/or John Colocino, a member of her immediate family, realized a private pecuniary benefit as a result of Deborah Colocino utilizing the authority of her office as a public official, namely as a Council Member for Jersey Shore Borough, to direct Borough staff to expedite payments to her husband and/or her husband’s landscaping company for landscaping services provided to the Borough, and when she voted to approve payment of bills including payments of public monies to her husband and/or her husband’s landscaping company; and when contracts were awarded to John Colocino’s landscaping company in excess of $500.00 absent an open and public process. THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS THAT DEBORAH COLOCINO FAILED TO FILE A STATEMENT OF FINANCIAL INTERESTS FORM WITH JERSEY SHORE BOROUGH BY MAY 1, 2010, CONTAINING INFORMATION FOR THE 2009 CALENDAR YEAR. . 40In her official capacity as a Member of Jersey Shore Borough Council, Deborah Colocino was annually required to file a Statement of Financial Interests form by st May 1 each year, containing information for the prior calendar year. 41. Each January, Members of Jersey Shore Borough Council were provided with a blank Statement of Financial Interests form by the administration. a. Completed Statement of Financial Interests forms are maintained in a secure portion of the Borough Office. 42. Statement of Financial Interests forms on file with Jersey Shore Borough as of September 25, 2013, included the following filings for Deborah Colocino: a. Calendar Year: 2012 (2013 incorrectly written in box # 7 of this form); Dated: 7/08/13 on form SEC-1 REV. 01/13; Position: Council Candidate; Occupation: Office Assistant; Creditors: None; Direct/Indirect Income: None; All Other Financial Interests: None. 1. This form was dated in excess of two (2) months after the May 1, 2013, filing deadline. Although this form is for calendar year 2012, it incorrectly lists calendar year 2013 in box 7 (Year). 2. Colocino maintains that she promptly completed her 2012 Statement of Financial Interests form once she was provided with the form by Borough representatives. Colocino, 13-021 Page 13 b. Calendar Year: 2011; Dated: 4/09/12 on form SEC-1 REV. 01/12; Position: Council Member; Occupation: Office Assistant; Creditors: None; Direct/Indirect Income: Susquehanna Health; All Other Financial Interests: None. c. Calendar Year: 2010; Dated: 4/14/11 on form SEC-1 REV. 01/11; Position: Borough Council; Occupation: Unemployed; Creditors: Jersey Shore State Bank; Direct/Indirect Income: None; All Other Financial Interests: None. d. No Calendar Year 2009 form on file as of September 25, 2013. 43.On October 28, 2013, the Jersey Shore Borough Solicitor, Denise Dieter, provided an email copy of Colocino’s 2009 calendar year filing to the State Ethics Commission. a. Solicitor Dieter represented that the form was a copy of a filing maintained in a personal file by Deborah Colocino. 44. The Statement of Financial Interests form maintained by Deborah Colocino for the 2009 calendar year included the following information: a. Calendar Year: 2009; Dated: 05/03/10 on form SEC-1 Rev. 01/09; Position: Council; Creditors: None; Direct/Indirect income: None; All Other Financial Interests: None. b. This form is dated May 3, 2010, two days after the required filing date for the form. 1. Colocino maintains that she dated the form on the same day it was provided to her by Borough representatives. c. The form does not contain a date/time stamp reflecting whether it had been received by the Borough. d. This form was not on file with other completed Jersey Shore Borough Statement of Financial Interests forms at the time a compliance review was conducted by the State Ethics Commission on September 24, 2013; however, Colocino maintains that she submitted the form to the Borough on the same date she received the form from Borough representatives. 45. Deborah Colocino received $1,200.00 in Borough/public funds as compensation for her service as a Borough Council Member during calendar year 2010, at a time when she did not have a 2009 calendar year Statement of Financial Interests on file with the Borough. III.DISCUSSION: As a Council Member for Jersey Shore Borough (“Borough”) since January 4, 2010, Respondent Deborah Colocino, also referred to hereinafter as “Respondent,” “Respondent Colocino,” and “Colocino,” 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 Colocino violated Sections 1103(a), 1103(f), 1104(a), and 1104(d) of the Ethics Act: (1) when she used the authority of her public position for the private pecuniary benefit of herself and/or an immediate family member and/or a business with which a member of her immediate family is associated when she directed Borough Colocino, 13-021 Page 14 staff to issue payments to her husband and/or her husband’s company for landscaping services provided to the Borough; (2) when she voted for the payment of bills including payments of public monies to her husband and/or her husband’s landscaping company; (3) when those services were entered into between the Borough and her husband and/or her husband’s business without an open and public process; and (4) when she failed to file a Statement of Financial Interests (“SFI”) for the 2009 calendar year. 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 which the public official or public employee is associated, unless the contract has been awarded through an open and Colocino, 13-021 Page 15 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 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. 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. Colocino has served as a Member of Borough Council since January 4, 2010, and she currently serves as Chair of the Borough’s Finance Committee (“Finance Committee”). Borough Council is comprised of eight Council Members and a Mayor. Pursuant to the Borough’s normal bill paying process, Borough Council approves the payment of bills on a monthly basis. Bill lists are presented to Borough Council for approval each month by the Chair of the Finance Committee. Checks issued in payment of bills must have signatures from at least three of four specific Borough positions, including that of Chair of the Finance Committee. The Borough maintains approximately forty acres of public land, including Grieco Park and Veterans Park (“the Parks”). The Parks are located near the main thoroughfare of the Borough and receive greater attention to maintenance than other Borough property for aesthetic reasons. From approximately 1986 to 2005, Colocino’s husband, John Colocino (“Mr. Colocino”), provided landscaping/grounds keeping services for the Parks to the Borough on a part-time, contractual basis. Mr. Colocino does not offer landscaping/grounds keeping services through an incorporated or unincorporated/fictitious name business entity. From 2006 through 2008, the Borough utilized Borough employees and private contractors to provide maintenance and landscaping services at the Parks, but Borough officials were not satisfied with the quality of work or costs associated with maintenance of the Parks. Colocino, 13-021 Page 16 Around November 2008, Mr. Colocino engaged in a conversation with the Borough Manager regarding Mr. Colocino’s ability to provide landscaping services to the Borough during 2009. On November 17, 2008, Mr. Colocino submitted a proposal to the Borough Manager to provide spring cleanup and maintenance for the Parks during 2009. The total amount of the proposal was $3,800.00, to be paid in five monthly installments of $633.00 starting in April 2009 and one final payment of $635.00 in September 2009. Mr. Colocino and the Borough Manager subsequently executed an agreement for Mr. Colocino to provide landscaping services for the Parks for 2009 for a total amount not to exceed $3,800.00. The agreement that was executed did not include an automatic renewal clause or provisions for services to continue beyond September 2009. Borough Council did not take any official action authorizing the hiring of/contracting with Mr. Colocino to provide landscaping services to the Borough at the Parks during 2009. No signed agreements were in place between Mr. Colocino and the Borough when Colocino assumed her seat as a Member of Borough Council in January 2010. Between 2010 and 2013, the Borough took no action with regard to soliciting bids, quotes, or proposals for landscaping services at the Parks. Mr. Colocino continued to be compensated by the Borough for performing landscaping/grounds keeping services at the Parks from 2010 through 2013 without any official action by Borough Council to hire him or otherwise enter into a contractual relationship with him. The Borough Manager served as Mr. Colocino’s point of contact regarding the continuation of the landscaping/grounds keeping agreement from one year to the next. The Borough Manager did not solicit quotes or initiate a new written agreement with Mr. Colocino and made the decision not to bring the matter to Borough Council for a vote. Between 2010 and 2013, no formal executed agreements existed between the Borough and Mr. Colocino regarding landscaping/grounds keeping services for the Parks. Mr. Colocino would commence work around March or April of each year by contacting the Borough’s administrative staff to arrange for the delivery of mulch and flowers to the Parks. The Borough Manager was responsible for ensuring that Mr. Colocino was maintaining the Parks. Between 2010 and 2013, Mr. Colocino received twenty-four payments from the Borough totaling $15,997.00 for performing landscaping/grounds keeping services at the Parks. Mr. Colocino received $3,800.00 from the Borough in 2010, $3,997.00 from the Borough in 2011, and $4,100.00 from the Borough in both 2012 and 2013 for providing such services to the Borough. Invoices for Mr. Colocino’s services were mailed or hand-delivered to the Borough as well as submitted to the Borough by Colocino from her personal email account. On occasion, Colocino would contact Borough employees to inquire about the status of some of the payments due her husband. Not all payments to Mr. Colocino were included on monthly bill lists, and some payments were issued to him between Borough Council meetings to accommodate Colocino’s requests for immediate/expedited payment. Payments not included on monthly bill lists were “deemed approved” upon the actual check being signed by Borough officials. Between April 23, 2010, and August 20, 2013, Mr. Colocino was issued eleven Borough payments, totaling approximately $7,246.50, which were not included on a monthly bill list. These payments were made between Borough Council meetings in response to requests made by Colocino to Borough employees to expedite payment. The parties have stipulated that Colocino and/or Mr. Colocino realized a private pecuniary benefit as a result of Colocino utilizing the authority of her office as a Borough Council Member to direct Borough staff to expedite payments to Mr. Colocino for landscaping services provided to the Borough. Colocino participated in the approval of Borough bill lists which included payments to Mr. Colocino and signed, in her official capacity for the Borough, Borough checks issued Colocino, 13-021 Page 17 to him. Between July 27, 2010, and September 17, 2013, Colocino voted thirteen times to approve bill lists which included payments totaling $8,751.00 to Mr. Colocino for landscaping/grounds keeping services. Between April 23, 2010, and September 28, 2011, Colocino signed in her official capacity for the Borough twelve Borough checks totaling $7,797.00 that were issued to Mr. Colocino. Colocino also both voted to approve and signed in her official capacity for the Borough four Borough checks/payments totaling $2,600.00 that were issued to Mr. Colocino. As a Borough Council Member, Colocino is required to annually file an SFI by May 1 disclosing financial information for the prior calendar year. As of September 25, 2013, Colocino had no SFI for calendar year 2009 on file with the Borough. On October 28, 2013, the Borough Solicitor provided an email copy of Colocino’s SFI for calendar year 2009 to the State Ethics Commission, representing that it was a copy of an SFI maintained in a personal file by Colocino. The SFI for calendar year 2009 was dated May 3, 2010, and did not contain a date/time stamp reflecting whether it had been received by the Borough. Colocino maintains that she dated the form and submitted it to Borough representatives on the same day that it was provided to her by Borough representatives. 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 when Colocino utilized the authority of her public position to direct Borough staff to expedite payments to her husband and/or her husband’s landscaping company for landscaping services provided to the Borough, and when she voted to approve payment of bills, including payments of public monies to her husband and/or her husband’s landscaping company. b. That a violation of Section 1103(f) \[of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(f),\] occurred when contracts for landscaping services, in amounts of $500.00 or more, were entered into between the Borough and Colocino’s husband and/or \[her\] husband’s business without an open and public process. c. That a violation of Section 1104(a) \[of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1104(a),\] occurred when Colocino failed to file a Statement of Financial Interests for the 2009 calendar year. 4. Colocino agrees to make payment in the amount of $1,200.00 in settlement of this matter payable to the Jersey Shore Borough and forwarded to the Pennsylvania State Ethics Colocino, 13-021 Page 18 Commission within thirty (30) days of the issuance of the final adjudication in this matter. 5. Colocino agrees to file \[a\] complete and accurate Statement of Financial Interests with the Jersey Shore Borough through the Pennsylvania State Ethics Commission, for the 2009 calendar year within thirty (30) days of the issuance of the final adjudication in this matter. 6. Colocino agrees to not accept any reimbursement, compensation or other payment from Jersey Shore 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 1-2. In considering the Consent Agreement, we accept the recommendation of the parties for a finding that a violation of Section 1103(a) of the Ethics Act occurred when Colocino utilized the authority of her public position to direct Borough staff to expedite payments to her husband and/or her husband’s landscaping company for landscaping services provided to the Borough, and when she voted to approve payment of bills, including payments of public monies to her husband and/or her husband’s landscaping company. Colocino’s husband, Mr. Colocino, performed landscaping/grounds keeping services at the Parks for the Borough from 2010 through 2013. It would appear that the parties are treating Mr. Colocino as a self-employed individual in his capacity as a provider of landscaping/grounds keeping services. A self-employed individual is encompassed within the Ethics Act’s definition of the term “business.” See, 65 Pa.C.S. § 1102. Mr. Colocino received twenty-four payments from the Borough totaling $15,997.00 for providing such services to the Borough. Between April 23, 2010, and August 20, 2013, Mr. Colocino was issued eleven Borough payments, totaling approximately $7,246.50, which were not included on a monthly bill list and were made between Borough Council meetings. The parties have stipulated that Colocino and/or Mr. Colocino realized a private pecuniary benefit as a result of Colocino utilizing the authority of her office as a Borough Council Member to direct Borough staff to expedite payments to Mr. Colocino for landscaping services provided to the Borough. Colocino further used the authority of her office as a Borough Council Member: (1) when, between July 27, 2010, and September 17, 2013, she voted thirteen times to approve bill lists which included payments totaling $8,751.00 to Mr. Colocino for landscaping/grounds keeping services; (2) when, between April 23, 2010, and September 28, 2011, she signed in her official capacity for the Borough twelve Borough checks totaling $7,797.00 that were issued to Mr. Colocino; and (3) when she both voted to approve and signed in her official capacity for the Borough four Borough checks/payments totaling $2,600.00 that were issued to Mr. Colocino Colocino, 13-021 Page 19 Based on the Stipulated Findings and the Consent Agreement, we hold that Colocino violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when she utilized the authority of her public position to direct Borough staff to expedite payments to her husband/husband’s business for landscaping services provided to the Borough, and when she voted to approve payment of bills including payments of public monies to her husband/husband’s business. We accept the recommendation of the parties for a finding that a violation of Section 1103(f) of the Ethics Act occurred when contracts for landscaping services in amounts of $500.00 or more were entered into between the Borough and Colocino’s husband/husband’s business without an open and public process. Between 2010 and 2013, the Borough took no action with regard to soliciting bids, quotes, or proposals for landscaping services at the Parks, and no formal executed agreements existed between the Borough and Mr. Colocino regarding landscaping/grounds keeping services for the Parks. Mr. Colocino received $3,800.00 from the Borough in 2010, $3,997.00 from the Borough in 2011, and $4,100.00 from the Borough in both 2012 and 2013 for performing landscaping/grounds keeping services at the Parks for the Borough. Mr. Colocino was compensated by the Borough for performing such services without any official action by Borough Council to hire him or otherwise enter into a contractual relationship with him. We hold that a violation of Section 1103(f) of the Ethics Act, 65 Pa.C.S. § 1103(f), occurred when contracts for landscaping services in amounts of $500.00 or more were entered into between the Borough and Colocino’s husband/husband’s business without an open and public process. We further accept the recommendation of the parties and we hold that a violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Colocino failed to file an SFI for the 2009 calendar year. It appears that the Investigative Division in the exercise of its prosecutorial discretion has elected to non pros the portion of the allegations pertaining to Section 1104(d) of the Ethics Act. As part of the Consent Agreement, Colocino has agreed to make payment in the amount of $1,200.00 payable to Jersey Shore Borough and forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter. Colocino has also 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. Colocino has further agreed to file a complete and accurate SFI for the 2009 calendar year 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, Colocino is directed to make payment in the amount of $1,200.00 payable to Jersey Shore Borough and forwarded to th this Commission by no later than the thirtieth (30) day after the mailing date of this adjudication and Order. Per the Consent Agreement of the parties, Colocino 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. Colocino, 13-021 Page 20 To the extent she has not already done so, Colocino is directed to file a complete and accurate SFI for the 2009 calendar year with the Borough, through this Commission, th by no later than the thirtieth (30) day after the mailing date of this adjudication and Order. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV.CONCLUSIONS OF LAW: 1. As a Council Member for Jersey Shore Borough (“Borough”) since January 4, 2010, Respondent Deborah Colocino (“Colocino”) 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. Colocino violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when she utilized the authority of her public position to direct Borough staff to expedite payments to her husband/husband’s business for landscaping services provided to the Borough, and when she voted to approve payment of bills including payments of public monies to her husband/husband’s business. 3. A violation of Section 1103(f) of the Ethics Act, 65 Pa.C.S. § 1103(f), occurred when contracts for landscaping services in amounts of $500.00 or more were entered into between the Borough and Colocino’s husband/husband’s business without an open and public process. 4. A violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Colocino failed to file a Statement of Financial Interests for the 2009 calendar year. In Re: Deborah Colocino, : File Docket: 13-021 Respondent : Date Decided: 6/16/14 : Date Mailed: 7/14/14 ORDER NO. 1643 1. As a Council Member for Jersey Shore Borough (“Borough”), Deborah Colocino (“Colocino”) violated Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), when she utilized the authority of her public position to direct Borough staff to expedite payments to her husband/husband’s business for landscaping services provided to the Borough, and when she voted to approve payment of bills including payments of public monies to her husband/husband’s business. 2. A violation of Section 1103(f) of the Ethics Act, 65 Pa.C.S. § 1103(f), occurred when contracts for landscaping services in amounts of $500.00 or more were entered into between the Borough and Colocino’s husband/husband’s business without an open and public process. 3. A violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Colocino failed to file a Statement of Financial Interests for the 2009 calendar year. 4. Per the Consent Agreement of the parties, Colocino is directed to make payment in the amount of $1,200.00 payable to Jersey Shore Borough and forwarded to the th Pennsylvania State Ethics Commission by no later than the thirtieth (30) day after the mailing date of this Order. 5. Per the Consent Agreement of the parties, Colocino 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. 6. To the extent she has not already done so, Colocino is directed to file a complete and accurate Statement of Financial Interests for the 2009 calendar year with the Borough, through the Pennsylvania State Ethics Commission, by no later than the th thirtieth (30) day after the mailing date of this Order. 7. Compliance with paragraphs 4, 5, and 6 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